MR PAUL SMITH v MICE TECHNICAL GRAPHICS LTD [2001] UKEAT 1172_00_0802
[1]APPEARANCES For the Appellant MS N CUNNINGHAM (Free Representation Unit) 4th Floor Peer House 8-14 Verulam Street London WC1X 8LZ MISS RECORDER SLADE QC : This is the preliminary hearing of an appeal brought against the decision of an Employment Tribunal refusing leave to amend an Originating Application to add a claim of unfair constructive dismissal.[2]The claim which was before the Employment Tribunal was for unpaid wages and in support of that claim Mr Smith, who had no representation before the Tribunal, had himself outlined the reasons for applying to the Employment Tribunal. He put his complaint in a fairly lengthy document. Included in that document were assertions that he had not agreed to the deductions from salary which had been made, and that when he discovered those deductions would be made he told his employers that he could no longer work for the company and would have to leave under the circumstances. The Tribunal had before it a claim for unpaid wages and an application made on the day of the hearing to include a claim for unfair constructive dismissal.[3]The Tribunal addressed itself in the following way. It considered whether the facts, as pleaded in the IT1, were sufficient to support a claim for constructive dismissal. It concluded that they did not. It also considered that the amendment sought was substantial, pleading a new cause of action. It also considered that significant extra costs and disruption to the employer's business would be incurred if the matter was adjourned. On that basis the Tribunal refused the application to amend.[4]On behalf of the Appellant, Miss Cunningham has drawn our attention to the procedures and practice governing amendments in employment tribunals set out in Selkent Bus Co Ltd v Moore [1996] ICR 836 and, in particular, at page 843 starting with F. In our view there is an arguable case to be made for saying that the basis upon which the Tribunal concluded that the amendment should be refused was flawed. In particular, we consider that there is some merit in the attack made on the conclusion of the Tribunal that the facts pleaded in the IT1 were insufficient to support a claim for constructive dismissal and that therefore the amendments sought are substantial.[5]It appears to us that it is arguable that the facts set out in the original IT1 could found a claim of constructive dismissal. Whilst the amendments sought to introduce a new and substantial cause of action, the factual basis for that cause of action arguably overlapped considerably with the factual basis of the complaint which was before the Employment Tribunal.[6]We also consider that there may be some merit in the attack that is made on the approach of the Tribunal to the balance of hardship question. In those circumstances we consider that there is an arguable point of law raised in this appeal. We, of course, express no view and give no encouragement as to what the eventual outcome may be. Suffice it to say that the matter will proceed from this stage to a full appeal.[7]We order that there be exchange of skeleton arguments, not less than 14 days before the date fixed for the hearing. Listing Category B. Length of time for the appeal two hours.