CAREER PATH (NORTHAMPTONSHIRE) LTD v MRS P DOUGHTY [2001] UKEAT 0814_00_0111

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 0814_00_0111Case No Appeal No. EAT/0814/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
CAREER PATH (NORTHAMPTONSHIRE) LTDAPPELLANTMRS P DOUGHTYRESPONDENT
Before
His Honour Judge J R ReidDate 1 November 2001
[1]APPEARANCES For the Appellant MR B UDIJE (of Counsel) Legal Services Northamptonshire County Council PO Box 104 County Hall Northampton NN1 1AW For the Respondent MR O SEGAL (of Counsel) Thompsons Price House 37 Stoney Street The Lace Market Nottingham HIS HONOUR JUDGE J R REID QC This preliminary point is whether the Appellant, Career Path (Northamptonshire) Ltd, is entitled before this Tribunal to raise the argument that the Respondent, Mrs Doughty, was never in fact dismissed. The issue arises in a case in which the Employment Tribunal held that she had been unfairly dismissed and that she had been discriminated against by Career Path on the grounds of her disability.[2]Before the Employment Tribunal, Career Path conceded that Mrs Doughty had been dismissed. The Tribunal was not content to take that concession at face value but went on to consider – see paragraph 11 of the decision – whether the concession was right or wrong. They concluded at the end of paragraph 11 that they were:
"…satisfied that the Respondents did dismiss Ms Doughty on 31 st August 1999."
The Notice of Appeal which was put in did not raise the issue of whether or not Mrs Doughty had been dismissed explicitly.[3]The matter came before the Employment Appeal Tribunal on 15 December 2000 on the grounds of appeal in that Notice. By a judgment delivered by His Honour Judge Pugsley it was determined that the appeal should proceed on what was described at paragraph 11 of the judgment as 'that central issue'. That central issue had been described earlier in paragraph 7 in these terms:
"If we may say so with respect to the arguments put to us, there seems to us one central arguable point of which all are subsidiary matters. If an employee agrees that they will be dismissed and there are, of course, a plethora of authorities with the position of those who volunteer for redundancy, if a person agrees that they should be dismissed in terms of triggering a pension benefit they would not otherwise get, is that a ground for saying that the dismissal can be unfair, within the provisions of Section 98(4)?"
That judgment was followed by an Amended Notice of Appeal which again does not, as Mr Udije very properly concedes, explicitly raise the question of whether or not there was a dismissal.[4]The first time that it became clear that Career Path wished to raise the question of whether or not Mrs Doughty had been dismissed was in the Skeleton Argument which was provided by the Appellants for use in this hearing. When that point became apparent the Respondents took issue and said that the question of whether or not Mrs Doughty had been dismissed (whether unfairly or not) was not one which arose and was open on the appeal.[5]In our judgment that contention is correct. The point was not sought to be raised in the initial Notice of Appeal nor is it properly raised, or indeed even hinted at, in the Amended Notice of Appeal. Furthermore the order on the Ex Parte hearing specifically limited the grounds on which the appeal could proceed to the one central issue, the nature of which I have already indicated by a quotation from paragraph 7 of the judgment.[6]In those circumstances it seems to us clear that the Appellant does not have the permission of the Court to proceed with the proposed new ground and that it should not be given leave to amend further so as to raise that ground. It is far too late for it to do so. The appeal will therefore continue to deal with the only ground for which leave to continue the appeal was given, namely, the so called 'central ground'. We will now hear argument on that.[7][After hearing argument] We have reached a firm conclusion but given the lateness of the hour we think the better course is to put our reasons in writing later but having reached that conclusion we think it only right to tell you at this stage that the appeal fails and should be dismissed.