Herndandez v Petmoor Developments Ltd [1998] UKEAT 1250_98_2810

EAT
Herndandez v Petmoor Developments Ltd
[1998] UKEAT 1250_98_2810 · 1998-10-28
MR JUSTICE MORISON (PRESIDENT) : The purpose of this hearing is to determine an Interlocutory Appeal which has been brought before us. The hearing before the Industrial Tribunal was scheduled to take place on 3 November.The decision in question was a decision of a Chairman sitting alone, following a hearing on 9 September 1998. The decision was sent to the parties on 29 September 1998 and we are now considering the appeal.Essentially, the question at issue that arises today is whether the Industrial Tribunal have, lawfully and properly, exercised its discretion to refuse the Applicant's application for leave to amend his Originating Application, which he presented to the Industrial Tribunal in March 1998.The background to this may be shortly stated. The Applicant is of Spanish nationality. After serious personal troubles he sought and obtained a position working as a night porter for the Respondent company, by whom he was employed. He was working alongside other porters and they were working on the night shift as well. There were obviously other day shift workers. He worked principally with two other porters, an Englishman whose name was Mr Keenan and a Morrocan whose name was Mr Talemsani.In December, around Christmas-time, the Applicant said that he noticed that Mr Keenan, the Englishman, on one occasion was behaving improperly and was drunk, and on the other occasion on Christmas Eve was both drunk and did not serve his whole shift period. He, the Applicant, says that he did not want to create difficulty for Mr Keenan and therefore did not tell his employers about it then and there.However, on 14 January 1998, without any justification whatever, as he says, he was physically attacked by Mr Talemsani. He was injured, he says, as a result of that attack and had no alternative but to report it, which he did, and having had two days off work to recover, he was asked to attend an investigation.What happened was that the employers then heard the allegation repeated in front of Mr Talemsani. Mr Talemsani defended himself on the basis, as we understand it, that the Applicant had been responsible, in some way, for the incident and the decision that was taken by the employer was that they should be both dismissed. Not surprisingly, Mr Hernandez feels strongly about the way he was treated. He says that he was doing no more than his duty in drawing this incident to his employer's attention and that it was unfair that he should lose his job as a result of it. He points out in documents presented to us that he had given conspicuous service as a porter to his employers, when he had intervened to assist an elderly person who was being attacked and it came as a shock to him. He exercised his right of appeal, but that was without success. He did not have the requisite two-year qualifying period of service to enable him to bring a complaint of unfair dismissal and what he did was to take advice from the Citizens Advice Bureau and after that to present his IT1.His IT1 is a full document and sets out extensively precisely how his complaint of breach of contract is presented and in that IT1 he makes the points, to which I have referred, and he says that his company had a legal duty to protect employees from attack. The Manager instead looked at this case without being impartial or objective about it and that they took sides with the Moroccan porter.There was no complaint of unlawful discrimination on grounds of race, but it is plain that in the context of the disciplinary proceedings the Applicant, Mr Hernandez, was drawing a distinction between the way he had been treated and the way that Mr Keenan was treated, Mr Keenan having, in the Applicant's view, been guilty of very serious misconduct, that is both by being drunk on two occasions whilst on duty and absenting himself from duty on Christmas Eve. And he had written to his employers making that point before he was finally dismissed.The Applicant wrote to the Industrial Tribunal on 16 June 1998, which was at least two weeks out of time, that is beyond the three month period of time, raising the question as to whether it was possible to (it is put here) "change his claim from one for breach of contract to one for discrimination", but we think what he means is that it was to add to his existing proceedings a claim for unlawful discrimination. That letter should have been dealt with and placed before an Industrial Tribunal Chairman, who should have ordered that a hearing be held on it. It was not responded to and no comment was made about it. He wrote again to the Tribunal on 7 September 1998. The employers objected to his application for leave to amend and there was then a hearing which was held.The Tribunal found that the amendment sought raised an entirely new head of claim and that numerous facts were alleged, not referred to by the Applicant in his original application. In effect, the Tribunal Chairman concluded:
"It is, in effect, an entirely fresh application and I applied the principles which would have been applied if a fresh application had been made."
And reference was made to Selkent Bus Co Ltd v Moore [1996] ICR 836 . He noted:
"The only reason before me to justify an extension of time was contained in the letter of 16 June 1998 already referred to where the Applicant said he was not familiar with the law and he only realised the possibility of a claim during the preparation of his case. I have to consider whether it is just and equitable in the interest of both parties (and not only the Applicant) to exercise my discretion and I do not consider that it would be just and equitable to extend the time based on those grounds. ..."
If the decision had stopped there, we would have had no criticism to make of it. The Tribunal went on:
"The specific allegations made by the Applicant go back to late 1997, and are extremely detailed."
Again, as a statement, that cannot be faulted. The Tribunal then said:
"There must be a real risk of the Respondent being unable to obtain all relevant evidence of incidents which took place some eight or nine months ago when notice of the allegations has only just been made."
It seems to us that the phrase "when notice of the allegations has only just been made" was unfair to the Applicant, because as the Industrial itself had noted he had written on 16 June 1998 asking the Tribunal whether he would be permitted to add such a claim.We approach this matter, therefore, on the basis that the learned Chairman was considering this case, having regard to the letter of 16 June 1998 and the hearing taking place in September 1998, pursuant to it.The Appellant says that, it was only when he re-wrote his diary entry to remind himself of Mr Keenan's position in December, and when he came to draft his affidavit in this case dealing with the amendment, that he realised that he could bring a claim for race discrimination. The reason why that was so, was because he was ignorant of the law, so he says, and it was only at that time that the idea that he had been discriminated against on racial grounds, crystallised in his mind. He says that the Tribunal's decision was therefore to be described as perverse. He drew our attention to the need for an Industrial Tribunal, when dealing with these cases to have regard to all the circumstances, and that the Applicant must give an explanation and reason for not making the claim in the first place. He says that this is a case where he did give a reason, that is the one to which I have referred and he therefore says that there no were no good grounds for refusing him leave to amend. He says that the application must be considered, having regard to relevance, reason, justice and fairness.We have given this matter anxious consideration for two reasons. First, this is a decision of an Industrial Tribunal Chairman sitting alone. We have already commented on the undesirability of Chairmen taking decisions such as this on their own. Where issues of justice and fairness are concerned, it seems to us that the authority of the Industrial Tribunal derives from the fact that it is not a decision just of a legally qualified Chairman, but is a decision of a Chairman assisted by the wisdom and advice of two lay members, who can contribute to a debate as to whether justice and equity demand of the exercise of a discretion in a case such as this. We have little doubt that Mr Hernandez would have had more confidence in the decision of this Tribunal had it been a decision of the full panel.The second reason why we have looked with particular care is because of the passage to which I have already referred in the decision where the Chairman says "when notice of the allegations has only just been made". As I have indicated, we regard that comment as unfair. But, having given this matter careful consideration, I think we can say that we have not been persuaded that the wide discretion, which the learned Chairman had, has been exercised unlawfully or improperly.It is to be noted that reference was made to the guidance given in the Selkent Bus case. The Chairman plainly considered that case, because he drew a distinction between this case and others by saying that this was effectively a new claim which was being made.Having heard the explanations put forward by Mr Hernandez, in particular having regard to the fact that he appreciated that there was a difference in treatment between his case and the English porter, and had taken advice from the Citizens Advice Bureau, and had filed a long and extensive IT1, we are of the view that the Industrial Tribunal was entitled to say that justice and equity did not demand that there should be a late amendment, or rather, an amendment to make a complaint which was out of time.It is true that, as of the date when the Tribunal was considering the matter, but those incidents had occurred eight or nine months before, and to that extent we consider that the Tribunal Chairman was entitled to place reliance on the difficulties that there would be perhaps, in determining the issues of fact which would arise, although in the end, what the Industrial Tribunal simply had to do was to balance the injustice to the parties, if leave was given on the one hand or leave was refused on the other.Because the appellate jurisdiction of this Court is limited to dealing with errors of law; because we are not persuaded that there has been an error of law in this case which is demonstrable, we are bound to say that this appeal cannot succeed and therefore, it will be dismissed.That said, it may be that the employers in due course will wish to consider whether perhaps Mr Hernandez, who is still out of work, might not be offered a suitable position if one were to become available. The appeal will be dismissed.