Meiehofer v Journeys Friend Ltd & Anor [1996] UKEAT 1372_95_2901

EAT
Meiehofer v Journeys Friend Ltd & Anor
[1996] UKEAT 1372_95_2901 · 1996-01-29
MR JUSTICE MUMMERY (PRESIDENT) : On 24 January 1994 Mrs Svetlana Meiehofer was dismissed from her position as a shop manager by the first Respondent, Journeys Friend Limited.In an originating application, dated 28 January, she made a claim against Journeys Friend Limited and also against Mr Val Le Picq, an employee of Journeys Friend Limited. In box 1 of the IT1, which was completed by the Central London Law Centre in the Charing Cross Road on behalf of Mrs Meiehofer, it was stated that the type of complaint that she wanted the Tribunal to decide was "sex discrimination". In Box 8 she gave the dates of her employment as from 24 August 1992 to 24 January 1994. Box 10 of the IT1 asks the complainant to give details of the complaint. That says:

"See attached grounds of application"

The attached grounds, which run to 2½ typed pages, broken down into 23 paragraphs, give particulars of Mrs Meiehofer's complaint. It is unnecessary to examine the details. Her complaint is to be the subject of a hearing before the Industrial Tribunal, fixed for 14 February. All we need refer to for the purposes of this appeal is paragraphs 22 and 23. She says:
"22. I have been unlawfully discriminated against contrary to the Sex Discrimination Act 1975. I suffered direct discrimination in:

a. the harassment by Mr Val De Pique

b. my transfer to Kings Cross

c. the manner in which Mr Winston conducted the meetings of 17th and 24th November 1993 and their outcome, including my suspension

d. the final written warning dated 22nd December 1993

e. my dismissal by letter dated 24th January 1994.22. Further or alternatively, I was victimised in the above matters as a result of complaining of sexual harassment."The claims were contested by both Respondents in notices of appearance dated in March 1994. The notice of appearance by Journeys Friend Limited stated in Box 3 that they agreed that Mrs Meiehofer was dismissed. They stated that the reason for her dismissal was:

"Unsuitable performance of duties"

They set out in 3½ pages, broken down into 23 answers to the 23 paragraphs of Mrs Meiehofer's complaint, their response. They deny sex discrimination. They set out in detail the reasons for their strong denial of that allegation. There is no dispute that they dismissed Mrs Meiehofer, though there is a lot of dispute about the circumstances in which, and the reason for which, she was dismissed.Mr Val Le Picq put in a notice of appearance dated 31 March 1994, in which he denied that he had dismissed the Appellant. He was not her employer. Otherwise he relies on the detailed particulars set out in the case of Journeys Friend Limited.This appeal arises out of the unsuccessful application made by the Applicant's advisers for leave to amend. In order to decide Mrs Meiehofer's appeal against the refusal of the amendment, it is necessary to examine the circumstances in which she made the application, the nature of the application and the reason why it was refused.The application for leave to amend was made by letter dated 25 October 1995 sent by the Central London Law Centre to the Regional Secretary of Industrial Tribunals at London (North). The application was in these terms:
"I would seek leave to amend the Applicant's originating application to include a claim of unfair dismissal and/or discrimination against the First Respondent under Article 119 of the Treaty of Rome. This is a cause of action which flows from the implications of the decision of the Court of Appeal in R v SS [Queen v Secretary of State] for Employment ex parte Seymour-Smith & Perez [1995] IRLR 464, which as you are aware is on appeal to the House of Lords."
The background to that letter is that the state of the law when Mrs Meiehofer started her proceedings was that the Employment Protection (Consolidation) Act 1978 contained provisions which made it necessary for any person claiming unfair dismissal to satisfy the qualification of two years' continuous employment. An unsuccessful attempt had been made in the Divisional Court to obtain judicial review of the lawfulness of that qualifying requirement. That application was made in the proceedings against the Secretary of State for Employment ex parte Seymour-Smith and Perez . There was then an appeal. That was successful. The Court of Appeal made certain declarations about the qualifying requirements which had been amended by Orders in Council. The basis of those declarations was the incompatibility of the two-year requirement with the provisions of the Equal Treatment Directive and the indirect discriminatory effect of the requirement.The decision of the Court of Appeal is referred to in the letter of application for leave to amend. It is important to note that, in the application for leave to amend, there is no reliance by the Applicant on any facts other than those stated in the particulars in the IT1 dated 24 January 1994. The application is simply for leave to amend to include a claim of unfair dismissal and/or discrimination. No new facts are introduced.The Industrial Tribunals' Rules, contained in the 1993 Regulations, provide in Rule 1(1) that:
"Where proceedings are brought by an applicant, they shall be instituted by the applicant presenting to the Secretary an originating application, which shall be in writing and shall set out -
[(a) and (b) omitted as immaterial to this appeal] (c) the grounds, with particulars thereof, on which relief is sought."The power to grant leave to amend the grounds and particulars is covered by Rule 13(1) which provides that:
"Subject to the provisions of these rules, a tribunal may regulate its own procedure."
There is no rule which expressly contains a power of amendment. The provisions of Rule 13(2)(d) deal with amendment on specific ground that the contents of an application or notice of appearance may be scandalous, frivolous or vexatious.The legal position is that the Industrial Tribunal to whom this application was made had a wide discretion to decide whether or not to grant the amendment sought.The approach of the Tribunals to amendment and the principles on which they act are stated in the judgment of the Master of the Rolls (Lord Donaldson) in the Court of Appeal in British Newspaper Printing Corporation (North) Ltd v Kelly [1989] IRLR 222 at page 223 paragraph 9. Lord Donaldson said this:
"When they sought leave from the Industrial Tribunal the Industrial Tribunal were divided, the majority being against allowing such an amendment. They referred themselves to the case of Cocking v Sandhurst Ltd (1974) ICR 650, which seems to be treated as the leading case on this subject although it has to be said it has been followed in a number of cases in which occasionally a different judge was involved. The essence of that case is that:
`in deciding whether or not to exercise their discretion to allow an amendment, the Tribunal should in every case have regard to all the circumstances of the case. In particular they should consider any injustice or hardship which may be caused to any of the parties including those proposed to be added if the proposed amendment were allowed, or as the case may be, refused.'"There is no question here of adding additional parties. There is no question even of adding any additional factual allegations or particulars.That was the discretion to be exercised. There is one other point to be noted at this stage. This was not an application for an extension of time for bringing a case of unfair dismissal. On this point it is important to note the provisions of s.67 of the Employment Protection (Consolidation) Act 1978:
"(1) A complaint may be presented to an industrial tribunal against an employer by any person ... that he was unfairly dismissed by the employer.
(2) Subject to subsection (4), [that is not material for this case] an industrial tribunal shall not consider a complaint under this section unless it is presented to the tribunal before the end of the period of three months beginning with the effective date of termination or within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of the period of three months."On 3 November 1995 a letter was sent to the Central London Law Centre from London (North) Industrial Tribunals saying this:
"Your letter dated 25 October 1995 has been referred to a Chairman of the Tribunals who has refused your request to amend the application to bring a claim of unfair dismissal. The application has always been on the grounds of sex discrimination and the Applicant could have alleged a claim for unfair dismissal within the relevant time period."
There is no reference in that letter to the discretion to grant leave for amendments. The rejection of the application is simply on the basis that the claim for unfair dismissal was not made within the relevant period and it could have been.On 6 November the Central London Law Centre replied, expressing concern at the Chairman's decision and asking for full reasons for the refusal of the application to amend. The letter pointed out that:
"... the Court of Appeal decision in Seymour Smith was handed down on 31st July 1995 and the application to amend was made within three months of that date."
On 10 November a reply was sent in response to the request stating this:
"In accordance with long standing principle, the decision in the case of Seymour Smith is declaratory of what the law was. It does not create new law. The Applicant in this case could have brought a claim alleging unfair dismissal within 3 months of the dismissal. Many applicants have brought such claims in the past. The fact that the Applicant has realised that the law may be different from what she thought is not a ground to add a new claim."
This is an appeal against the decision in those two letters from the Industrial Tribunal. The notice of appeal was served on 23 December. The grounds of appeal are set out. It is complained that the Tribunal Chairman failed to adopt a fair procedure and failed to give Mrs Meiehofer an adequate opportunity to present her case. The matter raised issues of fact and law, which could only be satisfactorily resolved by an oral hearing. That point has not been pursued on the hearing today.The other grounds are that the Tribunal Chairman erred in finding that Mrs Meiehofer was obliged to bring her claim within three months of the date of dismissal. It is argued that her claim is based on failure to implement European Community Law. The statutory 3 months time limit does not apply to that claim.That ground is not pursued today in the light of the decision of the Court of Appeal handed down in the case of Biggs v Somerset County Council last Friday. That decided the statutory three-month period did apply in relation to unfair dismissal claims, even though they were based on Community Law. Mr Westgate, in his skeleton argument, reserves the right to argue that the Court of Appeal have wrongly decided the Biggs case.The next point taken in the notice of appeal is that, if the application was barred by reason of the time-limit, the Tribunal Chairman erred in failing to consider whether it was reasonably practicable for Mrs Meiehofer to present her case within three months of the date of dismissal and, if not, whether she had presented her complaint within a reasonable time thereafter.Again, that is not pursued today in view of the reasoning of the Court of Appeal in the Biggs case on "reasonable practicability" in s.67 of the Employment Protection (Consolidation) Act 1978.It is also argued that the Tribunal Chairman erred in treating the fact that an unfair dismissal complaint would have been out of time if presented on 25 October 1995 as determinative of the application to amend. He should have considered whether the facts in the originating application were sufficient to enable her to present a complaint of unfair dismissal. He then should have considered whether, in all the circumstances, an application for leave to amend should be allowed. In considering whether or not to grant leave to amend, the Tribunal Chairman ought to have considered what prejudice, if any, would be caused by allowing the amendment; the terms of the statutory instrument inserting a qualifying period of two years on the right to claim unfair dismissal; and the fact that the application for unfair dismissal could not reasonably have been made until after the decision of the Court of Appeal in Seymour Smith .In his oral submissions, supported by skeleton argument on the hearing today, Mr Westgate amplified the main points in his argument. He submitted that the Industrial Tribunal Chairman had not exercised the discretion at all or had exercised it contrary to established legal principles. The error of the Tribunal Chairman was in considering only whether the application was made within three months or could have been so made. He treated the application as a new claim, but different principles apply where the Applicant applies to amend an originating application to add a new claim. He pointed out that there is no time-limit for amending an originating application.The core of his submission is that the decision whether or not to allow an amendment is a discretionary matter. Where the originating application has been first presented within the time-limit, appropriate both for the unamended claim and the amended claim, the over-riding principle is that the discretion should be exercised by reference to all the circumstances. The matters which require to be considered are the extent of the delay, the reason for the delay, the prejudice which would be caused to a party in allowing the amendment, the scope of the amendment, whether it seeks to introduce new facts or whether it seeks only to attach a new or alternative legal label to facts already alleged.He submitted that, had the Tribunal Chairman exercised his discretion in this case or had they exercised it in accordance with correct legal principles, he would have allowed the amendment. As to the reason for the delay, this was explicable by the current uncertainty in litigation in the High Court and the Court of Appeal as to the relevant qualifying limits Order and its validity. The order has been in force at all material times. There has not yet been a decision quashing it. The Court of Appeal declined to make such an order. It was not reasonable to seek to bring a claim until after the judgment of the Court of Appeal in Seymour Smith had been considered. If a claim had been brought before then it ran the risk that the application would be made by the Respondent to strike it out because, on the dates given by Mrs Meiehofer in her IT1, she had not served for a continuous period of two years.On the matter of prejudice, if she cannot bring her claim, the effect of refusing the amendment would be to prevent her from pursuing a legitimate cause of action against her employer. Looking at the prejudice which the Respondents would suffer, if the amendment were made, that would simply be having to meet a different head of claim based on the same facts. Since the facts of her unfair dismissal claim and her discrimination claim overlap and no new facts are sought to be introduced on the amendment, there would be no prejudice to the Respondents. They would have to defend the proceedings in any event. Prejudice was a matter of little, if any, weight on the exercise of the discretion.Mr Westgate emphasized that he is not seeking to introduce new facts. He made his point by saying that, if box 1 of the IT1 had been left blank, instead of saying sex discrimination, his client would have been entitled to pursue both the claim of sex discrimination and unfair dismissal on the basis of the facts stated in the attached particulars.He then sought to go into the merits of the claim. It is not necessary to consider the merits for the purposes of deciding this appeal. He also sought, in his skeleton argument, to deploy arguments relevant to the time-limits applicable to the claim and questions of reasonable practicability which might be relevant under s.67(2). We do not think it is necessary to explore those matters for the purposes of deciding this appeal.For all those reasons, Mr Westgate submitted in his excellent arguments that this is a rare case in which we should interfere with the exercise of the discretion on the basis that it had either not been exercised at all and that, instead of directing itself to the exercise of a discretion to grant leave to amend, the Tribunal looked wrongly and solely at the question of time-limits. If there was an exercise of the discretion, it had not been by acting on correct legal principles, or by taking into account all the relevant circumstances such as reasons for delay, prejudice and so on.He submitted that we should allow the appeal and we should, ourselves, grant leave to amend. Under Schedule 11, paragraph 21(1) of the 1978 Act, this Tribunal has power, for the purposes of disposing of an appeal, to exercise any powers which the Industrial Tribunal could have exercised. He opposed remission of the case for further consideration of the Tribunal Chairman on the amendment point on the grounds that there were time constraints. This matter is due to be heard in just over two weeks. If it were remitted, there is only one course that the Industrial Tribunal could properly take in the light of his submissions. That is to allow the amendment.In our view, the submissions made by Mr Westgate are correct. For the reasons which he has given in his arguments, we allow the appeal and allow the amendment.We have taken full account of the arguments submitted by Mr Brabbins on behalf of Journeys Friend Ltd. Only Journeys Friend Ltd is concerned with this point. There is no claim for unfair dismissal against Mr Le Picq because, as already explained, he was not Mrs Meiehofer's employer.Mr Brabbins' arguments were largely based on a recent decision in the Industrial Tribunal, the case of Coker v The Diocese of Southwark decided by the Chairman of the Industrial Tribunal and is reported in 1995 ICR 563. Before we go to the parts of that decision relied on. We should outline the general way in which Mr Brabbins puts his case on this aspect. He says that the originating application presented by Mrs Meiehofer claimed only sex discrimination. A claim for unfair dismissal is a wholly different claim. It is made under a distinct piece of legislation, namely, the 1978 Act, not the 1975 Sex Discrimination Act. He accepts that the Sex Discrimination complaint was brought in time, but the mere submitting of a claim within time under the 1975 Act cannot preserve a claim under the 1978 Act where the claim under the 1978 Act was outside the time-limit in s.67(2). The application for leave to amend to bring the unfair dismissal claim was well outside the three months for bringing an unfair dismissal claim. He submitted that it was not a case where the applicant would be entitled to any extension of time for bringing it because, in the light of the Court of Appeal's decision in Biggs v Somerset County Council , it was impossible for Mrs Meiehofer to say that it was not reasonably practicable for her to have brought her case within time. She knew all the facts. The only reason she had not made a claim for unfair dismissal was because of the two-year qualifying period point. The fact that the Court of Appeal had later said that that was incompatible with European Community Law and, therefore, inapplicable, did not make it impracticable to bring her claim within time. As is made clear in Biggs , reasonable practicability is a question of looking at the facts. You cannot say that it was not reasonably practicable to bring a claim within time because you did not know what would be the legal position taken by the Courts until after the time had expired.For all those reasons, he said that there was no error by the Tribunal in refusing leave to amend. Mr Brabbins supported his argument by citation from the report of the Coker case, from which it appears that an application was made by Mr Coker, in his dispute with the Diocese of Southwark, to introduce a claim of race discrimination in proceedings in which his only claim had been for unfair dismissal. The background to the legal dispute, so far as it is relevant for this judgment, is that Dr Coker had applied to an Industrial Tribunal in 1986, apparently alleging race discrimination in connection with the fact that his ordination had not taken place. He withdrew his application and he was subsequently ordained. There were then disagreements between him and the Anglican Church that led to him making another application to the Industrial Tribunal in August 1994 complaining of unfair dismissal. He submitted that application within the time-limits in the 1978 Act. His application and, according to paragraph 11 of the decision, the accompanying details made no mention of an application for racial discrimination. The first time that was mentioned was in the formal notice of originating application, received in September 1994. That application was out of time for making a complaint of racial discrimination. The Chairman considered an application to extend time. That is clear from paragraphs 12 and 13 of the decision. He said:
"The applicant invited me to extend the time on the ground that it was just and equitable to do so."
The basis of his submission was that his complaint of racial discrimination was part and parcel of the facts on which his claim for unfair dismissal was based and that, since the same facts were involved, it would be just and equitable to allow him to develop his claim.That argument was rejected. It is clear that under the Race Discrimination Act 1976 there is a wide discretion to extend the time for bringing a complaint out of time. That can be allowed if it is a case which the Tribunal considers just and equitable to extend the time. The Chairman did not consider it was just and equitable to do this. He observed in paragraph 12 that:
"... that it is not permissible [for applicants] to add wholly new grounds to an originating application when a claim on that new ground would be out of time."
He said that, in this case, it was not just and equitable to extend the time. He said in paragraph 11:
"In my view there is no ground for extending the time limit save that there is in existence an allegation of racial discrimination based on a set of facts which form the substance of a claim for unfair dismissal. If I were to permit that to justify extension I would have difficulty in comprehending what situations were outside the boundaries of the equitable jurisdiction to extend. My conclusion, therefore, is that the application in respect of racial discrimination is out of time and that an industrial tribunal has no jurisdiction to consider that claim."
One fact which influenced him in that decision is that the applicant in that case had made an earlier application for racial discrimination, which he had withdrawn, and he (the Applicant) agreed that:
"... at that time, he was well aware of the time limit on claims for racial discrimination. He says that he had forgotten about that time limit at the time when he put in the various applications from which the present proceedings stem. I find it difficult to believe that had he addressed his mind to the possibility of another claim for racial discrimination in August 1994 he would not have called to mind his experience in the earlier claim."
In our view, that decision does not help the Respondents on this appeal. It is not dealing with the discretion to amend. It is dealing with an application for an extension of time. It is not dealing with a case like the present where all that is sought is to attach an additional label to the detailed particulars set out in the grounds of complaint. All that is sought by the Applicant is that, on the basis of the facts advanced in her originating application in time, she wishes to claim unfair dismissal as well as sex discrimination. The core of her complaint of sex discrimination is the ultimate act of dismissal. There are preceding acts but she is complaining that she was dismissed and she is saying that that dismissal was unlawful because it was the consequence of sex discrimination.There is no prejudice to the Respondent. They answered with a notice of appearance that gives a different reason for dismissal. They accept she was dismissed, but not for the reasons alleged against them.This is simply a question of putting an additional label on the relief sought on the basis of the grounds stated.It appears to us from the Coker case that not only was the Chairman considering a different jurisdiction (ie, extension of time). He was also dealing with a different situation. He was dealing with a situation that, though it involved the same facts, was one in which the Applicant was aware of the time-limits and gave an explanation for not observing them that was unacceptable to the Tribunal. The Chairman could not believe the reason given. He found it difficult to believe that, had he addressed his mind to the possibility of a claim for racial discrimination, he would not have called to mind his earlier experience.The case of Coker is distinguishable as being not only on different facts but in relation to a different jurisdiction from the present case.We, therefore, do not accept Mr Brabbins' arguments that this appeal should be dismissed. The essence of our decision is that Mrs Meiehofer has been claiming relief throughout on the basis of facts alleged by her, which include an allegation that she was dismissed unlawfully. She is not to be denied the amendment which she seeks, assuming that the amendment is necessary (on which there may be doubts), simply because she has not used the words "unfair dismissal" in box 1. This Industrial Tribunal Chairman erred in law in refusing the amendment that was sought. We will allow the appeal and grant the amendment.