MR A O ADEBOWALE v MHL SUPPORT PLC [2002] UKEAT 1051_02_0912

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2002] UKEAT 1051_02_0912Case No Appeal No. EAT/1051/02/TC EAT/1052/02Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR A O ADEBOWALEAPPELLANTMHL SUPPORT PLCRESPONDENT
Before
Mr Justice BurtonDate 9 December 2002
[1]APPEARANCES For the Appellant The Appellant in person THE HONOURABLE MR JUSTICE BURTON (PRESIDENT) This is an appeal, or at any rate what purport to be two appeals, we are not quite sure why, by Mr Adebowale in a claim he has brought against MHL Support PLC for compensation for unfair dismissal, damages for breach of contract and sums due as an alleged debt under a contract of employment, against a decision of the Chairman of the Employment Tribunal, sitting at Shrewsbury.[2]The decision is said to be contained in two letters of 17 September and 24 September. The slight peculiarity here is that in a letter of 15 October, the Regional Secretary wrote a letter to say that in the view of the Chairman, there had been no decision.[3]It appears to us that there was a decision, but our anxiety, by virtue of giving this judgment which will be transcribed, is to render it impossible of doubt both as to the limited ambit in respect of which we conclude that there was a decision, and the limited ambit in respect of which we are now dismissing the appeal against that decision.[4]At a hearing for directions on 13 August 2002, a Chairman of the Employment Tribunal in Shrewsbury, made certain directions with a view to a trial of the Appellant's claims for compensation in respect of various employment matters which we have mentioned, and also a claim for unlawful discrimination in breach of the Race Relations Act 1976 .[5]By a letter to the Tribunal, dated 13 September 2002, the Appellant sought to amend his Originating Application as follows: "Please be advised that I respectfully seek to amend my Originating Application (ET1) to include a claim for Interest at 8% or such other rate as the Tribunal may find reasonable on all outstanding monies due to me - effective from their respective due dates. This request is without prejudice to the other substantive claims contained in the Originating Application." and the ground on which this amendment was sought is that it was right that the Respondent should know that the claim by the Appellant was that he was owed the outstanding monies from the outset, and thus that he was claiming interest on them from the outset, and that the nature of the amendment, which he alleged was not substantial or controversial, was no more than the addition of factual details to existing allegations.[6]He must have appreciated, because he referred to Selkent Bus Company -v- Moore, [1996] ICR 836 and he himself is experienced in employment law and practice, that this was intended to surmount any problems as a result of the limitation periods, because, of course, a claim ordinarily has to be brought within three months, and he was seeking an amendment of a claim which had been brought within three months, but as to which the amendment itself would consequently be out of time.[7]The response in the letter of 17 September, which is the first of the two letters of which the Appellant complains as having been a decision contrary to his interest, from the Regional Secretary of Tribunals was as follows:
"Thank you for your letter dated 13 September 2002, the contents of which are noted. Leaving aside arguments about amendment, the Chairman asks the applicant "what power does the Tribunal have to award interest?"
There is interest on discrimination awards and interest after the decision or award in all cases. That interest is automatic and does not need to be requested."[8]The response to that question posed by the Employment Tribunal, somewhat unusually, to an applicant, was in his letter of 19 September 2002, in which the Appellant said:
"I would be grateful if the Tribunal issues a formal decision on the following issues:- 1. Whether the Tribunal grants or rejects my application for an amendment, and why. 2. Whether the Tribunal has the power to award interest as part and parcel of the Applicant's "contract claim" as expressly adumbrated under Article 1(2) and Article 3 respectively of the Employment Tribunals Extension of Jurisdiction Order 1994? The Applicant further respectfully submits that it is settled law that a Contract claim can accommodate a claim for interest as an ancillary relief. Further, in accordance with Article 3(a) of the 1994 Order there are similar statutory provisions (i.e. S 69 of the County Court Act 1969 (as amended) and S.35A of the Supreme Court Act 1984) that expressly provides for a claim of interest in County Courts and High Court respectively. Accordingly, it appears that there is nothing in the legal firmament to prevent an Employment Tribunal from awarding interest as part and parcel of a "contract claim" provided the maximum limit of £25,000 is adhered to: see Article 10. I am sorry that it appears that I may have the misfortune to differ from the Chairman. However, I would be grateful for the Chairman's understanding of my position."
[9]In the letter dated 20 September in response, the Regional Secretary wrote:
"As was pointed out in the Tribunal's letter of 17 September, there is no need to include in an originating application a claim for interest. The circumstances in which the Employment Tribunal can award interest are set out in our letter of 17 September."
And there was then a further explanatory letter from the Appellant, dated 23 September 2002, in which he argued his case further, and the further letter of 24 September 2002 from the Regional Secretary said as follows:
"Your letter will be treated as a written submission in support of the Applicant's application to amend. The Chairman has directed me to say that no final decision will be made on the request for amendment until the Hearing itself. It is not just or necessary to decide this matter on the basis of correspondence alone, or at this early stage. It goes to quantum rather than liability."
[10]The Appellant has appealed to this Tribunal on the basis, largely, that he fears that the response contained in those letters will amount to some kind of legal bar, which will prevent him from arguing an entitlement to interest when the matter comes to full hearing. But he has accepted in the course of argument that, although, in our judgment, there is, contrary to the apparent view of the Regional Secretary in her letter of 5 October 2002, a decision by the Chairman, enunciated in a combination of those letters, the decision is only a decision not to make an Order on the amendment at this stage, but to adjourn it until the full hearing of the case between the parties, whenever that occurs, either as to liability, or, if there be a separate hearing, then as to compensation; and it is that Order alone, namely one adjourning the application for an amendment, to which, in those circumstances, the Appellant needs to, or in fact does, now appeal.[11]We deal briefly with the substantive matter which lies behind the Appellant's concern. He wants to argue the following: he has a claim for debt, he tells us, under the contract of employment between himself and the Respondent, quite apart from his claims for damages and for compensation, and, he submits, that he could have brought that claim for debt in the County Court or, had it been large enough, in the High Court. Had he done so, there would have been provision in the statutory sections to which he has referred, himself, in his letters which we have cited, for the County Court or the High Court to award interest, not simply after the date of judgment, but incorporated in the judgment, in respect of the period prior to such judgment, back to the date when the debt originally fell due.[12]He submits that the consequence of Articles 3-5 of the Employment Tribunals Extension of Jurisdiction in England and Wales Order 1994, is to vest in the Employment Tribunal the right to award interest by reference to those statutes. That is clearly a difficult argument for him to mount, but it does not appear to be one which should be ruled out automatically at this stage, and he, indeed, accepts that any such argument would need to be mounted on the basis of a full argument, both by him, and, of course, in response by the Respondent. He was anxious to ensure that nothing in the expression of opinion by the Regional Secretary on behalf of the Chairman, in the letters to which we have referred, could be seen as preventing him from making any such argument in due course. We are entirely satisfied that he is not, and should not be, so prevented. However, it is clearly inappropriate, in our judgment, for the matter to be taken as an isolated point on appeal now and, indeed, to be fair to be him, he does not seek that it should be so, but he simply wanted to ensure that his position was left open before the Employment Tribunal. In those circumstances, given that the only matter that we are now considering is an appeal against the Order of the Chairman contained in the letters and in particular the letter of 24 September, we are entirely satisfied the Order was right.[13]We are far from sure that there needs to be an amendment at all, given that, effectively this is a matter of quantum, and if interest is to be claimed as a matter of compensation or damages, it would plainly be a matter of quantum if, and insofar as, it could be shown to be somehow recoverable. The fact that it is being attached to a debt which itself is part of the claims that are being made by the Appellant, would not, in our judgment, prevent it being said to be, in general terms, a matter of quantum, and, indeed, it is much better dealt with as part of the overall questions of quantum, either at the hearing itself or, if the hearings are split as between liability and quantum at the hearing as to quantum, although of course, it would be a short issue of law.[14]In those circumstances, we conclude that it is right that the decision that the Chairman made to adjourn the matter was correct, and not challengeable in law:(1) if amendment is necessary at all, it can be dealt with properly at the hearing, without any prejudice to the Appellant so far as running of time against him is concerned; that was not stated but would be implicit;(2) if an amendment is not necessary, it would, in any event, be properly dealt with at the same time as all other matters - probably all other matters of quantum, rather than liability, but we would, at the end of the day, leave that to the good sense of the Chairman at the hearing.[15]In those circumstances, and to that extent, this appeal is dismissed.