MR D GOULD v LAMBROOK HAILEYBURY SCHOOL [1999] UKEAT 383_99_2807

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [1999] UKEAT 383_99_2807Case No Appeal No. EAT/383/99Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR D GOULDAPPELLANTLAMBROOK HAILEYBURY SCHOOLRESPONDENT
Before
Mr Justice MorisonLord Gladwin of CleeDate 28 July 1999
[1]APPEARANCES For the Appellant IN PERSON For the Respondents NEITHER PRESENT NOR REPRESENTED MR JUSTICE MORISON: This is an appeal against an Interlocutory Decision of an Employment Tribunal which was held at Reading in January of 1999. By their decision, the Tribunal presided over by Mr Hardwick refused Mr Gould's application to amend his originating complaint to include a claim of victimisation, both in relation to the complaint of unfair dismissal and sex discrimination. The position is this: the Applicant, Mr Gould, complains of the circumstances in which he came to leave his employment with Lambrook Haileybury School, the Respondents to this appeal, by whom he was employed. He lodged an IT1 alleging unfair dismissal and unlawful discrimination on grounds of sex. He was complaining in particular, by way of an example, that he had been required to undertake certain unsocial hours duties, whereas female members of staff were not.[2]The purpose of his application to amend was to include within his IT1 certain specific allegations both in relation to the way he was treated whilst in employment, and in relation to the way that Lambrook Haileybury School have behaved towards him thereafter in terms of references and so forth. The Tribunal indicated that it would be helpful if he gave further particulars of his claim, which he has done by a six page document dated 21 January 1999, which starts with the assertion that what follows is non-exhaustive. But we are satisfied from what we have been told that this summarises the nature of the complaint in relation to sex discrimination and victimisation.[3]Mr Gould found the procedure at the Directions Hearing somewhat surprising in the sense that he believed that the Tribunal Chairman indicated that no decision would be made about his application for leave to amend his Originating Application because that would be dealt with in due course by the Tribunal which was going to hear his complaint. Somewhat to his surprise, when the Chairman had considered the submissions which were made to him, he ruled against the application for an amendment and Mr Gould protested. However, he is left with the decision of the Tribunal which is recorded between pages 7 and 9.[4]In this appeal, the school have exercised their right not to appear and they have put in an answer in which they say that there are no grounds on which the Employment Appeal Tribunal could decide that is was just and equitable to allow the Applicant to proceed on a claim of victimisation, largely because of the time scale involved.[5]The essence of the Tribunal's decision in relation to this matter is contained in paragraph 2 of their reasons where they say:
"The request for leave to amend the Originating Application in respect of victimisation was refused in relation to the claim of unfair dismissal because there were no factual circumstances showing that the applicant had been subjected to some detriment in special cases, for instance, Sunday working or as a pension fund trustee. The claim under the Sex Discrimination Act is refused as being considerably beyond the prescribed time limit, either the summer of 1997 when the applicant ceased teaching duties or, on the applicant's argument, the summer of 1998, the date when he considered that his contract expired. I note that around March 1998 the applicant had recourse to legal advice regarding his employment position when indeed his solicitors were acting in a draft compromise agreement at that juncture."
In truth, the Appellant presented no evidence to the Employment Tribunal at the Interlocutory Hearing so it seems to us somewhat surprising to find a statement that there were no factual circumstances showing that the Applicant had been subjected to some detriment in special cases. If the Tribunal was looking for factual circumstances which went to show his case, then Mr Gould should have been given the opportunity of giving evidence.[6]Furthermore, it seems to us that the Tribunal should have directed its mind to the fact that there was already extant in his IT1 a claim for sex discrimination, which was within time and upon which they were going to have to adjudicate. It seems to us that paragraph 2 of the Tribunal's reasons do not properly address the factors which they had to take into account at that time. The decision as to whether to grant leave to amend, assuming leave to amend was in fact technically necessary, are set out in law which will be familiar to the Employment Tribunal, and requires in essence, a balance of injustice to be struck. What would be the injustice to Mr Gould if he was not to be allowed to amend, and what would be the injustice to the School if he was allowed to amend? The exercise of discretion is based on a balancing of those two factors.[7]We will very seldom interfere with the discretion exercised by Employment Tribunal Chairmen on interlocutory matters such as this, but we have to say that we are quite satisfied that in the circumstances of this case, it would be an injustice not to permit Mr Gould to raise all the matters referred to in his further and better particulars which well fall under the heading of sex discrimination in his IT1. In other words, the School have been aware of a Sex Discrimination Act complaint right from the start from the proceedings. The further and better particulars do not effectively add anything new, save a claim for victimisation which is a form of discrimination, and it seems to us that having regard to the recent decision of the European Court of Justice in Coote, it was not surprising that there was not included within his claim at that time a reference to what had happened post employment. It would be much more convenient for the post employment allegations to be included within the present IT1 rather than requiring Mr Gould to file separate complaints and having them consolidated.[8]Accordingly, we are satisfied that there has been a misdirection in law and we allow the appeal. Exercising the powers which we have as an Employment Tribunal, we order that his complaint be amended to include in it the matters set out in the further and better particulars. In those circumstances, the Employment Tribunal will, when the hearing comes on, be able to examine with care all the allegations that Mr Gould wishes to make. They would unquestionably have been required to listen to evidence about them as part of the background in any event and it seems to us that no injustice will be done to the School if this appeal is allowed and if the amendments are made. Therefore, the order is the appeal is allowed and the order is made accordingly.