MR B BOWMAN v ITO (WATFORD) LTD [2004] UKEAT 0127_04_0605

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2004] UKEAT 0127_04_0605Case No Appeal No. UKEAT/0127/04Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR B BOWMANAPPELLANTITO (WATFORD) LTDRESPONDENT
Before
His Honour Judge Birtles Mr P R A JacquesDate 6 May 2004
[1]APPEARANCES For the Appellant MR S R QUINLAN (Representative) Instructed by: Messrs Nicholas Frimond Solicitors 6 Riverview Walnut Tree Close Guildford Surrey GU1 4UX For the Respondent MRS H JONES (Solicitor) Messrs Hazel Jones Solicitors Business & Technology Centre Bessemer Drive Stevenage Hertfordshire SG1 2DXQ SUMMARY Practice and Procedure The issue was could Appellant amend IT1 claiming unfair dismissal to add a claim for disability discrimination some 3 months after IT1 lodged. EAT found no ET error of law. The Appellant had knowledge of his disability and the assistance of a full time representative at the date the IT1 filed. HIS HONOUR JUDGE BIRTLES This is an appeal from the decision of an Employment Tribunal sitting at Watford on 16 January 2004. The decision was sent to the parties and entered in the Register on 27 January 2004. The Chairman was Ms Isobel Manley and the members were Mr R A Harris and Mr V Turner.[2]The unanimous decision of the Tribunal was that it was not just and equitable to allow the Applicant's application to amend the Originating Application to include a claim under the Disability Discrimination Act 1995 . The hearing was solely concerned with that single preliminary issue.[3]The material facts are set out in paragraphs 1 to 5 of the Employment Tribunal decision:
"1. The Applicant submitted a claim for unfair dismissal on the 1 July 2003. As his employment had terminated on the 2 April 2003 this was just within the 3 month time limit. On the 2 October 2003 representatives wrote on behalf of the Applicant requesting an amendment to the Originating Application to include a claim on the Disability Discrimination Act. The matter was set down for preliminary hearing to determine whether to allow that amendment. The Respondents opposed the application. 2. The issue for the Tribunal was to determine whether it was just and equitable to allow the amendment. It was accepted by the Applicant's representatives that it was outside the relevant time limit of 3 months after the act of discrimination. 3. The Tribunal heard evidence from the Applicant. Facts 4. The Tribunal found the following relevant facts. The Applicant was dismissed from the Respondents which is a Registered Charity working with disabled people in the employment context, where he had worked for 12 years on the 2 Apri12003. His Originating Application to the Employment Tribunal was completed by a Trade Union Representative and received by the Tribunal Office on the 1 July 2003. That Application was a claim for unfair dismissal. Within the body of that claim the Applicant says: "
I took a period of sick leave due to the stress caused by these allegations" and "later I was not well enough to continue without the assistance of my representative I was on certificated sick leave for stress at this time" and, finally "he knew I was sick and unable to attend". There is no other mention within that application of anything which might suggest the Applicant was considering a claim under the Disability Discrimination Act. The Originating Application appears to have been completed by someone with experience of Employment Tribunals and is a competent and thorough document. 5. After the filing of the application the Applicant tried to find a solicitor who could represent him. He saw the solicitors who are now representing him on the 24 September and was advised that he might wish to make a claim under the Disability Discrimination Act. The letter from those solicitors requesting the amendment is dated the 1 October 2003 and was received at the Tribunal Office by fax on the 2 October, 2003."[4]In addition, it is important to note that the Originating Application, which is in the EAT bundle at pages 13 through to 16 makes it quite clear that the claim was one of unfair dismissal and paragraph 13 of the Originating Application says this:
"I was dismissed because of my partner's claim against ITO Limited. Mr Williams has since gone on a witch-hunt looking for reasons to justify my dismissal retroactively."
That Originating Application had been filled in by a Mr Nalin Cooke who was a UNISON representative. It would appear that he was a full-time official. There is no mention in that Originating Application of a claim for disability discrimination or that Mr Bowman or his then representative considered that he had been discriminated against on the grounds of any disability.[5]The Employment Tribunal conclusions are set out in paragraph (4) (typographical error for 8) of its decision:
"(4) The Tribunal do not accept that it is just and equitable to allow this amendment to the Applicant's claim. We have taken into account all the relevant factors. We take into account the fact that the Applicant was advised by an apparently competent and experienced Trade Union Adviser before the claim was instituted and that both the Applicant and the Trade Union Adviser were well aware of the issues around disability particularly given the nature of the Respondent's business. We have also taken into account the respective position of the parties including the fact that the Respondents are a charity, whose business is in dealing with people with disabilities in the work place. We have also taken into account the delay in requesting the amendment which was some 3 months after the original claim was filed. We are also concerned by the significant delay which will be caused for both parties for the final hearing of this case. At the moment the case is listed or a two day hearing on the 10 and 11 February. If the Tribunal were to allow this amendment, it is clear that that hearing could not go ahead as there would be a number of other matters which would have to be addressed. We are particularly concerned about the obvious prejudice to the Respondents of having to prepare for a much longer case than the 2 days for which it has been listed. We are particularly concerned because there is clearly an issue as to whether or not the Applicant is disabled within the Act which will need to be addressed by reference to medical evidence. Weighing all these factors in the balance and considering that the Applicant's claim for unfair dismissal can indeed proceed as listed, we have decided that it is not just [and equitable] to allow this amendment."
The Law[6]The law relating to the powers of this Tribunal to allow an appeal against the decision of an Employment Tribunal which refuses an extension of time either under the unfair dismissal legislation or under discrimination legislation is set out in two cases. The first is the well-known case of T J Hutchison v Westwood Television Ltd [1976] IRLR 69. It is sufficient to refer to the judgment of Phillips J at paragraph 11 where he says this:
"The third thing which we have to say about s. 76(5) is this. Because it is such a wide discretion conferred upon an Industrial Tribunal the task which an Appellant has in such a case is a heavy one. Really he must show, if he is to succeed upon appeal, that the Industrial Tribunal demonstrably took a wrong approach to the matter, or they took into accounts facts which it ought not to have done, or that it failed to take into account facts which it should have done, or as a last resort which is always open upon an appeal, that the decision was so unreasonable in all the circumstances that no reasonably instructed Tribunal could have reached it."
[7]That statement of principle was relatively recently applied in a disability discrimination case by the Lindsay J in the case of Robinson v The Post Office [2000] IRLR 804 . At paragraph 34 Lindsay J, having referred to the passage I have just recited, said this:
"In our view that remains good law. Applying it to this decision of the Tribunal, we can see no such failing on the Tribunal's part and it is especially a matter for the Tribunal to decide what weight to attribute to the various matters, the various competing considerations that are laid before it in the exercise of such a jurisdiction."
[8]I turn then to the Notice of Appeal and we are grateful to Mr Quinlan for the very helpful Skeleton Argument and his oral submissions. I will deal with each of the paragraphs of the Notice of Appeal in turn. In essence this is an appeal which alleges that the Employment Tribunal took account of a number of irrelevant considerations when deciding to exercise its discretion to refuse to permit the Applicant to amend his Originating Application to claim disability discrimination as well as unfair dismissal. We do not have the benefit of a framed amended Originating Application, but Mr Quinlan has told us that in essence it consists of two parts, first that the dismissal itself was an act of direct discrimination contrary to section 5 (1) of the Disability Discrimination Act 1995 and, secondly, that the failure to permit Mr Bowman to have a trade union representative present to assist him at the disciplinary hearing was a failure to make a reasonable adjustment contrary to section 6 of the Disability Discrimination Act 1995 .[9]I turn then to the grounds of appeal and I will use the same numbers as are contained in the Notice of Appeal. 6.3 "The Tribunal incorrectly considered the competence of the Appellant's trade union representative of whether he had knowledge of Disability Discrimination Act issues.[10]As I have pointed out, the Employment Tribunal commented upon the quality of the Originating Application which indeed to us seems to be a model one: it of course only dealing with unfair dismissal. Second, the trade union adviser appears to have been a full-time officer of a trade union which is well-known to us as a trade union which has, because of the groups of workers that it represents, extensive knowledge of disability issues. UNISON is well-known as probably the most important trade union in the field of local government, apart from other areas. It seems to us to be a relevant matter that Mr Bowman gave instructions to a trade union officer who then filled in a competent Originating Application. The failure, if failure there was, was a failure on Mr Bowman's part to bring to his trade union adviser the material facts upon which a claim for disability discrimination could be based. 6.4 "The Tribunal incorrectly placed too much weight on the fault of the trade union representative, which is not consistent with the exercise of discretion on a just and equitable basis."[11]We do not see the logic of that and indeed we do not find it in paragraph (4) of the conclusions of the Tribunal. The Tribunal did not in fact fault the trade union representative. The point is that with a competent trade union representative, if this issue had been drawn to his attention by Mr Bowman, there is no doubt that the issue of disability discrimination would have been picked up and would have appeared in the Originating Application. 6.5 "The Tribunal failed to consider its own contribution to the delay caused in these proceedings. The Tribunal considered the proximity of the main hearing when considering its discretion. Such delay was not of the Appellant's own making and the improper exercise of the discretion in those circumstances was prejudicial to the Appellant."[12]The point here is that the chronology shows this: 2 April 2003 Date of dismissal 31 June 2003 Date of submission of Originating Application 24 July 2003 Date of submission of Notice of Appearance 24 September 2003 Appellant instructs his current solicitors 1 October 2003 Appellant's solicitors write to the Employment Tribunal amending the Originating Application 20 October 2003 The Employment Tribunal postpones the scheduled hearing at the Respondent's request until 10 and 11 February 2004. 11 December 2003 Appellant's solicitors write to the Employment Tribunal with a letter reminding the Tribunal of the application to amend the Originating Application 17 December 2003 The Employment Tribunal writes to the Appellant's solicitors agreeing to the amendment of the Originating Application 18 December 2003 The Employment Tribunal gives notice of a hearing on a preliminary point to consider the Appellant's late application to amend the Originating Application 16 January 2004 The Employment Tribunal hearing on the preliminary point."[13]Complaint is made by Mr Quinlan that although his firm wrote to the Employment Tribunal on 1 October making an application to amend the Originating Application they heard nothing. We have no explanation. We do not know whether that letter was received. We do not know if that letter was received and then what happened to it. However, the fact of the matter is it was not until 11 December 2003 that Mr Quinlan's firm wrote to the Employment Tribunal asking them what had happened. So on any factual basis, some 2½ months had passed since the original application without any attempt being made to chase it up. That failing cannot be laid at the door of the Employment Tribunal. Indeed, on the evidence before us we cannot see that there was any failing on the part of the Employment Tribunal because there is no evidence that the original letter of 1 October 2003 was actually received.[14]What the Employment Tribunal was faced with on 14 January was the fact that there was a hearing scheduled for the middle of February 2003, i.e. less than a month later. It is quite clear from the Tribunal's reasoning that if they permitted the amendment there would have had to have been an adjournment of the hearing in mid-February. There would have been a substantial delay because it was quite clear that disability was in issue.[15]It seems to us that the question of postponing the hearing, of breaking the fixture for 10 and 11 February was a relevant consideration for the Employment Tribunal. What weight they gave to it was a matter for them. 6.6 "The claim for disability discrimination overlaps and is in addition to the claim for unfair dismissal, a factor which lessens the prejudice to the Respondent and was not considered by the Tribunal."[16]While it is correct that there is no specific reference to the fact that at least part of the claim for disability discrimination overlaps with the claim for unfair dismissal, the nature of the claim was clear to the Tribunal. The letter of 1 October 2003, which is in the bundle before us, makes it clear what the claim is. We find it inconceivable that this experienced Tribunal were not aware of what the nature of the claim was and the fact that there was some overlap with the claim for unfair dismissal. Although it is not specifically referred to, we have no doubt that they were entitled to take that into account and did take it into account. 6.7 "The tribunal improperly took into account the Respondents' business activities."[17]This arises in two ways. First, that this Respondent is a small charity which assists in training and finding work for people with disabilities who are thereby handicapped on the labour market. Second, it is said that the Tribunal should not have taken the business activities into account the knowledge of disability discrimination or should not have attributed such knowledge to Mr Bowman because of the fact that he was employed by this particular Respondent.[18]So far as the first point is concerned, we can see nothing wrong in the Employment Tribunal taking account of the fact that this was a small charity with limited resources. It is quite clear from the passage which I have read in paragraph (4) of the decision that that was a factor which the Tribunal did take into account. In our judgment they were entitled to do so.[19]Second, it is relevant that Mr Bowman worked for a charity which helped to place people with disabilities in the workplace. He himself, as is clear from the medical evidence which is before us, has been aware of his particular condition for a number of years and had taken indeed numerous days off from work. 6.8 "By denying the Appellant a hearing on the extent and fact of his disability and its effect on his ability to amend his IT1 earlier, the tribunal has denied Mr Bowman a fair hearing under Article 6.1 Sch. 1 Human Rights Act 1998."[20]In our judgment Article 6.1 does not add anything to the existing English case law upon the amendment of an Originating Application, whether by way of unfair dismissal or discrimination law. In this case the Employment Tribunal properly considered all material considerations, did not take into account any irrelevant considerations and gave such weight to those relevant considerations as it thought proper to do so. There is no error of law here and no breach of Article 6.1 of Schedule 1 of the Human Rights Act 1998 .[21]For those reasons this appeal is therefore dismissed.