MR E MUSCHETT v PARKWOOD HEALTHCARE [2007] UKEAT 0105_07_1806

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2007] UKEAT 0105_07_1806Case No Appeal No. UKEAT/0105/07Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR E MUSCHETTAPPELLANTPARKWOOD HEALTHCARERESPONDENT
Before
His Honour Judge BurkeDate 18 June 2007
[1]APPEARANCES For the Appellant MR E MUSCHETT (The Appellant in Person) For the Respondent No appearance or representation by or on behalf of the Respondent SUMMARY Practice and Procedure - Application /Claim - Amendment - 2002 Act and Pre-action Requirements The Claimant's ET1, presented during his employment, made reference to numerous complaints but did not identify sex discrimination as one of them. He had presented a formal grievance in which he had made no reference to sex discrimination. He raised the possibility of a sex discrimination case for the first time a day or so before the [PTR], which decided that he had not made such a complaint and had not sought leave to amend to make it. Held (1) he had not made such a complaint (2 he had not sought such leave but (3) if he had sought leave, it would have been refused because it would have failed by reason of s.32 of 2002 Act – no sex discrimination grievance had ever been put forward; see Canary Wharf v Edebi . HIS HONOUR JUDGE BURKE QC This is an appeal brought by Mr Muschett, the Claimant, against a judgment made at a pre-hearing review by the Employment Tribunal in the person of Mr Bloch QC sitting alone at Watford. The judgment was given on 18 May 2006; it was sent to the parties with written reasons on 23 June. By that judgment the Tribunal struck out the claim put forward by Mr Muschett in his claim form with the exception of a claim for wrongful deduction of wages, which it was accepted had been properly and lawfully brought. His appeal was originally rejected by the Employment Appeal Tribunal at the sift stage by His Honour Judge Clark; but it was permitted to go to a full hearing by Mr Justice Wilkie on 28 February 2007. I do not know whether Mr Justice Wilkie gave a reasoned judgment; if he did I have not seen it; but I have approached this case entirely afresh. Mr Muschett has appeared in person before me, and has put his arguments before me with courtesy and care. I am grateful to him. The Respondents before the Tribunal and here, Parkwood Healthcare Limited, have not been represented today. Their solicitors, Messrs. Weightmans, put substantial reasoned arguments in their answer to the Notice of Appeal and have written saying that they wish to rely on those arguments.[2]Mr Muschett presented his claim to the Watford Employment Tribunal in January 2006. That claim was described by the Chairman as 'diffuse', a description with which I agree. Mr Muschett, who is not a lawyer and was not, he says, a member of a trade union, did not have any help; and it is apparent from his claim form that he had completed it himself. I have only those parts of the claim form on which he had written anything of substance, other parts do not seem to have been copied; but nothing turns on that. In that claim form Mr Muschett set out a series of allegations starting with "Verbal assault 19-10-05 Controller Senior Staff myself – others were present". From that point he goes on to describe "Bullying, Harassment, Intimidation, Forced to do overtime" on a series of dates between January 2005 and March 2005 inclusive. He refers to verbal abuse in March 2005, to health and safety issues on 1 March 2005. He says that he was unfairly treated in April because he was forced to do a 13-hour shift. In March he was required to do long journeys in unfavourable conditions. He goes on to say that his complaint relates mainly to the verbal assault on 19 October 2005 and to health and safety issues.[3]These allegations are of a nature familiar to the Employment Tribunal, for example, in a constructive unfair dismissal claim, as forming the basis on which an employee commonly says "my employers have treated me in such a way as to break the implied term of trust and confidence and I am leaving their employment as a result of that breach"; but Mr Muschett, and this is not in any sense a critical comment, did not at any time terminate his employment. Indeed at the time of the hearing before the Tribunal his employment continued. If it has terminated since, it has terminated in circumstances which do not appear from the papers before me; and his expressions of grievances of the type which I have set out, do not reflect any statutorily arising cause of action or claim which the Employment Tribunal had jurisdiction to hear.[4]Parkwood, in their response, said that, at least in relation to some of the multiple complaints, there has been a formal stage 1 grievance process, with reference in particular to the verbal assault as alleged on October 2005, which was decided around the time at which the claim form was presented (I will come to the precise dates in a moment); and which Mr Muschett then had appealed; his appeal was still outstanding.[5]The pre-hearing review was, no doubt, ordered so as to enable the Tribunal to explore and identify the extent to which the Tribunal had jurisdiction to adjudicate upon the complaints which Mr Muschett sought to put forward; and that is what the Chairman on 18 May 2006 did.[6]In the course of the hearing it emerged that the causes of action which Mr Muschett wanted to pursue were, firstly, unlawful deduction of wages, and secondly, sex discrimination. The sex discrimination was said to be the verbal abuse; that was said to be have been discriminatory in gender terms because a hypothetical female comparator in the same position would not have been abused in the same way.[7]The Chairman concluded that the claim form did not raise any complaint of sex discrimination. Such a complaint, it appears, had been first raised, and indeed Mr Muschett in arguing before me has accepted this was so, in a letter which was written to the Tribunal or received by the Tribunal on 15 May 2006, in which Mr Muschett said:
"If it might help my claim, I believe there may well be grounds for sex discrimination in my claim."
He produced a witness statement dated 17 May 2006, the day before the hearing, which identified the same point. Thus that complaint was first raised some four months later than the presentation of the claim form, which occurred upon or about 13 January 2006 and, of course, seven months or more after the last of the episodes to which the claim form related, namely 17 October 2005, that being the incident in respect of which Mr Muschett was seeking to allege, now for the first time, sex discrimination.[8]The Chairman concluded that the idea of sex discrimination was a late afterthought by the Claimant, first suggested a date or two before the hearing, that Mr Muschett had been unable to point to any claim in the originating application which amounted to a claim of sex discrimination, and that there was no application before him to amend the claim form. In those circumstances, he concluded that there was no valid sex discrimination claim: and thus the claim was struck out, save in relation to the claim for unauthorised deductions.[9]The Chairman went on to say that Mr Muschett sought to advance an additional claim because he considered that Parkwood had failed to respond to his grievance appropriately. The Chairman pointed out that there was no claim for unfair dismissal and there was no independent cause of action which arose out of failure to proceed appropriately with a grievance: thus he concluded that only the claim for unlawful deductions could go forward.[10]There was an application for a review which was rejected on 19 July 2006; there is, so far as I am aware, no appeal in respect of that.[11]In his Notice of Appeal Mr Muschett submits that the tool of striking out should be rarely used and that, because he had raised sex discrimination in his letter of 15 May and in his witness statement of 17 May 2006, using the words that I have already quoted, words described, again accurately in my judgment, by the Chairman as 'tentative' the Chairman ought to have treated the letter as an application for leave to amend to add a claim for sex discrimination: or to have considered whether there was prejudice to Parkwood, and, there being none, ought to have exercised his discretion in favour of permitting that amendment. In his skeleton argument Mr Muschett makes the same points, submitting that he did not understand the procedure and in particular that he did not understand that he needed expressly to seek permission to amend.[12]Parkwood, in their written submissions, draw attention first of all to the fact that the claim form does not refer to sex discrimination at all. They refer in particular to paragraph 6.1 of the claim form which says: Please tick the box or boxes to indicate what discrimination (including victimisation) you are claiming about: under the heading for paragraph 6 'Discrimination'. A total of 5 boxes may be ticked, namely Sex, Disability, Sexual orientation, Race, Religion or belief. None of those are ticked. Below, however, appear these words against paragraph 6.2: Please describe the incidents which you believe amounted to discrimination, the dates of these incidents and the people involved. and it is after that question that Mr Muschett set out the account of his complaints to which I have referred. Under paragraph 9 'Other Complaints' in answer to the question: Please explain what you are complaining about and why . in broad terms he repeated what he had said earlier; but then he said this:
"…I was unfairly disciplined twice my company has by enlarge ignored my status and claims for discrimination and harsh treatment."
So the word "discrimination" again is to be found.[13]Parkwood go on to submit that the matters now sought to be put before the Tribunal as sex discrimination would if allowed to be advanced, be put before the Tribunal well out of time, that Mr Muschett tried to persuade the Chairman that the claim form did give rise to a sex discrimination claim, did not seek to amend and that the question of a discretion, which is to be exercised should leave to amend be sought along the principles set out in the well known case of Selkent Bus Co Ltd v Moore [1996] IRLR 66, never arose, and that for those reasons this appeal should fail. They also say that, if an amendment application was made, it was not made in the proper form as required by rule 11 of Schedule 1 to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 and that, in any event, because no grievance was raised relating to sex discrimination at any stage, any complaint of sex discrimination would be bound to have failed even if properly raised, by virtue of the provisions of section 32 of the Employment Act 2002 .[14]Mr Muschett has tried manfully to grapple with arguments giving rise to complexities which perhaps it is unfair to expect a litigant in person to be able to deal with, at least with ease and facility. He has put before me three authorities to which it is necessary to refer. The first is Grimmer v KLM Cityhopper Ltd [2005] IRLR 596 , a decision of the Employment Appeal Tribunal in the form of His Honour Judge Prophet sitting alone. In that case, the Employment Tribunal had rejected Mrs Grimmer's claim form on the basis that she had not provided sufficient details of her claim. Her appeal was allowed, it being held that those parts of schedule 1 of the 2004 Rules, in particular rules 1, 2 and 3 which set out formal requirements for a claim form were not mandatory but directory, and that those rules should be applied in such a way that the threshold for access to the Tribunal should, in the interests of justice, be kept low.[15]I entirely accept and agree with the general proposition which appears from Grimmer , but Grimmer deals with different subject matter from that which is relevant to this case. This case is not about the technical or administrative rejection of a claim form but about whether in substance, the claim which Mr Muschett wished to advance, had ever been raised in the claim form at all. I accept and proceed readily upon the principle that the threshold for access should, in the interests of justice, be kept low. However, I am not persuaded that the Chairman in this case had raised the bar higher than it should in law have been raised; and while, as I have said, that principle undoubtedly applies in a general sense it does not apply with the same force to the situation with which this case is concerned.[16]Focussing on the undoubted fact that the rest of the claim form, apart from the unlawful deductions claim, was struck out, Mr Muschett has directed my attention to the leading Court of Appeal case on strike outs in the Employment Tribunal, namely Blockbuster Entertainment v James [2006] IRLR 630 and to a subsequent decision of the Employment Appeal Tribunal Redsdill v Smith & Nephew EAT/0704/05 decided by Cox J sitting alone on 17 July 2006, in which Blockbuster was followed. In both of those cases the issue was the circumstances in which the Tribunal should strike out a claim where there had been failure on the part of a Claimant to comply with orders of the Tribunal. The principle to be derived, in my judgment, from both those decisions is that, in such circumstances, the Tribunal must proceed on the basis of considering proportionality and the degree of failure on the part of the party whose case it is sought to strike out, as compared with the importance of ensuring that a party is not denied his or her right to access justice in the Employment Tribunal. In Blockbuster at paragraph 21, Sedley LJ, with whom Wilson and Brooke LJ agreed, said:
"It is not only by reason of the Convention right to a fair hearing vouchsafed by article 6 that striking out, even if otherwise warranted, must be a proportionate response. The common law, as Mr James has reminded us, has for a long time taken a similar stance: see Re Jokai Tea Holdings [1992] 1 WLR 1196, especially at 1202E-H. What the jurisprudence of the European Court of Human Rights has contributed to the principle is the need for a structured examination. The particular question in a case such as the present is whether there is a less drastic means to the end for which the strike-out power exists. The answer has to take into account the fact – if it is a fact – that the tribunal is ready to try the claims; or – as the case may be – that there is still time in which orderly preparation can be made. It must not, of course, ignore either the duration or the character of the unreasonable conduct without which the question of proportionality would not have arisen; but it must even so keep in mind the purpose for which it and its procedures exist. If a straightforward refusal to admit late material or applications will enable the hearing to go ahead, or if, albeit late, they can be accommodated without unfairness, it can only be in a wholly exceptional case that a history of unreasonable conduct which has not until that point caused the claim to be struck out will now justify its summary termination. Proportionality, in other words, is not simply a corollary or function of the existence of the other conditions for striking out. It is an important check, in the overall interests of justice, upon their consequences."
[17]I accept that principle and the principle derived from Redsdill, that if it is possible to have a fair trial between the parties, despite the misconduct which is alleged, by adjourning an imminent hearing and giving directions, then that is the course that should be taken. But the position here is very different. This is not a case in which a party has misbehaved or failed to obey the orders of a Tribunal and, therefore, the other party seeks to strike it out. This is a case in which the application for a strike out was made on the basis that there was no jurisdiction at all to hear the claim.[18]I turn therefore to look first at the claim form to see if Mr Muschett's argument that, reading it fairly and liberally in favour of a litigant in person, as one should do, the claim form does indeed give rise to or tell of a claim of sex discrimination. The reasons given by the Chairman perhaps do not reflect fully, although it could be said that they are reflected in paragraph 9 of those reasons, the fact that the account which I have described, which is given in the claim form, is given under the general heading 'Discrimination' albeit that none of the individual boxes saying what form of discrimination is alleged is actually ticked; and it is true that in box 9 the word "discrimination" is also used. But what appears to me to be decisive on this issue is that nothing in the claim form puts forward any suggestion or hint that sex discrimination was being alleged by Mr Muschett. Mr Muschett is not white; and his employers might perhaps, without it explicitly being made out (although they might very well not) have anticipated that the word "discrimination" could or might mean race discrimination; but I do not see anything which could lead any reader of the claim form to understand, however liberal an interpretation is given to it, that what was being alleged was sex discrimination. Indeed, I do not believe from the history that Mr Muschett did intend to allege sex discrimination at that time, because he agrees and accepts that he never made any reference to sex discrimination in the course of the grievance about the events of 19 October 2005 which led to his issuing the present proceedings. He does not dispute the factual conclusion that the idea of sex discrimination never emerged until the letter of 15 May and the witness statement of 17 May 2006. For those reasons, in my judgment, the Chairman came to the correct conclusion and certainly a permissible conclusion in deciding that the claim form did not give rise to a sex discrimination claim, however liberally construed. It is not in dispute now as I understand it, apart from the unlawful deductions claim, that none of the other matters which were raised if the claim form gave rise to any head of claim which the Tribunal had jurisdiction to entertain. Thus, subject to Mr Muschett's point that the Chairman ought to have treated what was happening before him as containing an application for leave to amend made implicitly, although never explicitly, I would dismiss this appeal.[19]So I turn to whether the Chairman should have (a) considered whether that there was an application for leave to amend, and (b), if he had done so, whether he would have been able to allow the application. Mr Muschett in effect says, and I put it to him in simple terms because he has expressed himself very fairly and forthrightly, "I did not know I had to make a formal application. I thought I had raised the issue and that would be enough". Unfortunately, it does not seem to me that a Chairman, with matters proceeding before him as they clearly did, would have or should have readily appreciated that there was, implicitly, an application for permission to amend to add the new claim - for new claim it undoubtedly was. It is not suggested that Mr Muschett used any such words as "Well I want to put this in my claim". The argument was all about whether his claim form did in fact include a sex discrimination claim, not whether it should be amended so that, for the future, it would do so; and in my judgment the Chairman did not make an error of law in approaching the matter as he did, again however generously one should and must act towards a litigant in person.[20]But I go further than that. Parkwood submit that, in any event, no application for leave to amend could have succeeded for a number of reasons. One of their reasons is that there was no formal application before the Tribunal; and if an application for permission to amend was to be made it would have had to be made in accordance with the rules set out in Rule 11 of Schedule 1 of the Regulations to which I have referred. It is quite clear that those principles were not complied with; but on the other hand the Chairman had case management powers to deal with an application to amend without the formalities of rule 11 having being complied with; and such a course is not infrequently taken when a need to amend is recognised in the course of a hearing. I am not impressed by the reliance upon rule 11.[21]However any amendment would not have been a mere correction of a factual assertion, nor would it have been a relabelling: it would have undoubtedly have been the adding of a wholly new complaint, one which had never been raised before. Adding it at that stage would have meant adding it when it was well out of time, at least in terms of the original three months' time limit, and when it had not been raised in the course of the grievance process which I have described. In those circumstances it seems to me that it is not at all unlikely, indeed highly likely, that, had the Chairman considered an application to amend, he would have rejected it for those reasons.[22]But there is another point. Section 32 of the Employment Act 2002 provides as follows:(1) This section applies to the jurisdictions listed in Schedule 4.(2) An employee shall not present a complaint to an employment tribunal under a jurisdiction to which this section applies if - (a) it concerns a matter in relation to which the requirement in paragraph 6 or 9 of Schedule 2 applies, and (b) the requirement has not been complied with." The jurisdiction to hear a claim of sex discrimination is a jurisdiction listed in Schedule 4 of the 2002 Act. Therefore Mr Muschett could not present a complaint to an Employment Tribunal about sex discrimination if his complaint concerned a matter in relation to which the requirement in paragraph 6 or 9 of Schedule 2 applied and that requirement had not been complied with. Thus the question must be asked, if the sex discrimination claim was a matter in relation to which the requirement set out in paragraph 6 of Schedule 2 to the 2002 Act applied, had that requirement been complied with.[23]It is at this point necessary to turn to the decision of the Employment Appeal Tribunal in Canary Wharf Management Ltd v Edebi [2006] IRLR 416 , a decision of the President. In that case, too, the issue arose as to whether the putting forward of a grievance by the employee was sufficient to amount to a compliance with the requirements of paragraph 6 of the Schedule. Mr Edebi had raised a grievance relating to his working conditions but made no mention of his condition of asthma. He later left his employment and made claims of disability discrimination, constructive dismissal, and unlawful deduction from wages. The employers took the point that there had not been raised a grievance in writing which satisfied Section 32(2) of the 2002 Act. It was conceded eventually that there had been a grievance raised in relation to constructive dismissal; but when the Employment Tribunal ruled that the letter which put forward Mr Edebi's grievances was sufficient to indicate that the complainant was attempting to raise a claim of less favourable treatment on disability grounds, the employers appealed to the EAT; and the appeal was allowed.[24]At paragraph 16 of his judgment the President said:
"Where the standard procedure is applicable, that merely requires that there should be the statement of the grievance in writing sent to the employer. However, since as I have indicated a grievance under the regulations means a complaint about action which the employer has taken or is contemplating taking in relation to him, it follows that the statement of the grievance is simply a statement of such a complaint. It must of course be a statement of the same complaint as the employee is seeking to have determined by the Tribunal."
At paragraph 21 the President turned to consider the content of the complaint letter. He said:
"The contrast between the standard and the modified procedure highlights an important feature of the way in which the complaint must be made under the former. As we have noted, there is no obligation to set out the basis of the claim. It is enough, therefore) that the employee identifies the complaint. The need to substantiate that with some evidence to justify it arises under the standard procedure at the second stage where the employee has to inform the employer what is the basis of the grievance. The only requirement, as section 32(2) makes plain, is that the complaint to the employer must be essentially the same complaint that is subsequently advanced before the Tribunal. As Burton J succinctly put it in the Shergold case: "the grievance must relate to the subsequent claim, and the claim must relate to the earlier grievance." "
This is returned to at paragraph 41 where the President said that "there was no doubt that the Claimant was contending that working conditions had had an adverse effect on his health and that was plainly an important element in his general claim for constructive dismissal" but he continued:
"… I do not think that it would be just to these employers, on a fair reading of the letter, to say that his references to his health problems fairly raised, even in a non-technical and unsophisticated way, an issue which the employer could reasonably understand had arisen under the Disability Discrimination Act."
And for that reason the appeal was allowed.[25]Applying that general principle here, it is perfectly clear that at no stage did Mr Muschett, as he accepts, raise any question of sex discrimination in the course of the grievance procedure which followed his complaints or thereafter; and, that being so, it appears to me that the Chairman would have had to reject any application to amend to add a sex discrimination claim on the basis that that claim was bound to fail by reason of Section 32(2). Accordingly, for those reasons, this appeal, not without some regret on my part, must fail and must be dismissed.