MRS R H GORSUCH v LONDON BOROUGH OF BARKING AND DAGENHAM [2002] UKEAT 1330_01_1305

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2002] UKEAT 1330_01_1305Case No Appeal No. EAT/1330/01Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MRS R H GORSUCHAPPELLANTLONDON BOROUGH OF BARKING AND DAGENHAMRESPONDENT
Before
His Honour Judge Peter Clark Mrs A Gallico Mr G H WrightDate 13 May 2002
[1]APPEARANCES For the Appellant MR J WAITHE (of Counsel) Appearing under the Employment Law Appeal Advice Scheme JUDGE PETER CLARK: By an Originating Application presented to the Stratford Employment Tribunal on 3 July 2000, the Appellant, Mrs Gorsuch, complained of unfair dismissal by the Respondent Council, by whom she was employed as a Housing Officer from March 1992 until her dismissal effective on 14 June 2000.[2]On 10 November 2000 a directions hearing took place at which it was made clear that the only issue was unfair dismissal and not sex discrimination, which had been abandoned by the Appellant. The substantive hearing of the unfair dismissal complaint was fixed for 12 days, commencing on 11 June 2001.[3]By a letter to the Tribunal dated 3 June 2001 the Appellant applied for permission to amend her Originating Application to add a complaint under the Disability Discrimination Act 1995. The matter came on for hearing before a Tribunal chaired by Mr John Scanell on 11 June. On that day the Appellant advanced her amendment application; it was opposed by the Respondent for the reasons given in the ruling promulgated on 20 August 2001 (the amendment ruling). The Tribunal refused to grant permission to the Appellant to amend her Originating Application to add a claim of disability discrimination.[4]The Tribunal then proceeded to hear the substantive unfair dismissal complaint over 11 days during June 2001. By a decision with extended reasons also promulgated on 20 August (the substantive decision) the Tribunal dismissed the Appellant's complaint of unfair dismissal.[5]Against both the amendment ruling and the substantive decision she now appeals. The Amendment Ruling[6]Mr Waithe, who appears on her behalf today under the ELAAS pro bono scheme, submits that the nature of the amendments sought, properly fell within the second of the three categories classified by the editors of Harvey on Industrial Relations and Employment Law section T paragraph 311.03 That is to say:
"an amendment which adds or substitutes a new cause of action but one which is linked to or arises out of the same facts as the original claim."
[7]The Tribunal in their amendment ruling reasons found that the nature of the amendment fell within Harvey's category 3, that is:
"an amendment which adds or substitutes a wholly new claim or cause of action which is not connected to the original claim at all."
[8]The issue on this point in the appeal is put succinctly by Mr Waithe; were the Tribunal entitled to regard it as a category 3 as opposed to category 2 amendment application? The short answer to that submission is yes. We have carefully read, as did the Employment Tribunal, both the particulars of complaint given in the Originating Application and the accompanying statement made by the Appellant and nowhere can we see any reference to an alleged causative link between disability and the acts complained of, that is dismissal and bullying, which formed the substance of the unfair dismissal claim. We have taken into account the judgment of the President in Harvey v. Port of Tilbury London Limited (1999) ICR 1030 which arises in similar circumstances to the present case and we also bear in mind the judgment of Mr Justice Mummery in Selkent Bus Co. Ltd. v. Moore (1996) ICR 836 and the guidance provided by the Court of Appeal in Housing Corporation v. Bryant (1999) ICR 123 . In short, we find the Tribunal's reasoning in the amendment ruling to be faultless.[9]Turning to the substantive decision, we have read and considered the Appellant's own skeleton argument in relation to the substantive decision. We say at once that the matters there raised are essentially question of fact not law. Our jurisdiction is limited to correcting errors of law. Mr Waithe submits that the Tribunal were wrong to find that the dismissal on grounds of capability was fair, bearing in mind what he describes as the Respondent's own rules. He has taken us specifically to a memorandum from the Chief Executive to all Chief Officers dated 14 January 1999, in which he says at paragraph 10:
"As regards to the health redeployment, please indicate those persons that are either registered disabled or have a certificate of permanent incapacity issued, which as you know is considered by the Council to be an indication that the person is disabled under the provisions of the Disability Discrimination Act."
[10]Somehow it is submitted that that is a rule laid down by the Council as to the degree of consultation which should take place before an employee is retired and therefore dismissed on grounds of ill-health capability. We do not read it in that way at all. The further submission made by Mr Waithe is that in the light of the guidance given by Mr Justice Phillips in East Lindsay District Council v. Dordney (1977) ICR 566 , the Tribunal were wrong to find that adequate consultation had taken place between the Respondent and the Appellant over the state of her health before dismissal. The particular finding is at paragraph 65 of the substantive decision reasons. The Tribunal conclude that the consultation which did take place was a model for such circumstances. That conclusion is based on very careful earlier findings of fact and we can see no grounds in law for interfering with that conclusion.[11]In short, we can see no grounds in law for permitting this appeal to go forward to a full hearing and consequently it will be dismissed at this stage.