MS M NELSON v CARILLION SERVICES LTD [2002] UKEAT 0837_01_0105

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2002] UKEAT 0837_01_0105Case No Appeal No. EAT/0837/01Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MS M NELSONAPPELLANTCARILLION SERVICES LTDRESPONDENT
Before
His Honour Judge Peter ClarkDate 1 May 2002
[1]APPEARANCES For the Appellant THE APPELLANT NEITHER PRESENT NOR REPRESENTED JUDGE PETER CLARK This is an interlocutory appeal by Ms Nelson, the Appellant in the substantive appeal, against the Registrar's order dated 11 April 2002, refusing permission to amend the Notice of Appeal to add a further ground. The parties have indicated that they are content to rely on written representations. I have taken into account those submissions, lodged on 26 April and the Respondent's list of authorities. Background[2]By an Originating Application presented to the Employment Tribunal on 10 September 1998 the Appellant brought a complaint under the Equal Pay Act 1970 against her employer, the Respondent Carillion Services Ltd. Another Respondent, John Rainer Tarmac, was subsequently dismissed from the proceedings by consent. The claim was resisted and came on for hearing before an Employment Tribunal sitting at London Central under the chairmanship of Mr M F Haynes on 26-27 March 2001.[3]At that hearing the Appellant was represented by Mr P Draycott, a solicitor then employed by the Fulham Legal Advice Centre (FLAC); the Respondent was represented by Mr R Shepheard of the EEF.[4]By a decision with Extended Reasons promulgated on 21 May 2001 the complaint was dismissed. It appears from the Employment Tribunal's reasons that they considered not only the Appellant's claim brought under the Eq PA but also an alternative complaint of indirect sex discrimination.[5]During the course of their reasons the Employment Tribunal referred to the European Court of Justice's decision in the Royal Copenhagen Case (1996) ICR 51 . At paragraph 9 they say:
"The Tribunal also referred itself to the decision in … the Royal Copenhagen Case."
[6]By a Notice of Appeal dated 29 June 2001, settled by Mr Draycott, the Appellant challenged the Employment Tribunal's findings both as to indirect discrimination and Equal Pay. In particular, Paragraph 6(b)(ii) and (iii) of the grounds of appeal contended that in the respects there mentioned the Employment Tribunal had misapplied the principles established in the Royal Copenhagen case.[7]The appeal was permitted to proceed to a full hearing without first going through the Ex Parte Preliminary Hearing procedure and a date for that hearing, 24 May 2002, was notified to the parties on 8 February 2002.[8]On 4 March 2002 solicitors now acting for the Appellant, Messrs Whittles, applied by letter to the Registrar for permission to amend the Notice of Appeal to add a further ground. Those solicitors, whom Mr Draycott joined after leaving FLAC on 30 March 2001, took over the conduct of the Appellant's case on 7 February 2002 when the Appellant joined the GMB union for whom that firm of solicitors acts. Mr Draycott had previously settled the original Notice of Appeal on a pro bono basis.[9]The proposed additional ground of appeal reads as follows:
"6c) the Tribunal erred in law in failing to apply the principle established in the cases of Hereford and Worcester County Council v Neale [1986] IRLR 168 CA and Eltek (UK) Ltd v Thomson [200] ICR 689 EAT, in that it failed to make the parties aware of the existence of the authority of Specialarbejderforbundet I Danmark v Dansk Industri (The Royal Copenhagen Case) [1996] ICR 51 or provide them with an opportunity to comment upon the same, prior to reaching their decision to dismiss the Appellant's complaint;"
[10]In addition a grammatical alteration was made to paragraph 6(b) of the Notice of Appeal.[11]Asked for their comments on the proposed amendment the Respondent's representatives replied on 21 March opposing the application. They took issue with the suggestion that the Royal Copenhagen case was not raised with the parties prior to the Employment Tribunal reaching their oral decision. In these circumstances they contended that affidavits and chairman's comments as to what happened below would be necessary to resolve that factual dispute, thus putting the fixed date for the substantive appeal hearing at risk.[12]Having considered those written representations the Registrar refused the Appellant's application. Hence this interlocutory appeal. This appeal[13]In support of the appeal Mr Draycott submits:(1) Paragraph 7 of the Employment Appeal Tribunal Preliminary Hearing and Directions Guidance Notes states that, in the absence of any prejudice to the Respondent, it is unlikely that there will be any ground for valid objection to permission to amend the Notice of Appeal given at a Preliminary Hearing. As I have observed, there was no Preliminary Hearing in this case, but that direction may be adapted and applied to the present case.(2) he was prompted to make this application in the light of the Employment Appeal Tribunal decision in Albion Hotel (Freshwater) Ltd v Maia E Silva [2000] IRLR 200, in which Judge Serota expressed the view: "In our opinion, where an Employment Tribunal considers that an authority is relevant, significant and material to its decision but has not been referred to by the parties, it should refer that authority to the parties and invite their submissions before concluding its decision. This is more than mere good practice. Failure to do so may amount to a breach of natural justice and of the right to a fair hearing."(3) his explanation for the need for amendment to add this further ground of appeal is first, that there was a change in representation; secondly, the point arose from the recently reported case of Albion Hotel. Conclusion[14]I accept the Respondent's submission that Judge Serota was not establishing any new principle in Albion Hotel and that the change of representation is immaterial. Mr Draycott has effectively had conduct of the Appellant's case at all relevant stages in the proceedings.[15]Nevertheless, I return to the Practice Direction given that in my view the fresh ground of appeal raises a separate, arguable point of law. Ought the Appellant to be deprived of the opportunity to argue it at the substantive appeal hearing?[16]In my judgment the answer to that question depends upon whether any prejudice to the Respondent has been shown. The only prejudice would lie in the hearing date of 24 May being vacated. This is already an old case; the Respondent won below; it should not have to suffer further delay in the disposal of the appeal.[17]However, that event may be avoided by my setting a firm time-table today. I shall direct that within 14 days, that is by 4.30 pm on Wednesday 15 May 2002 both parties shall exchange and lodge with the Employment Appeal Tribunal affidavit evidence from a person who was present at the Employment Tribunal, dealing with the issue as to whether the Royal Copenhagen case was referred to the parties before the Employment Tribunal announced their oral decision.[18]I shall further direct that a copy of this judgment and the amended Notice of Appeal be sent forthwith to the Chairman for his comments. The point is clear; it is not necessary for the Chairman to see the parties' affidavits before providing his comments. I should be grateful if this matter could be marked for his urgent attention.[19]If the factual dispute as to precisely what happened below is maintained the deponents shall attend the full appeal hearing on 24 May for cross-examination if so required. Facey v Midas Retail Security Ltd [2000] IRLR 812.[20]By way of further protection to the Respondent the costs in this appeal and of the amendment shall be reserved to the division which hears the substantive appeal.[21]On this basis I shall allow the interlocutory appeal and grant permission to amend in terms of the draft dated 12 March 2002 (Bundle pages 41-43).[22]The hearing date of 24 May 2002 will not be vacated. Any consequential interlocutory applications may be made in writing, marked for my attention.