MRS D E THOMAS v (1) SOUTH CHURCH SOCIAL CLUB LTD (2) MR K BARRATT [1999] UKEAT 708_99_2907

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [1999] UKEAT 708_99_2907Case No Appeal No. EAT/708/99Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MRS D E THOMASAPPELLANT(1) SOUTH CHURCH SOCIAL CLUB LTD (2) MR K BARRATTRESPONDENT
Before
His Honour Judge D M LevyDate 29 July 1999
[1]APPEARANCES For the Appellant MR M DUGGAN (of Counsel) Instructed By: Mr G P Briars Messrs Shacklocks Solicitors 19 The Ropewalk Nottingham NG1 5DU For the Respondents NIETHER PRESENT NOR REPRESENTED JUDGE LEVY: We have today an Interlocutory Appeal from a decision of a Chairman of an Employment Tribunal sitting in Nottingham on 27 April 1999 and sent to the parties on 28 April 1999 when he refused leave to the Appellant to amend her Originating Application. On this appeal, the Respondent has chosen not to attend; the Appellant has been represented by Mr Duggan, who has very helpfully brought to our attention, rather at the last moment, a number of decisions illustrating the approach of this Tribunal to applications such as that which he is making. Very briefly, the background to this appeal is as follows. On 15 May 1998 the Appellant, amongst others, made a complaint about the behaviour of the Second Respondent, Mr Barrett. On 4 June 1998 the Appellant resigned from her employment because of the treatment to which she suggested she had been subjected. Between 15 May 1998 and the date of her resignation, she alleges that she had been threatened by Mr Barrett and ignored by the officers of the First Respondent.[2]On 8 June 1998 insinuations were made to the Appellant that she had committed theft. On 11 June 1998, the Appellant attended the premises of the First Respondent to watch a video but was told after some time at the premises that she would not be shown it. On 29 August 1998 an IT1 was presented by the Appellant in the first box of which she complained "Sexual Harassment, Unfair Dismissal, Breach of Contract" giving details of her complaint, as required in Box 11, she set out many matters. The final sub paragraph of Box 11 of her claims reads: [ the [Appellant] claims] "11.11.5 That the First Respondent discriminated against the [Appellant] pursuant to the Sex Discrimination Act 1975 (as amended) by failing to take action following the [Appellant's] complaint and in its treatment towards her thereafter."[3]On 17 September 1993 the IT3 was put in by the Respondents. By 23 September 1998 at the very latest the First Respondent made a complaint to the Police alleging theft by the Appellant and falsification of accounts. On 11 October 1998 there was a decision of the Employment Tribunal in the case of Coote which permitted a claim to be made for discrimination post employment. On 1 December 1998, having heard submissions from the parties, a Chairman of the Employment Tribunal gave directions. The fourth of the directions given reads as follows:
"The allegation as to sex harassment are not particularised in the application and therefore, sequential disclosure of written statements is ordered."
[4]On 10 February 1999 we are told that the Appellant was charged with theft. On 16 March 1999 there was an application to amend the IT1 of the defendant to add this substantial paragraph at the end of paragraph 11.11:
"11.11.6 That the First Respondent has discriminated against the [Appellant] contrary to Section 4 of the Sex Discrimination Act 1975 (as amended) in that the First Respondent has discriminated against the [Appellant] by treating her less favourably in the circumstances than he treats or would treat other persons and has done so by reason that the [Appellant] has brought proceedings against the First Respondent and/or Second Respondent under the Sex Discrimination Act 1975 (as amended) and/or alleged that the First Respondent and/or Second Respondent committed an act which would amount to a contravention of the Sex Discrimination Act 1975 (as amended). The retaliation by the First Respondent complained of relates to allegations which are still being pursued that the [Appellant] committed offences of theft and/or forgery against the First Respondent. To the extent that this additional complaint relate[s] to treatment following the termination of the [Appellants] employment the [Appellant] relays [relies] upon the Employment Appeal Tribunal's judgment in Coote …"
[5]Following a hearing before a Chairman on 27 April 1999, he dismissed the application to amend. The Extended Reasons were sent to the parties on 28 April 1999. It is from that decision that the appeal arises. The grounds of the appeal are thus phrased:
"(i) [The Tribunal] wrongly decided, in circumstances where the Appellant was already claiming sex discrimination, that the application of the Appellant to amend her Originating Application to claim victimisation was a new cause of action and it erred in deciding that there was no sufficient factual basis in the Originating Application to found a claim for victimisation."
For reasons which will shortly be apparent, we have not thought it appropriate to rule on this ground of appeal. "(ii) it failed or failed properly to exercise its discretion to disapply the limitation period thereby extend time to allow the amendment to claim victimisation. a) The only basis on which the Tribunal refused to extend time was alleged delay on the part of the [Appellant] which, in all the circumstances, was not a sufficient reason to disallow the amendment. b) The Tribunal failed to have any regard to the prejudice suffered by the Appellant if the amendment was not allowed, especially given the Chairman's comment made that any fresh claim for victimisation would be vexatious. c) The Chairman, wrongly considered whether the Second Respondent would suffer prejudice (though he did not refer to this in his decision) when in fact the victimisation claim was directed at the First Respondent."[6]Mr Duggan in his submissions, which we have been considering very carefully, has made the point forcefully that the decision of the Chairman does not in fact deal fully with the question of prejudice to the parties. It is clear from all the cases which have been cited to us in the course of the day that in the context of an application to amend, the prejudice to the parties is one matter to which regard should be had. Though we express no opinion on the merits of the application to amend which was undoubtedly made late, when a Tribunal considers whether or not it should be allowed, it should make its decision inter alia by considering the prejudice to each of the parties if the amendment is to be allowed.[7]In the circumstances of this case, we think it is appropriate to allow the appeal only to this extent, to remit the matter to the learned Chairman to further consider his decision in the light of the prejudice to the parties in the event that the application is or is not allowed.