(1) MR M DAVIES (2) MR C LAWRENCE v (1) MS C WILLIAMS (2) CAERPHILLY COUNTY BOROUGH COUNCIL [1999] UKEAT 1061_99_2910

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [1999] UKEAT 1061_99_2910Case No Appeal No. EAT/1061/99Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
(1) MR M DAVIES (2) MR C LAWRENCEAPPELLANT(1) MS C WILLIAMS (2) CAERPHILLY COUNTY BOROUGH COUNCILRESPONDENT
Before
Lord Johnston Miss C Holroyd Ms B SwitzerDate 29 October 1999
[1]APPEARANCES For the Appellants MR J ALGAZY (of Counsel) Instructed by: Mr J Stanley Messrs Eversheds Solicitors 11-12 Queen Square Bristol BS1 4NT For the Respondents MR P ROSE (of Counsel) Instructed by: Mr C Smith Messrs Maclays Solicitors 10 Foster Lane London EC2V 6HR LORD JOHNSTON : This is an interlocutory appeal against a decision of a Chairman of an Employment Tribunal sitting alone at the instance of two appellants who were, as a result of that decision, joined as parties to an application made by the current respondent before us, against Caerphilly County Borough Council alleging sex discrimination in the course of her employment with them. The matter arises in this way. In December 1997 the now respondent made an application to the Employment Tribunal alleging, so far as the box in the IT1 is concerned, sex discrimination and victimisation. By way of further particulars to that allegation attached to the IT1 was a document that was headed 'Question 11' and contained in the first half of it three specific allegations against the two specific people that were subsequently joined in her application and are the appellants before us today.[2]In the second half of that document under the heading of 'Sex Discrimination' she narrates certain matters relating to disciplinary complaints against her and alleges discrimination in the way, putting it generally, she was treated by the Council in that respect.[3]It is important for the purposes of this appeal to note that the gentlemen named in the first part of the document do not feature specifically in the second part of the document so far as it stands. When Counsel presented the matter to us, he identified this document as really, to use his phrase, containing two quite separate tranches of complaint.[4]After some procedure in which further and better particulars were sought, the applicant herself wrote a letter to the Regional Office of the Tribunals dated 24th march 1999 explaining that when she had completed the original box in the IT1 she had placed in there only the County Council and had not named either of the two persons who are now the appellants before us. She was now seeking permission, effectively, to join these two persons in the application.[5]This application, itself, namely to join the two, was heard by the Chairman in question who issued a short judgment, at page 5 of the bundle, in which he narrates that the applicant had so written on 25th March and states:
"2. … She sets out succinctly her explanation for failure to join them to date and her reasoning for the application which she wishes to make. 3. I direct myself as follows. I accept that her grounds are genuine as there would be no reason for her not to join the respondents as she has named them in her originating application. Delay is merely a factor which I must take into account as Rule 17(1) of the tribunal regulations allows the tribunal to add a respondent at the application of any person not just a party, at any time …"
The Chairman then refers to a number of authorities which are related to the question of delay.[6]Before us Counsel for the appellants argued that the Chairman had misdirected himself in as much that he had not properly applied his mind to the issue of discretion or even jurisdiction which must be the primary question in determining whether or not additional parties can be added out of time, as it were, in an Originating Application.[7]The issue of time is important because the allegations made in the first tranche in respect of the document attached to the IT1 were all alleged to have taken place at dates well beyond the three months limit that would apply to the raising of this particular application. It was recognised by Counsel that this could, in the general scheme of things with regard to the application against the Council, be relevant in a question of historical context, but what he said was that the essence of the matter was that given that these allegations against the gentlemen in question were out of time it could not base an application now to join them as parties to the application since on any view of the matter if the original application as stated gave dates which were too far back in time to make them justiciable against the individuals, that was always going to be the case and could not be altered by amendment. He based that position essentially on the case of Cocking v Sandhurst Stationers Ltd [1974] ICR 651 and in particular the principles enunciated by Sir John Donaldson at pages 656 to 657. It was, he submitted, unnecessary to determine whether the issue was really one of jurisdiction or merely discretion. On either view of the matter, if a discretion was exercised against the background of not considering, which he says the case was here, the time limit involved in the original application, it was wrongly exercised and should not therefore be the base upon which joinder of particular parties could be made at the time it was attempted to be achieved.[8]Mr Rose appearing for the respondents before us, took the matter really on two bases. First of all he said that no real determination had yet been made as to whether or not the applications could be regarded as out of time as far as the original claims were concerned and that therefore it was appropriate that they should be joined at this stage whatever might be the position in due course with regard to jurisdiction. The basis for seeking so to do was that in relation to the Council they might take the statutory defence that they were not responsible for the actions of the individuals in question and accordingly it was necessary to have them in in order that that question could be protected. Secondly, and perhaps much more importantly, he referred us to a letter which was written to the Employment Tribunals by the respondent's union dated 10th March 1998 which greatly expanded upon the original basis of which the claim was made to the Employment Tribunal and effectively in the third paragraph, paraphrasing it, stated that it was intended that it should be demonstrated that there had been a continuing practice of sexual harassment in a series of one off acts which culminated in the decision to suspend the applicant. That, he submitted, was a proper basis upon which these two gentlemen could not be joined to the process and we should proceed upon that basis.[9]Since this is an interlocutory judgment, that is a sufficient summary of the position before us, although certainly more detail was considered.[10]The first issue we have to determine is - what is the scope of this appeal? We are entirely satisfied that its scope is limited to what was before the Chairman at the time that the original decision was made in relation to the joining of the parties. That is to say, we accept the submission of Counsel that given the dates on which the allegations in relation to these two gentlemen are stated to have been, those dates make any action against them personally out of time, nor would there be any reason in discretionary terms, we consider, at this stage of the proceedings, to take a different view. What, however, is more important is that the Chairman plainly did not address that issue in his decision, merely being concerned with the issue of delay which, to our mind, is secondary to the first question, namely whether or not be it a jurisdiction or a discretionary question, amendment should be allowed to bring in the two parties without further a do.[11]What we have however to consider is what is this status of the matters now stated before us in the letter of 10th March 1998 which was submitted before us by Counsel for the respondents.[12]We have come to the view that it would be quite inappropriate for us at this stage to take into account in determining this appeal the contents of that letter. We consider to do so would be pre-empting a situation which will no doubt develop before the Employment Tribunal in due course, if the respondent wishes, whereby amendment will be sought to be made to introduce the content of the letter which we consider to be an entirely separate case from that stated in the second tranche of the 'Question 11' document attached to the IT1.[13]Without in any way prejudging the issue, we cannot imagine anything other than it is competent for an application for amendment to be made. But equally, it would be quite wrong for us to pre-empt or put the current appellants in the position of having to react now to that situation where, for all we know, they might have perfectly good grounds for resisting the broadening of this particular case at this stage. Equally, if the amendment is made, and this appeal in the meantime has been allowed, we would not consider any issue of estoppel would arise if a fresh application was made at that stage to join the two gentlemen as parties because there would now be timeous allegations being made against them on the assumption that the case thus stated had been the potential case, and that is how we view it, i.e.,in the document of 10th March is now in the case.[14]We therefore consider that to do justice between the parties at this stage of the process, the Chairman having misdirected himself in our view on the narrow question that was before him at the time, that this appeal should be allowed and the present order quashed. We do so, however, without prejudice to any further developments that may take place in the case and in particular would not want to be thought that we are precluding any form of attempt by the respondent to introduce properly the material which was put forward on her behalf in the letter of 10th March 1998. We also of course reserve the right to the current appellants to take any steps they feel necessary to try and prevent such amendment taking place if that is their position. We also would not want to give the view that a further attempt at a later stage, presuming the pleadings met the right situation, to introduce the two gentlemen in question as parties to protect particularly the respondent against the Local Authority seeking to exercise the statutory offence. While of course that application would have to be looked at on its merits, we would not want it to be thought that this current decision of ours is precluding that happening. This decision of ours proceeds solely on the very limited question that was properly brought before us when the appeal was taken.[15]On that basis, the appeal will be allowed.