MR P G COOK v MRS D CLARKE [2003] UKEAT 0070_03_0205

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2003] UKEAT 0070_03_0205Case No Appeal No. EAT/0070/03/TM EAT/0071/03Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR P G COOKAPPELLANTMRS D CLARKERESPONDENT
Before
His Honour Judge J McMullenDate 2 May 2003
[1]APPEARANCES For the Appellant MS A PALMER (of Counsel) Instructed by: Messrs Charles Russell Solicitors 8-10 New Fetter Lane London EC4A 1RS For the Respondent Written representations on behalf of the Respondent HIS HONOUR JUDGE J McMULLEN QC This case is about Employment Tribunal procedure in allowing or disallowing an amendment to introduce an additional claim. The judgment represents the views of all three members who have read the papers in advance. We will refer to the parties as Applicant and Respondent. Introduction[2]It is an appeal by the Respondent in those proceedings against the Decision of an Employment Tribunal Chairman, sitting alone, Miss A M Lewzey, at London Central on 13 September 2002 at what is described as a directions hearing when directions and orders were made. It was registered on 19 September 2002. The Applicant sent written submissions, the Respondent did not attend.[3]The Applicant claimed unlawful deductions from her pay, the Respondent denied an obligation to pay and denied an employment relationship. The issue for the Chairman was to decide on what she described as an application for leave to amend the Originating Application. The legislation relevant to this is the Employment Tribunal Rules of Procedure 2001 and in particular Regulation 10 and Rule 15(1). The Decision[4]The Chairman allowed the amendment as sought, as she put it "to grant leave to amend to include the additional claims" of unfair dismissal and wrongful dismissal, breach of contract. The Appeal[5]The Respondent appeals against that Decision on the ground that the application should not have been allowed. There is no cross-appeal against the depiction of the application as being one to add additional claims. EAT Directions[6]Directions sending this appeal to a full hearing by three members were given in chambers by the President, listing category A. Associated with this is a second Interlocutory Order of Miss E J Potter on 11 December 2002, which is also the subject of a Notice of Appeal, but for reasons which we will come to, it is not necessary for us to deal with it. The facts[7]It is inappropriate for us, given the approach which we will take to the next stage of this case, to make any findings or decisions about the nature of the relationship between the parties, save that it is contended that the Applicant was employed by the Respondent and did not receive pay. She contends that she was dismissed unfairly and wrongfully. In paragraph 1 on page 1 of her Decision the Chairman noted twice that the Respondent had not attended the hearing; she decided that a number of other directions should be given and at the end under the heading "Penal notice" said this:
"The Tribunal has power to vary or set aside this Order on the application of the person to whom it is directed but can only do so for good cause. Any such application should be made to this Office before the date for compliance mentioned above, giving reasons for the application."
Directions[8]The Chairman does not appear to have directed herself by reference to the Regulations or to any authority, nevertheless, Miss Lewzey is an experienced Chairman who fully understands the nature of making decisions of case management. The Appellant's case[9]On behalf of the Respondent, Ms Palmer contends that the Chairman failed to take into account the approach enjoined upon an Employment Tribunal by the judgment of the EAT in Selkent Bus Company Ltd -v- Moore [1996] IRLR 661 and [1996] ICR 836 Mummery P and members. She further contends that the approach should include a reference to the time limits in both of the jurisdictions invoked here, that is section 111 of the Employment Rights Act and Article 7 of the Extension of Jurisdiction Order 1994 relating to wrongful dismissal claims. Each of these requires an application to be presented to an Employment Tribunal within three months or within a reasonable period thereafter if it is not reasonably practicable within the primary period to so present it. Further, she submits that there were no matters of fact upon which the Chairman could rely, since none was put forward by the Applicant beyond what it is contained in the passage we have cited from her Reasons. The Applicant's case[10]A Skeleton Argument has been submitted by Ms Catherine O'Donnell, of Counsel. Today, because of funding uncertainty the Applicant has notified us in writing that she wishes to rely upon the written Skeleton Argument of Ms O'Donnell and does not attend. It is her submission that time limits in the legislation for the production and presentation of Originating Applications are not specifically required to be invoked in applications for an amendment. She submits that there is no express power to allow an amendment to an Originating Application but such power derives from Rule 15(1), nor is there a requirement to meet the substantive time limits which we have referred to. She relies upon British Newspaper Printing Corporation (North) Ltd -v- Kelly [1989[ IRLR 223 CA for the proposition that there is no statutory time limit to the amendment of Originating Applications, but the issue of time limits is one of only a number of factors to be taken into account along Selkent principles. She contends that the British Newspaper case held in deciding whether to allow an amendment that the test to be applied was that laid down in Cocking -v- Sandhurst Ltd [1974] ICR 650 , that is that the Tribunal should have regard to all the circumstances of the case, in particular the relative hardships and injustices which would be suffered by the parties if the amendment were or were not allowed. She contends that the Chairman, while not specifically referring to the issue of time limits, should be taken to have had them in mind. She acknowledges that the failure to take legal advice alone is not enough to meet the statutory test of reasonable practicability. In a non-amendment case it is one factor that is to be taken into consideration in the case of an application for amendment. The relevant principles[11]In a case where an Originating Application is presented, the principles to be considered in deciding whether or not to admit late presentation are set out and defined in Walls Meat Co Ltd -v- Khan [1978] IRLR 499 CA and Palmer -v- Southend-on-Sea Borough Council [1984] IRLR 119 . The principles to be applied in allowing an amendment have been decisively set out in guidance given by the President in Selkent (above) and by the Court of Appeal in Housing Corporation -v- Bryant [1999] ICR 123 CA. Our Conclusions[12]We accept the submissions made by Ms Palmer that the Chairman failed to carry out the exercise required in Selkent, for the EAT decided that in the practice of allowing or disallowing an amendment to be made, there was to be included the following:
"(5) What are the relevant circumstances? It is impossible and undesirable to attempt to list them exhaustively, but the following are certainly relevant. (a) The nature of the amendment. Applications to amend are of many different kinds, ranging, on the one hand, from the correction of clerical and typing errors, the addition of factual details to existing allegations and the addition or substitution of other labels for facts already pleaded to, on the other hand, the making of entirely new factual allegations which change the basis of the existing claim. The tribunal have to decide whether the amendment sought is one of the minor matters or is a substantial alternation pleading a new cause of action. (b) The applicability of time limits. If a new complaint or cause of action is proposed to be added by way of amendment, it is essential for the tribunal to consider whether that complaint is out of time and, if so, whether the time limit should be extended under the applicable statutory provisions, e.g in the case of unfair dismissal, [what is now section 111 of the ERA]. (c) The timing and manner of the application ."
The Chairman complied with the first direction in her classification of the nature of the amendment; it is to add an additional two claims to the one subsisting. It thus falls within the substantial alteration category in paragraph 5(a).[13]The next question was whether the complaint is out of time; it plainly was. The Chairman does not expressly say so, but is to be credited with knowing that. However, she did not turn her attention to the reason for it being out of time beyond simply considering that the Applicant had no legal representation. As Ms O'Donnell accepts, that is not in itself a reason, nor did the Chairman consider the escape clause, had she found that it was not reasonably practicable for the Applicant to have made the claims within the primary limitation period. Thus she has failed to consider what Mr Justice Mummery considered was essential before making the Decision which she did. The Decision, on that basis, is based on an error of law.[14]Before leaving this matter, however, we ought to refer to the argument raised by Ms O'Donnell in relation to the British Newspaper case. Ms Palmer has referred us to a subsequent decision of the EAT, Mr Justice Lindsay P and members, Harvey -v- The Port of Tilbury London Ltd where there is an exhaustive examination of the impact of the British Newspaper case. At paragraph 12, there is this:
"At the centre of Miss Bather's argument for the appellant is a point she seeks to derive from British Newspaper Corporation Ltd v Kelly [1989] IRLR 223 CA paragraph 10. It is that the time limit of Schedule 3 is not applicable where a s.8 disability discrimination complaint is added by amendment to an existing complaint of some other kind, in contrast with the position when a complaint under s.8 is "presented" within the meaning of para. 3(1) of the Third Schedule. The time bar applies in the latter situation but not, argues Miss Bather, in the former."
The EAT acknowledges major difficulties in the approach to be adopted by the Court pursuant to the British Newspaper case, see paragraphs 13 to 16 and 17. However, the EAT acknowledged that it was not for it to say that the decision was wrong but "we are entitled to say that we shall not adopt its reasoning". We are emboldened in this view of British Newspaper -v- Kelly by some further considerations. Firstly, no case in which Miss Bather's construction has been adopted has been shown to us, notwithstanding that Kelly is 10 years old. Secondly, in Selkent the Employment Appeal Tribunal ….. were plainly intending to give general guidance when they turn - see paragraph 18 p 663 to summarising:
'…. Our understanding of the procedure and practice governing amendments in the industrial tribunal'
. Despite that, Kelly was not mentioned at all …." And then the EAT's judgment relating to time limits, which we have cited, appears.[15]We, too, follow the reasoning in the Harvey case. It appears that we are not alone, for the editors of Harvey's "Industrial Relations and Employment Law" come to the same conclusion, see paragraph 3.1.2.02 which sets out the law relating to what has been described in Selkent as re-labelling, and 3.1.2.03 in respect of entirely new claims. It is to be noted that authorities cited are Selkent , Housing Corporation -v Bryant and Harvey . For the reasoning given in Harvey -v- Port of Tilbury , we will not adopt the reasoning in British Newspaper -v- Kelly and so we reject the contention made on behalf of the Applicant as falling within the same contention as was advanced on behalf of the Applicant in the Harvey case.[16]It follows that the Chairman erred in failing to pay attention to that guidance and the matter should be remitted. Predictably, Ms Palmer resists its remission to Miss Lewzey. We see no difficulty in it being remitted to her, with our judgment about the correct principles to apply. We also indicate that in addition to the material which was presented to her, relating, it seems to us, exclusively to the absence of legal representation at the time of the claims, she should pay attention to all relevant material advanced by the Applicant in respect of her application. Observations on the second appeal[17]We then turn to the second appeal. This case was noted by the President to contain matters which might be important for the purposes of guidance on the way in which a Tribunal Chairman deals with matters which have already been dealt with by his or her predecessor in case management. We would be prepared to give guidance on this matter if the case had been fully argued before us. Since it is not necessary for our decision on the principal appeal, and since Counsel for the Applicant is not here to assist us with any questions we may have, we are reluctant to make any direct decision about it.[18]It appears to us that where a Chairman has conducted a hearing which both parties were invited to attend, and makes an Order, she is making a final decision which is susceptible to appeal, but not to review, or to revocation or variation by a subsequent Chairman. That is in the interests of finality of litigation. It is different from a decision made by a Chairman where he or she is acting genuinely without the involvement of one of the parties in what is still described, unmodernised, as an ex parte application. Those Orders are genuinely subject to applications to vary or to revoke, which may be made to the Chairman making the Order or to any other, because they are in the nature of a provisional view - see Reddington -v- Straker & Sons Ltd [1994] ICR 172 .[19]Those observations, however, are strictly unnecessary and are guarded by our previous observations and furthered by the fact that as we have noted, the Order which Miss Lewzey gave was expressly subject to variation or revocation and thus Miss Potter, being faithful to Miss Lewzey's Orders, could herself, it seems to us in this very provisional view, have had the power to vary, revoke or set aside.[20]We would like to thank Ms Palmer for the conscientious help that she has given to us not only in putting her arguments but in drawing our attention to the arguments of her absent opponent. The first appeal is allowed and remitted to the same Chairman if practicable. The second appeal falls on the success of the first appeal and is dismissed.