Taylor v H Backhouse (Baker Street) Ltd [1997] UKEAT 491_97_2904

EAT
Taylor v H Backhouse (Baker Street) Ltd
[1997] UKEAT 491_97_2904 · 1997-04-29

JUDGE PETER CLARK :

This is the third appeal to the Employment Appeal Tribunal by Miss Taylor in this case. In giving judgment in the second appeal on 3 December 1996 Morison J. began "This case has an unfortunate history". That unfortunate history continues.In the beginning Miss Taylor was employed by the Respondent as a relief betting shop manager from 9 July 1990 until her dismissal on 14 July 1993.On 22 September 1993 she presented an Originating Application to the Central Office of Industrial Tribunals. The case was assigned to the Bristol region.In box 1 of her form IT1 she complained only of unfair dismissal. She has, throughout this lengthy saga, been represented by Mr Andrew Millar, a friend who is not legally qualified. The Respondent has, since the first day of the first Industrial Tribunal hearing on 8 April 1994, been represented by Mr Martyn West.In box 10 of her IT1 she set out the details of her complaint. We shall return to that account later in this judgment.The matter first came on for hearing before an Industrial Tribunal sitting at Bristol on 8 April and 18 to 19 July 1994, chaired by Mr S. A. Berry. On that occasion her complaint was dismissed for the reasons contained in a decision promulgated on 10 August 1994.Against that decision Miss Taylor appealed. In essence her point was that in upholding the Respondent's defence of dismissal for some other substantial reason the Tribunal had failed properly to consider the question of reasonableness under section 57(3) of the Employment Protection (Consolidation) Act 1978 . That appeal was successful. On 29 November 1995 a division of this Appeal Tribunal allowed the appeal on the grounds that the Industrial Tribunal had not properly applied the provisions of section 57(3). The case was remitted to the Tribunal for reconsideration on that point.The matter went back to the Bristol Industrial Tribunal chaired by Mr Berry. The Tribunal heard submissions from the parties and again dismissed the complaint. Again she appealed.The Employment Appeal Tribunal presided over by Morison J, allowed this second appeal on 3 December 1996. It held that the Industrial Tribunal had not considered the matter afresh in the light of the first EAT judgment, but had effectively said that they had already applied their minds to section 57(3) first time around and that the first appeal should not have been allowed. As Morison J. put it at page 4 D - E of the transcript:
"It seems to us that there are serious concerns as to whether Miss Taylor's case has been given proper consideration by an Industrial Tribunal applying its mind to the two stage test which has to be applied in every case of unfair dismissal where the employer has put forward a reason which falls within what was section 57(2)."
In these circumstances the appeal was allowed and the case remitted to a fresh Industrial Tribunal in the Bristol region for rehearing. Because the case was now so old the Regional Chairman was asked to make the necessary arrangements for a hearing as soon as was reasonably practicable.By letter dated 7 February 1997 to the Industrial Tribunal Mr Millar applied for leave to formally amend the Originating Application to add a complaint of unlawful sex discrimination. Meanwhile a date for the remitted hearing of 17 February 1997 was postponed at the request of the Respondent by letter dated 16 January 1997. It seems that notice of the hearing on 17 February had been sent by the Industrial Tribunal to Mr Millar's old address, despite the fact that his new address had been on file for over a year. Mr Millar suggested in his letter that this was intentional, indicating a pattern of bias on the part of the Industrial Tribunal.In answer to that point the Regional Chairman replied on 10 February 1997, through the Secretariat, stating that the clerk dealing with the Notice of Hearing had made not one but three errors in first sending the notice of hearing to Mr Millar's old address; listing the case for one day only and failing to inform the EAT of the new hearing date. In other words, administrative inefficiency caused by inexperience; not an intention to show bias against the Appellant.Mr Millar also complained about the way in which the case had been earlier handled by the Bristol Industrial Tribunal; as to that the Regional Chairman said that those matters had been the subject of two successful appeals to the EAT. Nothing further could be done.As to the application for leave to amend the Originating Application, the Regional Chairman asked for the following particulars:
"(a) The identity of the witness and the nature of the evidence which you say came to light as a result of a question put by the Chairman. (b) The hearing date on which you say that evidence was given. (c) Whether you previously formally made an application for leave to add this claim and, if so, the date upon which that application was made and the result."
Mr Millar responded to that direction by a letter dated 22 February and he said first that a witness, Mr Prickett, the Respondent's general manager, had given evidence that Miss Taylor was the only female relief manager employed by the Respondent at the relevant time, in answer to a direct question from the Chairman, Mr Berry, on the first day of the Industrial Tribunal hearing on 8 April 1994.It is clear to us, and Mr West has assisted in this, that at the first Industrial Tribunal hearing in the Notice of Appeal to the EAT against the first Industrial Tribunal's decision and before the Industrial Tribunal at the second hearing in April 1996, Mr Millar has done his best to raise a complaint of sex discrimination but without success.A copy of the Regional Chairman's letter was sent to Mr West, who responded on 21 February 1997, opposing the application to amend the Originating Application to plead a claim of sex discrimination.The application for leave to amend was listed for an interlocutory inter partes hearing before the Regional Chairman on 16 April. The substantive hearing of the matter was and is listed for 6, 7, 9, and 12 May 1996. At the interlocutory hearing on 16 April the Chairman had before him a note from Mr Berry regarding the application for leave to amend dated 19 March. A copy of that note was provided to the parties.The Regional Chairman, Mr M.E. Woods, dismissed the application for leave to amend the Originating Application to add a claim of sex discrimination. Against that order Mr Millar promptly appealed by a Notice dated 17 April. The Chairman provided written reasons for his order on 18 April.

The Application for Leave to Amend

Mr Millar contended in his letter of 22 February that he first became aware of the possibility that Miss Taylor had received less favourable treatment on the grounds of her sex on 8 April 1994, the first day of the first Industrial Tribunal hearing in the circumstances outlined in his letter dated 22 February. He claimed that he believed he was entitled to allege sex discrimination without formal amendment to the form IT1. However it became clear to him after receiving the first Tribunal decision that the claim had not been considered. He says that he raised it again before the Employment Appeal Tribunal in November 1995 as well as before the Industrial Tribunal in April 1996.In his note dated 19 March 1997 Mr Berry states that he has no recollection of the point being raised during the 1994 hearing, although he recalls it being raised during submissions by Mr Millar on 23 April 1996. He adds that he asked Mr Millar whether he was seeking to formally allege unlawful sex discrimination but was told clearly and unequivocally that he was not.Mr Millar took issue with that recollection before Mr Woods on 16 April 1997.

The Interlocutory Ruling

In his Notice of Appeal Mr Millar states that in dismissing the application for leave to amend Mr Woods said:

"the case is too old: it is so old it is stale and I am not allowing it."

The Appellant complains that the reason why the case is so old is that the Bristol Industrial Tribunal has on previous occasions made errors of law, as the EAT has now twice found, and failed to give the Appellant a fair hearing.In his written reasons Mr Woods dealt with the Respondent's objection that it would be prejudiced because the sex discrimination complaints would raise new evidential matters. That objection was rejected. The Chairman found that the evidential basis for the discrimination complaint arose at the earlier hearings.The prejudice to the Respondent in the view of Mr Woods was that the complaint was being raised out of time. He rejected Mr Millar's complaint that the original Chairman, Mr Berry, ought to have brought about a position at the earlier hearings where the necessary procedural steps were taken to permit the Appellant's case to be heard not only on the basis of unfair dismissal but also sex discrimination. In the view of the Regional Chairman that would have required Mr Berry to enter the arena, and may have given an impression of unfairness towards the Respondent. Mr Woods referred to the apparent conflict between the versions advanced by Mr Millar and Mr Berry and concluded that he was prepared to accept that some of the matters did not come to the Appellant's knowledge until they came out in evidence during the hearing in 1994. However, no formal application to amend was made by the Appellant until 7 February 1997. It was now too late. The claim was out of time and this was not a proper case in which to extend time under section 76(5) of the Sex Discrimination Act 1976 .The application was refused.

Applications to Amend

The Regional Chairman referred to the guidance given by this Tribunal in Selkent Bus Co Ltd v Moore [1996] IRLR 661 . The background to that decision merits further analysis. In allowing an appeal by the employer against a Chairman's order allowing an amendment to the IT1 to allege, in a claim of unfair dismissal, a contention that the dismissal was for a reason connected with trade union membership, the Employment Appeal Tribunal gave guidance to Industrial Tribunals in dealing with applications to amend, including the need to consider whether a new cause of action was proposed and if so, whether the new complaint was out of time and if so whether time should be extended.At paragraph 16 of the report of the judgment of the Employment Appeal Tribunal Mummery J records the submission made on behalf of the Applicant that the amendment did not raise a new cause of action, since the original complaint was one of unfair dismissal. Reliance was placed on decisions of the EAT in Dodd v British Telecommunications Plc [1988] IRLR 16 and Quarcoopome v Sock Shop Holdings Ltd [1995] IRLR 353. That submission was rejected. At paragraph 25 of the report the Appeal Tribunal held that the amendment pleaded new facts not previously pleaded in support of a new positive case of automatic unfair dismissal, requiring fresh primary facts to be established by evidence and inferences.However, we do not find any suggestion that Quarcoopome and Dodd were incorrectly decided. Indeed, they form part of a long-established line of authority for the proposition that even where a specific cause of action is not identified in box 1 of the form IT1, if facts are pleaded in the details of complaint which support an alternative or additional cause of action, albeit insufficiently particularised, no question of time limits apply where the original form IT1 was lodged in time.An early example is Home Office v Bose [1979] ICR 481, where the Appellant complained of racial discrimination only in box 1 of form IT1. However, it was accepted by the Employment Appeal Tribunal, upholding an order by a Chairman of the Industrial Tribunal granting leave to amend the form IT1 to add a complaint of unfair dismissal, that the details of complaint in the form could amount to such a claim. The fact that the cause of action was not specified in box 1 was not a point of substance. In the absence of prejudice to the Respondent or injustice the amendment was properly allowed.A similar approach was taken in Dodd , where the Originating Application referred only to Sex Discrimination Act or Race Relations Act , without giving further particulars. It was held that this was a valid complaint. In Quarcoopome it was argued on behalf of the Respondent that an Originating Application which referred only to race discrimination covered claims of both direct and indirect discrimination. An amendment to add a claim of indirect discrimination was allowed on appeal. The Industrial Tribunal had erred in holding that the amendment was an attempt to bring a claim out of time.

Interlocutory Appeals

Mr West correctly submits that interlocutory appeals are no different from substantive appeals. We can only interfere with orders made by the Industrial Tribunal where an error of law is demonstrated - Medallion Holidays v Birch [1985] IRLR 406, approved by the Court of Appeal in Ashmore v British Coal Corporation [1990] IRLR 283 and followed in Adams & Raynor v West Sussex County Council [1990] IRLR 215, EAT.

This Appeal

Since this is a case in which the Industrial Tribunal has refused to accept jurisdiction for a claim which it held to be time-barred, we must first look to see whether the claim is in fact out of time.We return to box 10 of form IT1. The complaint is that the Respondent unilaterally effected a major change to Miss Taylor's contract of employment by requiring her to work during evenings. She stated:
"I objected to this un-negotiated change in contract and set forth a number of specific objections to working so late at night - especially important was the issue of personal safety. A series of meetings with the area manager ensued, but despite my willingness to negotiate and despite my particular problems I was told that I must fully comply with the Company's demands or be dismissed. The Company would make no concessions to allow me to comply with their wishes and treated me less favourably than other members of staff."
It seems to us that the reference to "less favourable treatment" arguably gives rise to an unparticularised complaint of unlawful discrimination. Following evidence given on 8 April 1994, so Mr Woods found, facts emerged during the Industrial Tribunal hearing which might have formed the basis for a complaint of discrimination on the grounds of sex. It seems to us that in these circumstances, following the EAT decision in Bose that a potential claim was sufficiently identified in the form IT1 to bring it within the ordinary time limit. We raised this matter with the parties and Mr Millar sought to advance that argument on behalf of the Appellant. In response Mr West submitted that the point was not taken below. We accept that. However, this is a case in which the Chairman has declined to accept jurisdiction to consider the complaint of sex discrimination on the basis that it is out of time. Fresh points which go to jurisdiction may be taken before the Employment Appeal Tribunal in the exercise of our discretion. See House v Emerson [1980] ICR 795.Mr West further submits that the claim of unlawful sex discrimination was not sufficiently raised in the form IT1. It seems to us that in all the circumstances the claim was sufficiently raised and accordingly we have reached the conclusion that the Regional Chairman fell into error, through no fault of his own because the point was not taken below, in finding that this complaint of sex discrimination was out of time. In doing so, it may be that he was diverted by the letter from Mr Berry of 19 March 1997, in which he says in paragraph 1:
"1. The applicant's Originating Application lodged on 22 September 1993 makes one complaint - that of 'unfair dismissal'. Nothing in that application raises explicitly or implicitly a complaint of unlawful sex discrimination."
With that view we respectfully disagree.It follows that having identified an error of law we shall use our powers under section 35(1) of the Industrial Tribunals Act 1996 to allow the amendment in the form submitted on behalf of the Appellant, bearing in mind Mr Woods' specific finding that the Respondent will suffer no prejudice thereby. Further, in the light of the history of this matter which we have set out in some detail, we consider that justice requires that such an amendment be allowed.

Venue

That does not quite dispose of this matter. Mr Millar argues that in view of the unfortunate history, involving now three successful appeals to the Employment Appeal Tribunal, the Appellant can no longer have any confidence that she will receive a fair hearing in the Bristol region. He asks us to direct that the case be transferred to another region.Mr West does not oppose that application but he has indicated to us that if the matter is to be moved then Birmingham would be the most convenient centre for his client and witnesses. We are confident ourselves that the Appellant would receive a fair hearing if this matter were it to remain in the Bristol region. However, we are conscious of the basic principle of natural justice, that justice must not only be done but also be seen to be done.In all the circumstances of this unfortunate affair, we think that the proper course is to transfer this case from the Bristol region to Birmingham for hearing. It follows that the substantive hearing currently listed for May in the Bristol Industrial Tribunal must be vacated. In view also of the age of the matter we should be most grateful if the Birmingham Regional Chairman was able to fix a date for the hearing of this four-day case at the earliest possible opportunity.Leave to appeal refused.