C T L Components Plc v Rookwood [1998] UKEAT 13_98_0707

EAT
C T L Components Plc v Rookwood
[1998] UKEAT 13_98_0707 · 1998-07-07

JUDGE HULL QC:

This is an appeal to us by the employers, CTL Components Plc with premises in Wimbledon. They employed the Respondent to the appeal, Mr Raymond Rookwood, a gentleman of about 35 years of age, who lives at Lewisham, as a Silk Screen Printer. His employment began on 1 September 1994 and it ended on 24 March 1997 when he was dismissed.It was alleged that, having been warned about the matter once before, he swore at the foreman and he was therefore dismissed. It was said that it was aggravated by being in the presence of other people; we are not concerned with those details. He, himself, suggested that one of the managers, a Mr Babb, had behaved badly. He set out his case shortly in his IT1 (his application to the Industrial Tribunal) in which he said that he claimed in respect of Unfair Dismissal. That application was made on 1 April 1997.After giving the usual particulars giving details of his complaint he said:
"On Monday 24th March 1997 I was dismissed from my job for Gross Misconduct after having allegedly sworn at a member of Management in front of a customer which I categorically deny. I feel that my case was not dealt with fairly, reason being that no fact finding was done. I was not allowed any witnesses and was not informed prior so I could have time to present my case.
There has been a number of Horrible incidents in the past with Orick Babbs (the manager) which I have reported on most occasion which no one took in to account (mental and physical abuse) I was always told "Ignore - Don't let him wind you up."The apparent relevance of that is, first of all, that if indeed he did swear at the Manager, although he denies it, if there was any untoward behaviour it should be viewed in the light of the way he himself had been treated. It seems most unlikely that any Tribunal could say that that was irrelevant, if, indeed, there was some behaviour of which complaint could legitimately be made on the part of Mr Rookwood. He had been perhaps provoked; perhaps unfairly treated; unpleasantly treated. So that would appear to be the relevance of that.The employers put in their IT3 their answer to what was being alleged. They said that he had been warned that his attitude towards his colleagues was unacceptable. They said that Mr Rookwood repeated his misbehaviour and a decision was taken in due course to discharge him. They attach various documents corroborating their case. That was how the case appeared to be but apparently, very shortly before the day of the hearing, which was fixed for 11 July 1997, Mr Rookwood had the advantage of going to Mr Sykes, a representative, who is accustomed to Industrial Tribunal work. He told Mr Sykes that in fact the abuse to which he had been subjected was racist abuse and it appears that he had been called "a darkie" and there had been insulting remarks made. One notes, without any further comment, that apparently the person who was abusing him in this unpleasant way, racist way, if one likes, was the same Mr Babb. That was what was confided to Mr Sykes who, of course, had to act on what he was told.We can see at page 48 of our bundle that in fact the hearing did not take place but what happened was that there was to be a hearing on 26 August at which the Industrial Tribunal said that they would conduct an Interlocutory hearing. It was evidently because of the application to amend which Mr Sykes thought it right to make with regard to this racist abuse, as it was said to be. Notice was given of the hearing on 26 August to consider various matters; clarify the issues in the case; give any necessary orders for further particulars; disclosure; arrange agreement as to documents and bundles; direct witness statements; give any other directions which may be necessary for the fair and expeditious disposal of the case. So telling the parties they should attend, the hearing was to take place on Tuesday 26 August 1997.That did not, unfortunately, suit Mr Sykes, in the professional sense, because he was going on holiday. He was going on holiday from 1 August to 1 October 1997 and, as he has remarked, that is a time when Courts commonly take their holidays, although of course Industrial Tribunals and other Courts and Tribunals very frequently do not. It would not normally be a reason for saying a hearing should not take place because the advocate was going to be out of the country on holiday for two months and that was in fact the decision. The Chairman decided to proceed without Mr Sykes being present. That was not perhaps such a serious matter as might be, because in fact there were submissions by Mr Sykes. He submitted three pages of submissions starting at page 50 and in those he recorded:
"(b) The Applicant wishes to add the cause of action of race discrimination, at the Tribunal's discretion, on just and equitable grounds including that he suffered racial harassment in the form of racial remarks and racially harassing actions throughout the period of his employment, that occurred in the course of employment, and which he was not aware until he was advised by his legal representative amounted to a valid cause of action in employment law ... This if accepted will involve separate oral evidence and could occupy at least an additional day."
He then gave particulars in paragraph 3 of the Skeleton Argument and in paragraph 4 he said:
"4 The Applicant asks the Tribunal to allow the addition of the cause of action if it is out of time on the grounds that he was unaware that his complaint amounted to a valid cause of action in employment law until his legal representative told him of this. The representative mentioned this as a ground for postponement in July of the hearing as soon as he became the representative for the Applicant. The Applicant asks that the cause of action, under the Race Relations Act 1976, be added pursuant to the Tribunal's discretion under that Act."
So that came before the Chairman, Mr Peters, at the Interlocutory Hearing on 26 August. Mr Sykes did not attend that being absent on holiday but Mr Peters had the advantage of this fairly short Skeleton Argument.At page 45 we can see the Order that Mr Peters thought it right to make. He had heard the Respondents, and he had certainly had the submission and he said this:
"1. Upon the application by the Applicant to add a further cause of action, namely a complaint of unlawful direct race discrimination, comprising racial harassment throughout his employment. And having heard from the Applicant that his reason for not presenting the complaint in the Originating Application was that he did not know of the right to make such a complaint, but that he sought advice from the Citizens Advice Bureau before presenting his Originating Application to the Tribunal, and that he obtained legal advice some time in June 1997 and was advised as to making a complaint of racial discrimination. And having heard from Mr Page on behalf of the Respondent objecting to the application, in particular on the basis that no complaints of such discrimination had been made prior to the application to amend the Originating Application, which application was made by letter dated 10th July 1997. And having considered the nature of the complaint of racial discrimination, and having noted that the application is for a substantial alteration to the Originating Application to add in an entirely new complaint which is not mentioned directly or indirectly in the Originating Application and having noted that the application to amend is out of time, and taking into account all circumstances including balancing the injustice and hardship of allowing the amendment against the injustice and hardship of refusing it, I refuse the application to amend the Originating Application to include a complaint of unlawful race discrimination."
Now that, as is pointed out to us, was, on its face, a judicial decision. The Chairman, sitting alone, had heard one party and he had seen the submissions of the other party and studied those and he had, on the face of it, considered the matters of discretion which are set out, the basis on which he was to exercise his discretion. He was very prudent, no doubt, to set these matters out. Anybody seeing that can say "well here the Chairman was exercising his discretion" and one can say at once that those grounds are not criticised as being improper grounds, or grounds which failed to include important matters. They are proper grounds and the Chairman had made his decision, "right or wrong". It may be idle to ask the question right or wrong in a matter of discretion; it is almost always a balancing exercise and the Chairman had made a balancing exercise which must be said to be right, in the sense that it is, on the face of it, a permissible exercise of discretion made on proper grounds.Then the Chairman went on to consider other matters and he said this:
"4. The case is listed for hearing before a full Tribunal for one day, namely Friday 17th October 1997 commencing at 10 am. No postponement of the hearing date will be granted unless there are exceptional unforeseen circumstances."
an Order which is commonly made now because Tribunals have found that if they are to carry out their duties in an efficient way under very great pressure of work, they are obliged to say "we will not grant adjournments unless there are exceptional circumstances. Something unforeseen and something important": and to indicate in advance how they propose to exercise their discretion if there is an application for an adjournment.That was the Order which was sent to the parties on 2 September 1997 and so leave to amend having been refused Mr Rookwood went off and obtained from Mr Sykes (who had been on holiday) a considerably longer submission which is called an 'Appeal Against Decisions of Tribunal' dated 12 September 1997, which reads:

"The Applicant says by his Representative appeals:"

and then he appealed against the decision of the Industrial Tribunal and dealt with various matters. With regard to the race relations claim - and it was almost entirely devoted to the race relations claim - Mr Sykes said that this new cause of action arose out of the same facts as those in the IT1 and he said again that this was not included in the IT1 because the Applicant was not aware that he could do this. He said in his paragraph 13:
"..... It is the Applicant's evidence that he was embarrassed about the race discrimination, of which he was clearly aware, and that this was a reason for his not stating it more directly in the IT1."
It seems a little inconsistent with the suggestion that he did not know that he could mention it in the IT1 but it may simply mean that he would not give particulars because he felt embarrassed. Then there was an application relating to witnesses and a request for a further Interlocutory hearing to assist the Tribunal with clarification of the Applicant's argument and evidence and to make additional submissions on the above issues.That appeal, as it was called, was in fact made to the Industrial Tribunal. There was no question of appealing to this Employment Appeal Tribunal. It came before the Chairman, Mr Peters, as recorded at page 61 of our bundle, and he said in the letter which was written by the Regional Secretary:
"2. ..... He treats your letter as an application for review of the refusal to amend the Originating Application to add in a complaint of race discrimination. Mr Peters is of the view that such an order is an interlocutory order which is not susceptible to review but in any event the Chairman considers that there are no grounds for a review of the refusal.
5. In order to ensure there is no misunderstanding the hearing on 17 October is a full merits hearing of the Applicant's unfair dismissal complaint."That was the decision. The Chairman had decided to treat the matter as an application for review. He took the view that it was in fact not susceptible to a review. Clearly he could not hear an appeal against his own Order. What was he to do? We think that he was quite right to say that he had no power to review his decision. It seems to us as obvious as anything can be, that a decision to refuse leave to amend a pleading, or an application to the Tribunal, is an Interlocutory Order made on an Interlocutory application. The Industrial Tribunals (Constitution and Rules of Procedure) Regulations 1993 Rule 11(1) state:(1) Subject to the provisions of this rule, a tribunal shall have power, on the application of a party or of its own motion, to review any decision on the grounds that–and then the various grounds are set out, in particular (e):

"the interests of justice require such a review."

If one looks at what that means, the word "decision" which is used there is defined in the Regulations (which introduced the Rules as a Schedule) and they provide:
"decision" in relation to a tribunal includes a declaration (and various matters are set out, including an order to strike out any Originating Application or Notice of Appearance) "but does not include any other Interlocutory Order or any other decision on an interlocutory matter"
. That, it seems to us, is perfectly plain and therefore the Chairman was right in saying " I do not have power to review it". He then went on to see whether there was any ground to review it. But truly, at that point he was functus officio. He had no power to do anything about it and therefore he did not grant the application to amend the IT1. That ruling reached Mr Sykes a little later. It was on 23 September when that letter was written and, as I say, it said that the hearing on 17 October was to be a full merits hearing.Mr Sykes who tells us that he was very busy and, as he puts it, was on a steep learning curve at this time, set about drafting an application to the Tribunal asking it, in spite of what had already happened, to amend the IT1 and asking for a further review and postponement; that is at page 62 of our bundle. It is a long document and Mr Sykes says, and one has no reason to doubt this, it took him a long time to compose it. It refers to authorities; it argues the case at considerable length and it is addressed to the Tribunal. It is called an Application for Review and Postponement.Mr Sykes completed his labours, apparently, on 16 October, the day before the hearing. He had not notified the employers that this application was to be made. He had sent it to the Tribunal, so it may have reached the Tribunal the day before, if it was faxed. It certainly had not reached the other party. The employers attended by their Mr Page and were no doubt surprised and alarmed when they found, at the door of the Court, that there was this massive carefully researched work of art - if I may call it that, without wishing to be sarcastic at all - it was an artistic and lawyer-like composition calling upon the Industrial Tribunal to alter its previous decision. The Industrial Tribunal instead of adhering to the Order which had been made by Mr Peters that the hearing was to be a substantive hearing, proceeded to embark upon the hearing of this application. As I said, the employers were there but they were not represented, they had, so far as we know, no lawyer-like skills; no special knowledge of the subject; and they were there simply by direction of Mr Page, expecting the hearing to proceed. It did not proceed. The Tribunal first of all referred to Selkent Bus Co Ltd v Moore [1996] ICR 836 and then they said as follows:
"9. The Tribunal proceeds on the basis that since an amendment can be ordered at any time, it must follow that an application to amend can be renewed."
That, we say, and persist in saying, despite all that has been said to us by Mr Sykes, is truly a monumental non sequitur. No doubt you can have a bite of the cherry at any time but it does not follow that you can have two bites of the cherry at any time. The Tribunal goes on:
"If an ex parte order for an amendment can be varied, the same must be true of an order made after hearing both parties."
That is not merely a non sequitur, it is an obvious fallacy and how anybody who had have read Selkent could make that statement we find some difficulty in seeing. The Tribunal went on:
"That must be subject to such a course being just in the circumstances, and foremost amongst the relevant circumstances must be the fact that the matter has been decided by a Tribunal. That said, we take the view that we have the power to look at the question of amendment afresh.
10. We take very seriously the point made by Mr Page about the injustice to the Respondent which results both from the fact that there have already been decisions on the question of amendment and in respect of the delay caused by granting the amendment and postponing the hearing. Against those considerations we have to set the circumstance that the evidence will inevitably be concerned with the harassment alleged by the Applicant and it is clear that a decision will have to be made by a Tribunal about it. Therefore, no practical benefit is obtained by preventing the claim of racial discrimination being added to the case. Furthermore, we take the very clear view that the harassment claim was there in the Originating Application, and this is not a case of adding an entirely new actual allegation. It is instead a case of adding a new legal aspect to the existing factual allegations. The Respondent is clearly in a position to meet the allegations on their merits, and it is better that this issue of discrimination should be decided on its merits than suppressed by procedural considerations ....."they go on to give some details of the nature of the complaint. They say that convenience favours their view and indeed that has been pressed upon us by Mr Sykes. Mr Sykes has said "this was the convenient and rapid course calculated to lead to a ready resolution of the dispute". So we look to see what has happened. A one-day hearing which was to be effective on 17 October in the absence of something new and unforeseen, is stood out to another date. The one-day hearing becomes a three-day hearing. The date was to have been fixed for March 1998, as it turned out. But it could not be because there was an appeal by the employers to this Tribunal, which we are engaged in hearing today. That came before this Tribunal on 2 March; Judge Clark and the other Members of our Tribunal gave leave to proceed and it was necessary, therefore, further to adjourn this hearing of three days - no doubt at some inconvenience to the Tribunal and again hardship and expense to the parties and at last the matter comes before us here.There is an answer to the Notice of Appeal by Mr Sykes, no less than twenty-one pages long. It is a short Notice of Appeal but that does not, I am afraid, apply to the answer. The Notice of Appeal was amended professionally to put it into shape and then we have received in addition to the Appellant's Skeleton Argument - a concise document if may use that expression - we have received no less than twenty-four further pages from Mr Sykes, so that it is not untrue to say that our substantial and thick bundle is mainly composed, more than half of it I think, by written material composed by Mr Sykes raising all manner of points, some of them of considerable interest but not perhaps all directly in point.What is said to us by Mr Horan for the Appellants is this. First of all he says that there is no power to review an Interlocutory decision. That, we think, is right. It seems to us quite self-evident from Rule 11 and Rule 13 there is no power to review an Interlocutory decision. Why not? The answer is that Interlocutory decisions are made with a view to expediting the hearing of the case and its just disposal. If there is a change in circumstances, Interlocutory orders and rulings, unlike final decisions, determinative decisions, can always be added to and altered, for example, if an order for discovery is made and it is then discovered that the order is unnecessarily wide and will lead to a great deal of quite unnecessary effort because there are no relevant or directly relevant documents, the Tribunal can be asked by the party, who perhaps has not been present, to vary its order on the ground that there are now circumstances shown to the Tribunal, or Court, which show that the order should not have been made in the form that it was. If new circumstances turn up of any sort; a new witness is discovered - an order may have been made for all witnesses statements to be served fourteen days before the hearing; another witness turns up ten days before the hearing and it is decided to vary that order by saying "well, at any rate in the case of this witness, a statement may be served within eight days, say, of the hearing". - That is in the nature of Interlocutory orders, that for good cause, they can be varied in the sense of being added to or subtracted from. There is no need to have a power of review. But that is subject of course to a very important proviso, that a Tribunal, Court, or any other judicial body, cannot be asked to vary an order which it has made, except for good new grounds. If it were not so, it would be an absolute paradise for the vexatious litigant, for the weak Tribunal, whatever it might be, orders could be varied not once, but twice, three times, as many times as the Judge or Chairman or whoever it might be could be persuaded to change his mind. That, arguing the matter a priori, cannot be correct. But of course this is not a matter which arises a priori.We have to look at the authorities and what Mr Horan has said to us is that here the Chairman, Mr Peters, had heard the Applicant, had read the submission and had reached a decision. There was nothing that was said to the Tribunal chaired by Mr Lamb on 17 October which could not have been put in the submission which was made to the Industrial Tribunal earlier. Mr Horan relies on the decision in Selkent Bus Co Ltd v Moore [1996] ICR 836 of our own Tribunal chaired by our then President, Mummery J, who thought it right to give certain indications of the powers of Tribunals in exercising their jurisdiction with regard to amendments. What our Tribunal through the President said at page 842 was this:
"(1) The discretion of a tribunal to regulate its procedure includes a discretion to grant leave for the amendment of the originating application and/or notice of appearance: see rule 13 of Schedule 1 to the Regulations of 1993 and Cocking v Sandhurst (Stationers) Ltd. [1974] I.C.R.650, 656G-657D. That discretion is usually exercised on application to a chairman alone prior to the substantive hearing by the tribunal.
(2) There is no express obligation in the Industrial Tribunals (Constitution and Rules of Procedure) Regulations 1993 requiring a tribunal (or the chairman of a tribunal) to seek or consider written or oral representations from each side before deciding whether to grant or refuse an application for leave to amend. It is, however, common ground that the discretion to grant leave is a judicial discretion to be exercised in a judicial manner, i.e., in a manner which satisfies the requirements of relevance, reason, justice and fairness inherent in all judicial discretions.(3) Consistently with those principles, a chairman or a tribunal may exercise the discretion on an application for leave to amend in a number of ways. (a) It may be a proper exercise of discretion to refuse an application for leave to amend without seeking or considering representations from the other side. For example, it may be obvious on the face of the application and/or in the circumstances in which it is made that it is hopeless and should be refused. If the tribunal forms that view that is the end of the matter, subject to any appeal."If Mr Sykes is right, what our President should have said there is "that is the end of the matter unless the party chooses to renew his application to the Chairman, making a better case of it and arguing it more fully, and persuades the Chairman or the Tribunal that they ought to reverse their original decision". Our President did say nothing of the sort, he said:
"it is the end of the matter subject to any appeal"
. He goes on to say:
"On an appeal from such a refusal, the appellant would have a heavy burden to discharge. He would have to convince the appeal tribunal that the industrial tribunal had erred in legal principle in the exercise of the discretion, or had failed to take into account relevant considerations or had taken irrelevant factors into account, .... (b) If, however, the amendment sought is arguable and is one of substance which the tribunal considers could reasonably be opposed by the other side, the tribunal may then ask the other party whether they consent to the amendment or whether they oppose it and, if they oppose it, to state the grounds of opposition. In those cases the tribunal would make a decision on the question of amendment after hearing both sides. The party disappointed with the result might then appeal to this appeal tribunal on one or more of the limited grounds mentioned in (3)(a) above."
Again, our President does not say "or of course he could return to the Tribunal again on notice and seek to re-open the question which they had decided". Why not? The answer is that some matters are too obvious to need re-statement. If it is the end of a matter on an ex parte matter a fortiori, it must be the end of the matter after a hearing inter partes, where both parties are being heard. The President went on:
"(c) In other cases an industrial tribunal may reasonably take the view that the proposed amendment is not sufficiently substantial or controversial to justify seeking representations from the other side and may order the amendment ex parte without doing so. If that course is adopted and the other side then objects, the industrial tribunal should consider those objections and decide whether to affirm, rescind or vary the order which has been made. The disappointed party may then appeal to this appeal tribunal on one or more of the limited grounds mentioned in (3)(b) above.
(4) Whenever the discretion to grant an amendment is invoked, the tribunal should take into account all the circumstances and should balance the injustice and hardship of allowing the amendment against the injustice and hardship of refusing it.(5) What are the relevant circumstances? It is impossible and undesirable to attempt to list them exhaustively, but the following are certainly relevant."

The President first dealt with the nature of the amendment and said:

"(a) ..... The tribunal have to decide whether the amendment sought is one of the minor matters or is a substantial alteration pleading a new cause of action."
He went on:
"(b) The applicability of time limits . If a new complaint or cause of action is proposed to be added by way of amendment, it is essential for the tribunal to consider whether that complaint is out of time and, if so, whether the time limit should be extended under the applicable statutory provisions, e.g., in the case of unfair dismissal, section 67 of the Employment Protection (Consolidation) Act 1978."
He refers to the timing and manner of the application:
"(c) An application should not be refused solely because there has been a delay in making it. There are no time limits laid down in the Regulations of 1993 for the making of amendments. The amendments may be made at any time—before, at, even after the hearing of the case."
All that, is in our view, authoritative and binding upon us and we most certainly propose to follow every word of what is said by our own Tribunal's President there.One asks, how could anybody who had read what is said by this Tribunal, paraphrase it in the way which the Industrial Tribunal here did on 17 October? "Since an amendment can be ordered at any time, it must follow that an application to amend can be renewed." Our President never said anything of the sort. "If an ex parte order for amendment can be varied, the same must be true of an order made after hearing both parties." Our President did not say so. It seems contrary to all principle that when the parties have been heard the matter should be re-opened, unless of course there is good cause in the sense which I have endeavoured to indicate; something new and unforeseen, something important, that well found an application to re-open a matter in an Interlocutory case. Mr Horan leaves it like this - he says it is simply not judicial to re-visit an inter partes order where there are no new facts and to alter the order and that, he said, is the primary point.We would say before parting with what fell from our President, that although of course delay is no bar by itself, delay resulting in prejudice very definitely is a bar. We could hardly imagine more aggravated and wholly unjust circumstances than to spring this on a litigant in person on the morning when he is expecting his case to be tried - without any notice. It may have taken Mr Sykes a long time to compose his artistic submission; there was nothing to prevent him picking up the phone and notifying both the Tribunal and the Respondents that this application was to be made. That might have had all sorts of results. It would possibly have resulted in a considerable saving of expense.Mr Sykes has made, as I say, a large number of submissions. We have read an enormously long Skeleton Argument by him in which, as I say, he raises a number of points but his central point is that what happens here was entirely justified by Rule 13 which provides:
"Subject to the provisions of these rules, a tribunal may regulate its own procedure."
He says as a secondary submission that what the Industrial Tribunal was doing on 17 October was in fact to conduct a review, a second review, because Mr Peters' first review was wholly incompetent. He should not have conducted it.We are inclined to think that, though for different reasons, indeed Mr Peters should not have treated it as a review and had no power to hear a review of his own Interlocutory order. But Mr Sykes went on to say that the Selkent case showed that an application could be brought at any time and it followed that it could be renewed at any time, even if that does sound, as he said, like a non sequitur.He then goes on to say that the Industrial Tribunal was wrong in applying the principle that this application was out of time and he refers to cases about that. It is of course perfectly true that even if a claim is, on the face of it, statute barred, it can be added in proper circumstances and he says this claim is in fact made if you look at the application (IT1) to the Tribunal and what is said there.We are all of the opinion that there is nothing to be found in the IT1 of a complaint of race discrimination. There is no indication there or in the documents which were attached to the IT3, the Notice of Appearance, of any complaint of racial discrimination. Many people say that they have been bullied by their superiors, the chargehand, the foreman, the manager, unfortunately sometimes that is true. To say that that shows that they are being racially discriminated against is something quite different and there is not a breath of a suggestion about this being a claim of racial discrimination which lacks only the words "race discrimination" to make all absolutely plain.We consider that the proposition that a Tribunal can without any new material revisit its own Interlocutory orders and change them is one which is wholly unsupported by any authority or by Section 13. Judicial powers are to be exercised judicially. If a Court is given power to review its own orders (and certainly Industrial Tribunals, our own Tribunal, County Courts, the High Court, have certain powers to review their own judgments and orders) those are expressly conferred. With regard to Interlocutory orders I hope I have said all that I need.There is, in our view, no power whatever for the Industrial Tribunal to do what they did in this case. To do it in the circumstances, as Mr Horan has pointed out, not having considered all the material facts, on the basis of an application made (so far as the litigant in person on the other side was concerned) that very morning, departs, in our view, from any concept of a rational and permissible decision. That is not the ground of our decision, the ground is the primary submission which is made to us, that this Industrial Tribunal was not acting judicially in revisiting its own decision and for that reason, therefore, we allow this appeal and the matter will have to be remitted to an Industrial Tribunal. We think in view of what has passed, it must be allotted to an Industrial Tribunal with a Chairman who has not dealt with the matter so far. That is our order. Those are the reasons of us all.