Mowle v Chelmsford Hospice Service [1995] UKEAT 162_95_1206

EAT
Mowle v Chelmsford Hospice Service
[1995] UKEAT 162_95_1206 · 1995-06-12

JUDGE HULL QC:

This is an appeal by Alan George Mowle from a decision of the Industrial Tribunal sitting at Bury St Edmunds on 21 December 1994. Mr Mowle was employed by the Respondents, Chelmsford Hospice Service, as a nurse. He was employed from November 1989 until 12 March 1994. In June 1993 he fell sick with a nervous or mental disturbance. He stopped work then. He furnished various Medical Certificates but there came a time when he was no longer entitled to be paid. On 7 February his employers sent him a letter of dismissal stating:
"I am formally writing to advise you of your termination of employment, on one month's notice, commencing on the 12th February when your sick pay expires. I, therefore, calculate that your last date of employment will be the 12th March 1994. The grounds for your termination are incapacity due to ill health."
On 5 May Mr Mowle presented his application to the Industrial Tribunal. He complained in terms of harassment leading to a nervous breakdown. Turning to his application in its unamended form in our bundle, he sets out that his complaint is harassment leading to a breakdown (nervous) and gives the usual particulars of himself and the Respondents, saying that he was a full-time Staff Nurse, Grade `E', mainly on night duty. He came to box 9 on the Form which says:
"If your complaint is not about dismissal, please give the date when the action you are complaining about took place (or the date when you first knew about it)"
where he wrote `June 1993'. Then below he said his object in bringing the case was to obtain compensation and then he set out the details of his complaint in box 12 stating:
"I was the only full time, and only male nurse, in the night team. I believed in quietness and minimal, other than to relieve pain quickly, interruption of the patient's rest.
This was not the attitude of some of the part time nurses but I persisted in "patients first" and quietness first and pain relief first. I was obstructed in this many times.The day staff, one Sister Lesley in particular made life difficult for me, not supporting me. Ultimately with Matron's help there was concerted activity to get me to leave.

Ultimately I broke down under the pressure."

Anybody receiving that, and in particular the Respondents, might be pardoned for wondering exactly what the nature of the complaint was and how it should be analysed legally. In the minds of any lawyer or anybody who knows anything about these matters, inevitably one tends to put things into separate compartments, corresponding to such categories as unfair dismissal, sexual discrimination, racial discrimination or whatever it may be. Laymen do not necessarily think like that. He is complaining that there was concerted activity to get him to leave. That sounds like a complaint of unfair dismissal. There is certainly a complaint that he was harassed. His colleagues disagreed with him. As I said, the Respondents might well be pardoned for wondering what it was about and in their answer in the Notice of Appearance, it is clear that they were in some doubt about what this might mean. They say:
"3. The application specifically refers not to dismissal but to an incident dated `June 1993'. The application was filed on the 6th of May 1994 and is out of time.
4. The respondent respectfully reserves the right to amend this response in the event that the applicant is given leave to amend his application or if it is otherwise particularised."They have not referred to the specific statutory provisions under which it is out of time. It might be that if it was a case of constructive dismissal, then it was out of time, because by the time he finally left the company he would undoubtedly have approbated the contract and not exercised his right to end it. It might be that if it was a complaint of sex discrimination then that would be out of time, because there is, generally speaking, three months to make such a complaint under the relevant statutory provisions. The Respondents' case was that it was not within the jurisdiction of the Tribunal.In those circumstances, there came a time when Mr Mowle, on 2 August 1994, wrote to the Tribunal:
"At the time I wrote my IT1, I was emotionally very upset on active medication (Prozac). I am very much improved emotionally but dependent on continuing Prozac therapy, which was increasingly effective, to a certain point which does not yet enable me normal equanimity. I commence a group psychotherapy course in September 1994, which lasts 18 months on a one and one half hour weekly basis. I have been under the care of a Consultant Psychiatrist, who made a domiciliary visit to my house, from the first day of my sickness in relation to my employment at the Chelmsford Hospice."
Anybody reading that would say, `well, small wonder that his application is somewhat confused and confusing'. One says to oneself `it is rather a pity, perhaps, that unlike the procedure in the ordinary courts, there is no procedure in the Industrial Tribunal known to us under which people who are suffering from any form of mental illness or disability are required to obtain the services of a next friend, or if they are defending a guardian ad litem.' But there it is, he had done his best. He went on:
"My sickness, which was used as the reason for my dismissal, was directly caused by the overt action of direct harassment against me. The end result being constructive dismissal, insofar as the harassment caused my sickness, which was used as the reason to dismiss me. I hope that you will accept that constructive dismissal was my intended reason for my IT1."
It was considered by the Chairman, Mr J Cole, who caused a letter to be written to Mr Mowle stating:
"Thank you for your letter dated 2 August 1994.
It has been referred to a Chairman of the Industrial Tribunals (Mr J Cole) who has directed that box 1 of the originating application be amended to read "unfair dismissal" as requested. Accordingly this has been done."We have been told by Mr Moore that he takes no point on constructive dismissal or dismissal and it is recognised by the Applicant's Counsel, Mr Bowers, that this is not constructive dismissal in the ordinary sense, it is a case of unpleasant behaviour, leading to the illness, which led to the dismissal. The letter continues:
"The Chairman has allowed the respondents 14 days in which to amend their Notice of Appearance if they wish to, so the preliminary hearing arranged for Thursday 18 August 1994 at Bury St Edmunds has been postponed to enable them to do so.
As the claim is now for unfair dismissal, the Chairman has said that it would not be appropriate to have a Preliminary Hearing and when the case is re listed it will be for a full hearing."It appears that the Chairman, Mr Cole, well understood the matter; the complaint which was to be made and which should have been made, so far as the correspondence went, was one of unfair dismissal. He was allowing what he understood to be the appropriate amendment. We turn to the amended IT1, where instead of the "unfair dismissal" for which the Chairman had given leave, an Officer of the Tribunals has written in "constructive dismissal" and the initials ABOC (amended by order of the Court) dated 8 or 9 August 1994. So that amendment was made. It was in those circumstances that the matter came before the Industrial Tribunal without any further amendments.It appears to us that the Industrial Tribunal approached this in a strange way. The Tribunal could have concerned itself with the question whether, this amendment having been made, it should now be allowed or disallowed, on the basis that it had been done ex parte and should be reconsidered in the light of representations from both parties. The Tribunal do not seem to have approached it in that way at all. They said (treating the amendment as having been made):
"The question we have to determine is whether the amendment made in August following the applicant's letter to the tribunal of 2 August enclosing his letter of 6 April was a new application or whether that matter of constructive dismissal was patent within the original application."
That appears to us to overlook the authorities entirely. It is applying a strict test which might be applied in the High Court and saying "is this raising a new cause of action out of time?" in which case of course the court has a very limited power to allow the amendment. It seems to be applying that test. The authorities show perfectly plainly that that approach has no place in the Industrial Tribunal's consideration of an application for leave to amend after the three months. Delay of course is always a factor; as delay causes prejudice. If the amendment stands, is it going to cause prejudice to one party or the other? If it does cause such prejudice, what other factors have to be taken into consideration? Would it be just to say that one party is more prejudiced than another? The overriding consideration may be that people who make complaints timeously but clumsily, not making them in proper artistic language, not making themselves clear, should have their complaints put right by a proper amendment. This is not a pleading point, but simply to make all clear. Those are the sort of considerations which the Industrial Tribunal should have in mind. Instead, they talk about whether this application on the ground of unfair dismissal is patent within the original IT1. It seems to us that that is a complete mis-direction of themselves by the Industrial Tribunal. Mr Moore seeks to support it by saying, `well, if the Industrial Tribunal are right in saying that on a true view this was a claim for sex discrimination, then it was a question of considering the original application as being out of time and this was a mere amendment to that'.It appears to us that the only approach which they could have adopted which was correct in law and in accordance with the authorities, was to say this:
"First of all, if the matter is raised, is this amendment to stand? It has been made. Are we to set it aside?"
Then they had to consider the matter as one of discretion, not considering whether it was patent within the original application that was made to them; not saying what the original application meant; but looking to see whether it was just to allow an amendment which would make all plain and allow a claim for unfair dismissal to be tried by them. Instead, they went on to consider all the questions which arise under Section 67 of the Employment Protection Act on the basis that this was a new claim. Was it reasonably practicable to bring it within three months from the effective date of determination? It appears to us that that is a completely misconceived approach. Whatever one can say about the considerations which Mr Moore has laid before us, the Tribunal were on any view adopting the wrong approach to the question of allowing the amendment to stand or striking it out as being an unjust amendment, which should not stand.The nature of the complaint, which may or may not succeed, is that the Applicant is saying that he was discriminated against, persecuted and harassed at work. This led to his mental illness; he is under a psychiatrist. This led to his having to take time off; this led to his dismissal. There was a concerted campaign to get rid of him. That does not perhaps fit tidily into any of one's mental boxes because it is a combination of saying: he was ill-treated, that led to illness and the illness led to his being unfairly dismissed. That is the complaint which he now wishes to make. One asks, why should he not make it? Unless there is some good reason, in the discretion of the Industrial Tribunal, to say that this late amendment was an unjust one and should not have been allowed.The Industrial Tribunal applied completely the wrong test in exercising their discretion. They seem to have thought that it was not a matter of discretion at all, but strict law. Could this complaint have been made within the three months? They said that it could. It was reasonably practicable to do so, and therefore the complaint must be dismissed. It seems to us that that is the wrong approach. Mr Bowers told us that in the circumstances we could exercise discretion ourselves and say that this application should be amended; that is to say, that the amendment already made should stand. We think, with respect, that that is wrong. It may very well be that the Respondents, when the matter is approached in the correct manner, will wish to adduce evidence about hardship. The Applicant may wish to adduce evidence of various matters material to the Industrial Tribunal's exercise of its discretion. We are by definition not a Tribunal of fact and we are certainly not satisfied that all matters material to the exercise of the Industrial Tribunal's discretion were indeed adduced. Certainly they do not appear from the papers in front of us. In those circumstances we are not prepared to exercise the discretion which is given by statute and statutory instrument to the Industrial Tribunal and we say that it should, in due course, be exercised by a different Industrial Tribunal, because it would inevitably be embarrassing for this Tribunal, having once approached the matter in the wrong way (as we find it to be), then to change their minds and put their minds on the correct path and try to reconsider the matter de novo. It should be considered by an Industrial Tribunal differently constituted, if the Respondents wish to apply for the amendment to be disallowed. That of course will have to be made plain at the hearing. So far as we are concerned, this case is to be remitted to a different Tribunal to hear such matters as the parties lay before them.