MRS E I GOLDING v SOUTHFIELDS COMMUNITY COLLEGE [2006] UKEAT 0395_06_1210

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2006] UKEAT 0395_06_1210Case No Appeal No. UKEAT/0395/06Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MRS E I GOLDINGAPPELLANTSOUTHFIELDS COMMUNITY COLLEGERESPONDENT
Before
His Honour Judge Richardson Mr D EvansDate 12 October 2006
[1]APPEARANCES For the Appellant MR S BELLARA (of Counsel) Instructed by: Messrs Fadiga & Co Solicitors 2 The Boulevard Balham High Road London SW17 7BW For the Respondent MR P MARTIN (of Counsel) Instructed by: Messrs Lyons Davidson Solicitors Oriel House 52-54 Coombe Road New Malden Surrey KT3 4QP SUMMARY Practice and Procedure – Application/Claim Amendment. Tribunal erred in law in its reasons for refusing an amendment to plead section 103(A) of the Employment Rights Act 1996. Amendment permitted. HIS HONOUR JUDGE RICHARDSON This is an appeal by Mrs E I Golding against an order of the Employment Tribunal sitting in London South at a hearing on 7 November 2005. By its order the Tribunal directed that Mrs Golding's claim against her former employers, Southfields Community College (hereafter 'the College') should proceed as an unfair dismissal claim only. The Tribunal declined to allow an application on Mrs Golding's behalf to amend her claim form inter alia to explicitly a claim under s103(A) of the Employment Rights Act 1996 . There is also a cross-appeal by the College with which we shall deal briefly below.[2]The procedural history of this matter both before the Tribunal and on appeal has been somewhat complicated and intricate. For today's purposes it is not necessary to set it out in full. The Tribunal's reasons dealt with the history until November 2005. There is a judgment by Judge Clark dated 14 July 2006 which comprehensively unravels all procedural knots in the appeal. We can concentrate on salient points in the history, the claim form and the proposed amendment. The Claim form and proposed amendment[3]Mrs Golding's claim form was presented on 19 May 2005. The only claim explicitly made was a claim of unfair dismissal. Details were given in paragraph 5.1 of the form. Mrs Golding explained that she had many years of unblemished service. She continued, saying:
"My problems began with the appointment of a new head Teacher – Ms Valin. I was bullied and intimidated by Ms Valin, I coped as best as I could under the circumstances. My main concern was when Ms Valin asked me to 'massage the figures' for absences that were unaccounted for when children were away from school. I found this very stressful, especially when these fraudulent reports were being sent to Local Authority and D.F.E Depts. and School Governors. I made my objections known. It was then that the bullying and intimidation began. As a result of the above I was diagnosed with extreme stress /depression. My G.P. prescribed anti-depression tablets and counselling. I am still on anti-depressants. I was dismissed on 28/02/05. My ex-employers say my dismissal is due to ill health. I say its because I made my objections known. I believe have been unfairly dismissed."
[4]Although the only claim explicitly made was a claim of unfair dismissal, the form suggested that there might be a claim about something else. Box 3.4 was answered to that effect. Nowhere on the form was any such claim explicitly identified. Box 9 of the form, for example, was simply answered "Further particulars to follow. I reserve the right to amend my ET1 accordingly."[5]The College's response appreciated that there might be some other claim. It said:
"7.23 It is not clear whether the Claimant is making a claim for Disability Discrimination or the fact that she was dismissed due to making a public interest disclosure but both these claims are strenuously denied."
[6]As time went on, Mrs Golding's solicitors intimated that there might be an amendment but it seems that the text of a proposed amendment was first seen by the Tribunal on 3 November 2005, and by the College's representatives at about that time. The proposed amendment headed "Amended Originating Application" set out Mrs Golding's case about falsifying attendance figures in considerably more detail than her original claim form. On the question of any protected disclosure, it did not give much detail. It said simply that after Mrs Golding had raised her concerns about what she was being asked to do by the Head, the Head's behaviour changed. It stated that her concerns had been raised with the Head. At the conclusion of the proposed amendment there was an explicit claim that Mrs Golding was dismissed unfairly, contrary to s103(A) of the Employment Rights Act 1996 . S103(A) is that provision in the Employment Rights Act 1996 which renders automatically unfair a dismissal the principal reason for which is that the employee made an protected disclosure. There was, incidentally, although we are not concerned with it, also a claim for unlawful disability discrimination. The Tribunal's decision[7]The case had been listed for hearing on 7 November 2005. The hearing began with an application by Mrs Golding's counsel to amend the claim in accordance with the form which we have identified. The Tribunal rejected the application. The Tribunal directed itself that it should apply principles set out in Selkent Bus Company Ltd v Moore [1996] IRLR 663. We shall return to these principles later in the judgment.[8]As regards the proposed amendment to add a disability discrimination claim, the Tribunal said:
"17.1.6 Applying the Selkent principles, the Tribunal finds that the application to add the DDA Claim is not a mere re-labelling of facts already pleaded but rather a substantive amendment to the original Claim. That application being presented at the Tribunal on 3 November 2005 is outside the three month time limit for brining such a claim assuming that the act complained of (which is not clear from the facts available to the Tribunal) was, at the very latest, the dismissal on 28 February 2005. 17.1.7 The Tribunal does not consider that it would be just and equitable to grant an extension of time sufficient to validate that claim. The Claimant has had ample time to present that claim, indeed a specific extension was granted by the Tribunal (paragraph 8 above) to enable her to do so. The Respondent has quite reasonably prepared its defence on the case as pleaded and would incur considerable extra expense in defending a DDA claim at this stage of the proceedings. It would be unlikely to be able to recover any costs from the Claimant should any cost order ultimately be made."
There is no appeal against the Tribunal's decision in respect of the disability discrimination claim, but we set out those paragraphs because the Tribunal effectively repeated them when dealing with the protected disclosure claim under s103(A). It said as regards that claim the following:
"17.2.1 In the originating Claim the Claimant states at paragraph 5.1 that she was asked to "massage the figures" for student absences and that she "…made her objections known."
She later asserts that her subsequent dismissal was because she "had made her objections known". 17.2.2 The Claimant's Amended Originating Application fails to give particulars of the alleged "qualifying disclosure" (s. 43B ERA 1996) nor in what form or manner the Claimant "raised her concerns" in order to avail herself of the protection of the protected disclosure provisions. 17.2.3 For the reasons set out above at 17.1.6 and 17.1.7, mutatis mutandis, the Tribunal also refuses the amendment in respect of the Protected Disclosure Claim."[9]At this point we mention two procedural curiosities. First, the order of the Tribunal says that the application of Mrs Golding which was refused was an application for leave to amend the claim to include "claims of sex and disability discrimination". This is plainly incorrect. The reference should be to the claim of protected disclosure dismissal and not to sex discrimination. This is the point which the cross-appeal makes.[10]Secondly, when the Tribunal gave its reasons for its decision, they included the following paragraph:
"In further considering its judgment as set out herein in respect of the protected disclosure claim the Tribunal considers that there may be grounds for reviewing that part of its judgment and invites the parties to make submissions in that regard to the Tribunal within 14 days of the date of promulgation of this judgment."
[11]For reasons which are set out in the judgment of Judge Clark, this invitation was not taken up and in all probability could not have been taken up due to the nature of the order and the limitations on a Tribunal's power of review. Hence this appeal rather than a review.[12]Finally we should mention that the hearing due to commence on 7 November 2005 had to be adjourned in any event for a reason unconnected with any amendment. A witness for the College had suffered an accident. The Tribunal allowed an application for an adjournment and gave case management directions. Submissions on appeal[13]On behalf of Mrs Golding it is submitted that the claim under s103(A) of the Employment Rights Act 1996 had formed part of the original claim. Reference is made to sections 3, 5 and 9 of the claim form which we have quoted above. It is submitted that it is plain that Mrs Golding was complaining that she had been subjected to a detriment and dismissed because she made it clear that she disapproved of a practice that she believed to be wrong and improper. It is plain, it is submitted, that what is being alleged is detrimental treatment and dismissal following the making of a qualified protected disclosure. It is conceded that those precise words are not used and the sections of the Employment Rights Act are not referred to, but it is submitted that there is no obligation upon her to do so. Therefore, it is submitted, the document entitled "Amended Originating Application" did not raise a new allegation but simply provided further particulars of an existing allegation claimed in the claim form. Therefore, it is further submitted, Mrs Golding did not need leave to add the claim of dismissal on the ground of making a protected disclosure. The document produced at the outset of the hearing simply provided further particulars of an existing allegation, and if leave to amend was being sought it was simply to add factual details to existing allegations and labels to facts already pleaded.[14]On behalf of the College the following submissions are made, and we summarise. First, it is submitted that leave to amend was necessary. The application to the Tribunal was indeed an application for leave to amend on Selkent principles. Issue is taken with the submission that no amendment was required to make the claim. Essential ingredients, it is submitted, of an unfair dismissal claim by reason of protected disclosure were omitted from the claim form. In particular, the claim form did not say to whom any such disclosure was made. Secondly, it is submitted that whether a claim form contains the necessary basis of a claim is a matter for the Tribunal. It does not in itself raise any question of law. Reference is made to Housing Corporation v Bryant [1999] ICR 123 at 129-130. The Tribunal's finding as to the content of the claim form is no more than an aspect of the exercise of its discretion. Thirdly, it is submitted that even if, as a matter of principle, the Tribunal erred in its assessment of the claim form, the allowing of an amendment is still a matter of discretion to be exercised by the Tribunal on remission and not decided by the Appeal Tribunal at this hearing. Conclusions[15]As we have set out above, the Tribunal rejected the amendment insofar as it dealt with dismissal by reason of protected disclosure, on the basis that it was not a re-labelling of facts already pleaded but a substantive amendment to the original claim in respect of which time limits would have to be applied. That is plain from the reference made by the Tribunal in paragraph 17.2.3 to its reasons, in particular in 17.1.6. In our judgment, the Tribunal erred in law in this respect. In our judgment the claim form identified the essential basis of a claim that Mrs Golding has suffered dismissal by reason of protected disclosure. The claim form does not address with any precision the matters which Mrs Golding will have to establish in order to meet the definition in section 43a and 43b, nor for that matter does the amendment, but in our judgment the makings of the case are there.[16]We refer to Selkent . In that case, Mummery J (then the President of the Appeal Tribunal) set out principles relating to applications to amend. The principles are well-known and are set out in paragraphs 18-24 of the judgment. As he said, applications to amend are of many different kinds. Mrs Golding's application insofar as it concerned protected disclosure involved the addition of factual details and the addition of another label for facts already pleaded but in our judgment the application did not involve entirely new factual allegations changing the basis of the existing claim. She had always said that she was bullied, intimidated and finally dismissed because she had made known her objections to massaging absence figures.[17]It is true that there is no detail in the claim form as to the person to whom the objections were made, nor any statement as to which limb of section 43(B)(1) was applicable, but it is to our mind clearly implicit that the objection was to the employer and it is not hard to see that a complaint of such conduct against a Head Teacher may fall within section 43(B)(1)(b). The Tribunal, in paragraph 17.2.2 referred to the lack of particularity but this was not the ground for refusing the amendment.[18]In our judgment, the Tribunal's error in characterising the amendment as raising a substantive amendment to the original claim outside time limits was an error of law. That characterisation is not sustainable. The amendment was not so fundamental. The Tribunal ought to have considered it as an amendment which added factual details to the claim and added a label to facts pleaded.[19]The question then arises - what should the Appeal Tribunal do now? The Appeal Tribunal, having found an error of law in a Tribunal's decision can substitute its own discretion for a discretion which the Tribunal would have exercised only when it is plain beyond argument what course the Tribunal should have taken. Otherwise, it must remit the matter to the Tribunal.[20]In our judgment, given the particular circumstances of this case, it is plain that if the Tribunal had properly characterised the proposed amendment, it would have allowed it. As we have said, the case was to be adjourned in any event for reasons which were no fault of Mrs Golding's but simply the result of an accident. Case management directions were therefore given in any event. If the amendment had been correctly characterised we have no doubt that it would have been allowed and that case management directions would have been given for the necessary additional particularity and for the matter to be comprised in witness statements. Therefore, in principle, the amendment will be allowed by this Tribunal.[21]However, time has passed and we are not in a position today to give the consequential case management directions which the Tribunal would have given. The advocates instructed today have been instructed for the appeal and are not fully cognisant with the background circumstances so as to enable case management directions to be given. That is, we make it absolutely plain, not a criticism of them; it was their task today to come to deal with the appeal. But it follows that an urgent hearing at the Tribunal will be required for case management. It is possible that adding a case of unfair dismissal by reason of protected disclosure may add relatively little to the case. The principal disclosure seems to have been to the Head Teacher. It seems to have been the Head Teacher who is alleged to have been the person responsible for the harassment. If so, very little may be added to the scope of this case by the amendment. But ultimately that it a matter which is going to have to be considered at a case management hearing by the Tribunal.[22]For those reasons, the appeal will be allowed. The s103A amendment will be allowed, and the cross-appeal falls away in these circumstances.