MISS E V GORDON v ST MARY'S C/E PRIMARY SCHOOL CHAIR OF GOVERNORS [2001] UKEAT 1378_00_0502

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 1378_00_0502Case No Appeal No. EAT/1378/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MISS E V GORDONAPPELLANTST MARY'S C/E PRIMARY SCHOOL CHAIR OF GOVERNORSRESPONDENT
Before
His Honour Judge Peter Clark Dr D GrievesDate 5 February 2001
[1]APPEARANCES For the Appellant MR COURTNEY HAY Lay Representative Instructed by Northern Complainant Aid Fund Midlands Unit 70 Villa Road Handsworth Birmimgham B19 1BL JUDGE CLARK The Appellant, Miss Gordon commenced these proceedings by an Originating Application presented to the Employment Tribunal on 8 October 1999. She complained of unfair dismissal by her former employer, the Governors of St Mary's C/E Primary School in Lewisham.[2]By a letter dated 13 December 1999 her representative, Mr Kevin McFadden of Northern Complainant Aid Fund applied to the London (S) Employment Tribunal for permission to amend the form IT1 to add, among other complaints, a claim for breach of contract. That application was granted by a Chairman by letter dated 14 December.[3]On 30 May 2000 Mr McFadden wrote to the Respondent's solicitors, giving further and better particulars of the claim. As to the complaint of breach of contract he said this:
"The Applicant states that the disciplinary procedures used for the hearing and subsequent appeal were never introduced to her at any time prior to the hearing. It is claimed that she was employed under the terms of the diocesan procedures and this did not change by way of amendment of her contract. This contention is fully supported by Mr Paddy Marshall, NUT representative. Moreover, even though the wrong procedures were used that they were not properly followed resulting in the Applicant being severely disadvantaged. It is also claimed by the Applicant that the systematic bullying and harassment of her by the Headteacher was a breach of her contract."
And later "Of Box 1 'Breach of Contract': the rerpesentative writes: See of paragraph 8 above." Which we have just set out.[4]On 17 August 2000 the matter came before an Employment Tribunal chaired by Mr N Mahoney. By an order with extended reasons promulgated on 18 September 2000 that Employment Tribunal held that permission to amend given on 14 December 1999 should not have been granted. To add to the confusion the Employment Tribunal wrote to Mr McFadden on 20 July 2000 saying this:
"1. The Chairman will not permit an amendment at this stage to plead breach of contract. The application is made far too late and in the Chairman's view is not encompassed in this office. (Sic)"
[5]The Mahoney Tribunal held that the original Chairman in December 1999 could not have appreciated what was the proposed amendment to add a claim of breach of contract; that balancing the hardship to the Respondent against that caused to the Applicant by granting it the initial application would have been refused. Anyway, the claim is more akin to a claim for personal injury, not breach of contract and at best the Applicant would receive nominal damages, and as such he would recover only nominal damages. On that basis, held the Tribunal, it was a frivolous claim which should be struck out under rule 13(2)(b) of the Employment Tribunal Rules of Procedure.[6]Against that direction this appeal is brought. In support of the appeal Mr Hay points out that in the Originating Application the Appellant complains that she was summarily dismissed. Under her contract she was entitled to 3 months notice of termination. She therefore has a claim for wrongful dismissal being the damages to represent pay in lieu of notice. Further that complaint encompasses a claim that the Respondent failed properly to implement the contractual disciplinary procedures. Mr Hay further adds this interesting submission. The effect of summarily dismissing the Appellant in this case as opposed to dismissing her on the 3 months notice was that the effective date of termination preceded the change in the law effected by the Employment Relations Act 1999 which from 25 October 1999 increased the maximum compensatory award from £12,000 to £50,000. Consequently he submits that if the Appellant is found to have been unfairly dismissed it will not be open to the Tribunal to award a compensatory award in excess of £12,000.[7]However, if the Tribunal additionally find that she was wrongfully dismissed in breach of contract the measure of damage will include the excess of compensation which she would have recovered in respect of her unfair dismissal claim over and above £12,000 as part of her loss arising out of the breach of contract.[8]We see the force of those submissions and confess that we are less than convinced by the Tribunal's reasoning leading them to effectively revoke the permission to amend which was granted on 14 December 1999, particularly in circumstances where as Mr Hay points out both the application for permission to amend and the granting of that permission in December 1999 took place within the 3 months limitation period provided for in Article 7 of the Extension Jurisdiction Order 1994.[9]In these circumstances we shall allow the matter to proceed to a full hearing. It will be listed for half a day, Category B. There will be exchange of skeleton arguments between the parties not less than 14 days before the date fixed for the full appeal hearing. Copies of those skeleton arguments to be lodged with this Tribunal at the same time.