MR E E CAVENDISH v GREATER MANCHESTER BUSES (SOUTH LTD) T/A STAGECOACH MANCHESTER [2003] UKEAT 0400_03_3009

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2003] UKEAT 0400_03_3009Case No Appeal No. EAT/0400/03Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR E E CAVENDISHAPPELLANTGREATER MANCHESTER BUSES (SOUTH LTD) T/A STAGECOACH MANCHESTERRESPONDENT
Before
His Honour Judge Peter Clark Mr P M Smith Miss S M WilsonDate 30 September 2003
[1]APPEARANCES For the Appellant MR TOM LINDEN (Of Counsel) Instructed by: Messrs Clarke Kiernan Solicitors 2-4 Bradford Street Tonbridge Kent TN9 1DU For the Respondent MR BEN McCLUGGAGE (Of Counsel) Instructed by: Messrs Norwich Farelly Solicitors National House 36 St Ann Street Manchester M60 8HF JUDGE PETER CLARK This case is presently proceeding before the Manchester Employment Tribunal. We have before us an interlocutory appeal by the Applicant, Mr Cavendish against an Interlocutory Order of a Chairman, Mr J R Beaumont sitting alone made on 12 March 2003 which in part refused permission to the Applicant to amend his Originating Application.[2]Reasons for the orders made on that day are contained in a document dated 26 March. The starting point by way of background is the Applicant's Originating Application presented to the Tribunal and dated 15 August 2001. In Box 1 of that application he alleges unfair dismissal against his former employer the Respondent, Greater Manchester Buses (South) Limited, trading as Stagecoach Manchester by whom he was employed as a bus driver between July 1998 and 3 August 2001.[3]The particulars of complaint allege that in late 1998 and early 1999 the Applicant was concerned about lapses in safety. He said:
"I submitted a number of memos to my employer Stagecoach Buses in Manchester. Management refused to discuss the matter or change existing practices leading to the lapses. This meant that buses with lethal faults were allowed on the road. After this I was victimised when a driving instructor stating he was acting on behalf of management suspended me as a mentor driver, (looking after new drivers). I have to date not had a satisfactory explanation and has been denied all relevant paperwork. I appealed many times for the relevant paperwork and as a result was further victimised by both management and union. I was threatened many times by management and union that the matter was dead and buried and that there would be trouble if I persisted with my requests."
He concludes:
"The end result was a systematic campaign of threats and abuse resulting in long periods off duty due to stress. I have been dismissed as a result."
[4]The nature of the amendments sought by the Applicant, who by this stage was acting in person, are set out in letters to the Employment Tribunal dated 10 December 2002 and 12 March 2003. The Applicant sought to raise four specific causes of action. They come in pairs. First that he had suffered action short of dismissal and been dismissed by reason of making protected disclosures contrary to Section 103A and Section 43B of the Employment Rights Act 1996 respectively and secondly that he had suffered action short of dismissal and been dismissed for health and safety reasons contrary to Sections 44 and 100 of the Act.[5]The principles on which permission to amend should be granted or refused still survive from the judgment of Mummery P in Selkent Bus Co Ltd v Moore [1996] ICR 836 . Those principles in particular are to be found at pages 843-844 of the Report. Mummery P said this:
"(4) Whenever the discretion to grant an amendment is invoked, the tribunal should take into account all the circumstances and should balance the injustice and hardship of allowing the amendment against the injustice and hardship of refusing it. (5) What are the relevant circumstances? It is impossible and undesirable to attempt to list them exhaustively, but the following are certainly relevant."
And then he lists three matters:
" (a) The nature of the amendment (b) The applicability of time limits and (c) The time and manner of the application"
[6]Those principles have been considered and applied in later cases particularly in the Court of Appeal and in our view it comes to this. The nature of the amendment may fall into one of three categories; first the simple correction of clerical or typing errors. That is not this case. Secondly, the addition or substitution of new legal labels based on facts already pleaded in the Originating Application and thirdly where a new cause of action is sought to be raised based on different factual allegations from those originally pleaded in the Originating Application.[7]As to the question of limitation that becomes relevant in a Category 3 case and it is essential for the Tribunal to consider whether or not the proposed new cause of action raises a complaint which is out time and if so whether the time limit should be extended under the applicable statutory provisions.[8]On the other hand where it is a Category 2 case the balancing exercise to be carried out by the Tribunal Chairman will involve taking into account the hardship or prejudice to each party and in considering that question delay in making the application to amend is one of the factors to be taken into account.[9]We turn now to the Chairman's reasoning in rejecting the application to amend. At paragraph 5 the Chairman said:
"5. The Tribunal took into account that the applicant had received initial advice from his trade union (which was shown as his representative on his Originating Application) and that a firm of Solicitors had been on record as his representative from 8 March 2002 to 27 September 2002. On his own admission, he had also received advice from Counsel, and, at an earlier Directions Hearing held on 15 March 2002, his Counsel (not Mr Linden) had expressly informed the Tribunal that the applicant did not wish to amend his claim to add an additional claim pursuant to Section 100 of the Employment Rights Act 1996. 6. Further, and in any event, it was not clear from the applicant's written and oral submissions that his proposed claims would actually fall within the relevant statutory provisions on their facts. 7. In all the circumstances, and having regard to the extreme prejudice to the respondent if the applicant were allowed to bring new claims before the Tribunal more than 20 months after the date of termination of his employment, the Tribunal was satisfied that it was not in the interests of justice to allow the proposed amendments, and the applicant's request to amend his Originating Application to add new claims was therefore refused."
[10]Advancing this appeal Mr Linden takes six points. The principal argument, which we have found compelling, is that the Chairman does not appear to have applied the principles to be found in Selkent in order to analyse into which category of application for permission to amend these various new claims fitted. He appears to have proceeded on the basis that limitation was a relevant consideration. It would be relevant if and in so far as the amendment applications looked at individually fell within what we have described as Category 3. A further difficulty is that he seems to have made no distinction between the different causes of action now sought to be raised in this claim. Thirdly, there is no consideration on the face of the Chairman's reasons to the prejudice to the Applicant as opposed to the Respondent if the application to amend is refused.[11]Mr Linden raises further points on the extent of the delay and also the Chairman's reliance on an apparent concession made by Counsel then acting for the Applicant at a Directions Hearing held before a different Chairman Mr Russell on 15 March 2002, that being a concession that the Applicant did not seek to rely on Section 100 of the 1996 Act that is to contend that his dismissal was for a health and safety reason.[12]Mr McCluggage realistically accepts that on the face of it the wording of the particulars of complaint in the Originating Application does give rise to a contention that the Applicant was dismissed for an inadmissible reason under Section 103A of the Act, that is by reason of his having made a protected disclosure. He contends however, that the other three proposed causes of action do not arise from the facts pleaded in the Originating Application and he invites us to dismiss the appeal in relation to those three matters even if we were minded to allow the appeal on the Section 103A claim, although no concession to that effect is made by Mr McCluggage.[13]It is also common ground between Counsel that if and insofar as we allow this appeal then the correct course is to remit the matter for rehearing on the question of amendment before a different Chairman.[14]We have carefully considered the submission made by Mr McCluggage but we are not persuaded that it would be proper for us on appeal to distinguish between the four proposed heads of claim. We accept Mr Linden's submission that the principles in Selkent to which we have referred do not appear to have been applied in the respects submitted by Mr Linden by the Chairman on this occasion. We do not accept Mr McCluggage's submission that in relation to three of the four proposed claims the result reached by the Chairman was plainly and unarguably right. In these circumstances we think the correct course is to allow the appeal and to remit the whole question of amendment to a fresh hearing before a different Chairman.