ASSOCIATED NEWSPAPERS LIMITED v MR CRAWFORD MCAFEE [2003] UKEAT 0568_03_1808

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2003] UKEAT 0568_03_1808Case No Appeal No. EAT/0568/03Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
ASSOCIATED NEWSPAPERS LIMITEDAPPELLANTMR CRAWFORD MCAFEERESPONDENT
Before
His Honour Judge J McMullenDate 18 August 2003
[1]APPEARANCES For the Appellant MR M SUTTON (of Counsel) Instructed by: Messrs Farrer & Co Solicitors 66 Lincoln Inn Field London WC2A 3LH For the Respondent MR P MICHELL (of Counsel) Instructed by: British Association of Journalists 88 Fleet Street London EC4Y 1PJ HIS HONOUR JUDGE J McMULLEN QC This case is about Employment Tribunal procedure in the context of an application for an amendment. The judgment represents the views of all three members who pre-read the relevant papers. We will refer to the parties as Applicant and Respondent.[2]It is an appeal by the Respondent in those proceedings against the decision of an Employment Tribunal sitting at London (Central), Chairman Mr M S Rabin, registered with Extended Reasons on 16 June 2003. The Applicant was represented there by a solicitor of the BAJ who today instructs Mr Paul Michell; the Respondent was represented there and here by Mr Mark Sutton, both of Counsel.[3]The Applicant claimed unfair dismissal. The Respondent contended the Applicant was fairly dismissed for "some other substantial reason". We will say a little more about the pleadings in due course. The Issue[4]The essential issue facing the Employment Tribunal was not the substantive case of unfair dismissal but an application by the Respondent for amendment of the Notice of Appearance. The Tribunal refused it. In those circumstances the Respondent indicated it could not go on with the case in its present form and would appeal to the EAT, which it has done. Directions sending this appeal to an expedited full hearing were given in by Judge Levy QC last month. The Legislation[5]The relevant provisions of the legislation are the Employment Tribunals (Constitution & Rules of Procedure) Regulations 2001 , in particular Regulation 10 which is the overriding objective to see that justice is done; and Rule 15 (1) which is the power to control its own proceedings.[6]The highly-experienced Employment Tribunal did not refer in terms to either of those measures but there could be no doubt, given the submissions of the legal representatives to it, that it had those powers fully in mind. The Facts[7]We will say little of the facts since there has been no substantive hearing, but it appears that the Applicant was employed by the Respondent at a salary of £47,000 a year from 1 October 1996 until his dismissal on 22 October 2002. He was the sub-editor of the Financial Mail on Sunday.[8]He complained that on that day:
"I was informed that my contract of employment was to be terminated with immediate effect. I was told by the acting managing editor, John Wellington, that "some reorganisation is taking place. As you know reorganisations have their casualties and, in this case, the casualty is you."
I was presented with a compromise agreement for my signature, the terms of which I could not accept. My union representative approached the company about an increase in the amount to be paid to me and his reply was, "Not a penny more"." Although there are challenges to what follows in the Originating Application, that passage remains unchallenged in the original and proposed to be amended Notice of Appearance.[9]The Applicant had an exemplary disciplinary record and could see no reason why he had been dismissed, particularly as three weeks before his dismissal he had had a salary increase. Thus, capability formed part of the Applicant's case.[10]The Notice of Appearance, as filed by the solicitors acting on behalf of the Respondent, Messrs Farrer & Co, on 24 January 2003, indicated a number of aspects of the Applicant's work which could broadly be described as reflecting his performance and his capability. See for example his ability to cope with technology, his difficulties with his work and so on.[11]It was contended that the Applicant was not dismissed for redundancy, as the Applicant had contended, but was dismissed for some other substantial reason. It is denied that the reason for his dismissal was in order to bring younger people in.[12]During the preparation of this case it was envisaged that there might be joinder of a parallel case in the name of Kimble . The Tribunal, of its own initiative, indicated it might be convenient to hear them together. This was resisted by the Respondent and the cases were not heard together, but were set up to be heard consecutively by the same Tribunal. That is an important distinction since the Tribunal accepted that its original reflection, that there may be common points, was confounded for the reasons explained by Farrer & Co's letter of 11 March 2003.[13]This experienced firm of employment solicitors decided it was necessary to instruct experienced Counsel. Thus it was that Mr Sutton, shortly before the hearing, was instructed and immediately made it clear that an amendment should be sought to the Notice of Appearance.[14]On 9 May 2003 a letter was written to the union representing the Applicant, indicating the Respondent's intention to seek leave to make amendments to add capability as a formal reason for the dismissal, in addition to those put forward.[15]The response of the solicitor on behalf of the Applicant was to consider opposing the application. Thus it was that on the opening of the case on Tuesday 13 May Mr Sutton on applied formally for leave to make the amendments foreshadowed in the letter of 9 May. That was refused. The Tribunal gave as its reasons for the refusal:(1) Connection to the case of Kimble ;(2) The balance of the interests of the parties.[16]The Tribunal considered the Kimble case would have an impact on the Applicant's case that the application had been made at a late stage and that it was not in the interests of justice that the case should be allowed to go ahead as amended. In the light of that Mr Sutton indicated he could not go forward and the case was adjourned. It is important to note that no parallel application was made by the solicitor for the Applicant indicating that he would be unable to go ahead if the Notice of Appearance were amended. As it happens, the Kimble case never did come before the Tribunal since it was settled by the parties without further reference. The Respondent's Case[17]The Respondent submitted that the Employment Tribunal had erred in law in that it had considered irrelevant factors, such as the impact of the Kimble case, and had taken into account the defence of capability which had been raised in Kimble but not in the instant case. Further, no submissions were made on behalf of the Applicant as to his detriment, for example that he was caught by surprise in that new factual issues had been raised. Alternatively, an adjournment could be sought and, alternatively still, an adjournment with costs to be provided. The basis for the exercise of discretion, therefore, was not present.[18]It was further contended that the Respondent would be locked out of establishing capability because the Tribunal, unusually, was prepared to take account of the facts within the territory of the capability argument at the same time as considering the unfair dismissal claim. The Applicant's Case[19]On behalf of the Applicant it is contended that the Respondent had a chance to amend its Notice of Appearance, but that chance had expired by 9 May, before the hearing had opened. The Tribunal had before it sufficient reasons for the exercise of its discretion and had plainly paid attention to the relevant authorities, to which we will come in due course. Prejudice would be suffered by the Applicant, as noted by the Tribunal, in having his case adjourned. The Legal Principles[20]The legal principles are set out in Selkent Bus Co Ltd v Moore [1996] IRLR 836 EAT: (3) (b) "If, however, the amendment sought is arguable and is one of substance which the Tribunal considers could reasonably be opposed by the other side, the Tribunal may then ask the other party whether they consent to the amendment or whether they oppose it and, if they oppose it, to state the grounds of opposition. In those cases the Tribunal would make a decision on the question of amendment after hearing both sides. The party disappointed with the result might then appeal to this appeal tribunal on one or more of the limited grounds mentioned in (3)(a) above. … (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: (a) The nature of the amendment . Applications to amend are of many different kinds, ranging, on one hand, from the correction of clerical and typing errors, the addition of factual details to existing allegations and the addition of 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 alteration pleading a new cause of action."[21]To those principles can be added those set out in Adams & Raynor v West Sussex County Council [1990] IRLR 215: 14 "Such an appeal is not a rehearing. Unless there is perversity within the well-established principles, the appellant must establish an error of law. 15 In giving its decision in interlocutory proceedings an industrial tribunal is exercising its discretion, but that discretion must be exercised within the powers given to the industrial tribunal on that issue and within the relevant legal principles which have been evolved largely through decisions of appellate courts. It is the exercise of a judicial discretion. 16 It seems to us desirable, and indeed we would have expected, that the same principles would apply to interlocutory appeals as for final appeals even though the former will in the main be the result of the exercise of a discretion. Thus, in examining an interlocutory order of an industrial tribunal or of a chairman sitting alone we would define three issues:(a) Is the order made one within the powers given to the tribunal?(b) Has the discretion been exercised within guiding legal principles? eg as to confidential documents in discovery issues.(c) Can the exercise of the discretion be attacked on Wednesbury principles?"[22]It must be borne in mind that the interference with the exercise of discretion by an Employment Tribunal can only occur in a case where there is the wrong application of a principle of law, or the taking into account of an irrelevant consideration, or the failure to consider a relevant matter: Carter v Credit Change Limited [1979] ICR 908. Our Conclusions[23]We have decided to accept the arguments of the Respondent. That is because we consider the Tribunal has made an error of law in its consideration of the Kimble case. For the reasons given by Mr Sutton today, we hold that it was an error for the Tribunal to be so concerned as to the impact of the instant case upon Kimble . Kimble was expressly not joined with the instant case. Its pleadings cannot be relevant to the decision of the Employment Tribunal and as the Kimble case was settled on terms without reference to the outcome of the instant case.[24]Further, the Tribunal failed to take account of the interests of the parties pursuant to Selkent , since the Applicant had not contended that he could not go on with the case as amended.[25]Having heard argument, this case will be sent back to the same Tribunal unless the Regional Chairman, for reasons of practicability, considers that to be inappropriate. We consider that with our direction, substituting as we do our decision that the Notice of Appearance is amended, the Tribunal will be best placed to deal with the outstanding application for costs. It may care to do so when the case is complete so that it can evaluate whether the amendment had any merit.[26]We would like to thank both the Counsel today for the expeditious way in which they have handled this case.