MRS P MACKAY v MR HANNA T/A BLAKES NEWSAGENTS [2007] UKEAT 0181_07_2006

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2007] UKEAT 0181_07_2006Case No Appeal No. UKEAT/0181/07Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MRS P MACKAYAPPELLANTMR HANNA T/A BLAKES NEWSAGENTSRESPONDENT
Before
His Honour Judge SerotaDate 20 June 2007
[1]APPEARANCES For the Appellant MR TONY GREENSTEIN (Representative) Brighton & Hove TUC Unemployed Workers Centre 4 Crestway Parade The Crestway Brighton BN1 7BL For the Respondent No appearance or representation by or on behalf of the Appellant SUMMARY Practice and Procedure – Amendment / 2002 Act and Pre-action Requirements Where a claim form is issued prematurely by reason of failure to comply with Section 32(2) of the Employment Act 2002 an Employment Tribunal has jurisdiction to permit the claim form to be amended when the relevant time limit had expired provided it contains one or more causes of action that are not caught by Section 32(2) .Where the only cause of action is one caught by Section 32(2), amendment when the relevant time limit has expired is not permissible by reason of the decision in London Borough of Hounslow v Miller (UKEAT/0645/06) HIS HONOUR JUDGE SEROTA QC This is the Full Hearing of an appeal from a decision of the Employment Tribunal at Southampton. The claimant's claims in relation to age discrimination under the Part-Time Working Regulations unpaid holiday pay were rejected as premature because 28 days had not elapsed from presentation of a grievance before their commencement. The Employment Tribunal declined after the 28 days had elapsed to permit amendment of the originating applications. His Honour Judge McMullen QC on 12 March 2007 referred the appeal for a full hearing save in relation to certain paragraphs with which I am not concerned. The Respondent has written to the Employment Appeal Tribunal to say it did not oppose the appeal and did not propose to participate.[2]For reasons which will appear later in this decision, I consider this appeal to be largely academic because the Claimant presented another originating application in respect of the claims that had been disallowed within the appropriate time limit. This appeal will accordingly make no difference to the Claimant's substantive rights. However, as the matter has been referred to a Full Hearing I am obliged to consider it.[3]The factual background is as follows. The Claimant had worked for some 20 years as an assistant at a newsagents at Hollingbury Place, Brighton, owned by a Mr Rajah. She worked part-time. On 27 September 2006 Mr Rajah disposed of the business to the Respondent. Shortly thereafter the Claimant was dismissed. In her originating application presented on 5 December 2006 the Claimant maintains that she was dismissed because of her age although the reason purportedly given was that the Respondent wished to have full-time employees only. The Claimant appears to have submitted a grievance on the day she presented her originating application (5 December 2006).[4]The Claimant made claims for unfair dismissal and discrimination. The discrimination alleged, however, relates entirely to the dismissal which the Claimant asserted was by reason of her age. She also made a claim in respect of holiday pay.[5]Her claim was presented by Mr Greenstein of Brighton & Hove TUC Unemployed Workers Centre. On 7 December 2006 the Employment Tribunal wrote to Mr Greenstein to inform him that a Chairman, Mr N P Kolanko, had decided that the claims in respect of age discrimination, part-time working regulations and unpaid holiday pay were claims to which the statutory grievance procedure applied. As those complaints were presented prematurely because 28 days had not elapsed between the presentation of the grievance and the presentation of the originating application those claims could not be accepted. The claims for breach of contract and unfair dismissal were however received and have proceeded in the ordinary way.[6]On 3 January 2007 Mr Greenstein wrote to the Employment Tribunal to ask that the claims could be resubmitted as the 28 day period had now elapsed, without the need to present a further originating application.[7]On 11 January 2007 the Employment Tribunal declined to proceed with those claims and declined to allow an amendment to the claims that had been accepted.[8]Mr Greenstein took up the matter with the Regional Chairman, Mr Peters. In a letter of 30 January 2007 he drew attention to a decision (in Prakash v Wolverhampton City Council (UKEAT/0140/06/MAA) (coincidentally I presided over the EAT on that occasion). The Regional Chairman was unmoved hence this appeal.[9]Before I turn to deal with the issue relating to amendment I need to mention that the claim in respect of the Part-Time Working Regulations is not pursued. Insofar as the claim of disability discrimination is concerned, I have already given an extempore judgment in which I held that the claim is not a "freestanding" claim but relates to the unfair dismissal. Accordingly no grievance letter was required to be presented; see the decision of Elias J in Lawrence v HM Prison Service (UKEAT/0630/06/CEA). There is no obligation to present a grievance in respect of unfair dismissal; see Employment Act 2002 (Dispute Resolution) Regulations 2004 Regulation 6(5). Following the reasoning of Elias J in Lawrence v HM Prison Service it is unnecessary for a grievance to be served where the claim is for unfair dismissal, albeit on a discriminatory ground. I am sure that had the Chairman had the decision of Elias J available he would have accepted the claim for discrimination on grounds of age because it was in essence a claim for unfair dismissal.[10]The position relating to holiday pay was quite different and I could see no way round the requirement that a grievance needed to be issued 28 days prior to the presentation of the originating application.[11]I am, therefore, simply concerned with the issue of whether the Employment Tribunal had jurisdiction to allow an amendment of the originating application that had been accepted, in so far as it related to unfair dismissal and breach of contract, so as to add the claim for holiday pay once the 28 day period had elapsed.[12]Section 32(2) of the Employment Act 2002 provides that an employee shall not present a complaint to an Employment Tribunal if it concerns a matter in relation to which the requirement in paragraph 6 or 9 of Schedule 2 applies and the requirement has not been complied with. The grievance procedures which are set out in Schedule 2 require the employee to set out a grievance in writing. I also note that Section 32(1) together with Schedule 4 to the Employment Act 2002 specify various jurisdictions to which Section 32 applies. It is not controversial that jurisdiction relating to holiday pay is included and indeed discrimination on the grounds of age also.[13]I now need to consider the relevant statutory background and the decision of Elias J in London Borough of Hounslow v Miller (UKEAT/0645/06/DA) of 20 March 2007. This was a case in which an employee had lodged a complaint of disciplinary discrimination prior to compliance with the grievance procedures. I understand that Employment Tribunals up and down the country found themselves confronted with the problem of premature applications. The Chairman in that case adopted a practice of staying the claim pending compliance with the grievance procedures. Elias J set out the relevant statutory provisions which were as follows: The Employment Act 2002, section 32, so far as material, states:- "(2) An employee shall not present a complaint to an employment tribunal under a jurisdiction to which this section applies if – it concerns a matter in relation to which the requirement in paragraph 6 or 9 of Schedule 2 applies, and the requirement has not been complied with (3) 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 paragraphs 6 or 9 of Schedule 2 has been complied with, and(b) less than 28 days have passed since the day on which the requirement was complied with. 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 has been complied with, and (b) the day on which the requirement was complied with was more than one month after the end of the original time limit for making a complaint. … (6) An employment tribunal shall be prevented from considering a complaint presented in breach of sub-sections (2) to (4), but only if (a) the breach is apparent to the tribunal from the information supplied to it by the employee in connection with the bringing of the proceedings, or (b) the tribunal is satisfied of the breach as a result of his employer raising the issue of compliance with those provisions in accordance with regulations under section 7 of the Employment Tribunals Act 1996 … (Employment Tribunal Procedure Regulations)." Rule 1 of the Employment Tribunals Rules of Procedure 2004 (headed "Starting a claim") includes this provision:
"(8) When section 32 of the Employment Act applies to a claim or part of one and a chairman considers in accordance with subsection 6 of section 32 that there has been a breach of subsections 2 to 4 of that section, neither a chairman nor a tribunal shall consider the substance of the claim (or the relevant part of it) until such time as those subsections have been complied with in relation to the claim or the relevant part of it."
Elias J continued:
"24. In my view, once the issue of procedural compliance has arisen in a way envisaged by s.32(6), then the Tribunal simply has no jurisdiction to hear a claim unless it is presented after compliance with the procedural steps. It may be unduly formalistic to require a fresh presentation of another claim, but it seems to me that that is what Parliament has required. Plainly, as the Chairman recognised, rule 1(8) cannot trump the statutory provisions, and in any event, the construction given by the Chairman to this rule does seem to me to give an artificial meaning to the word "complied" in that rule. 25. In my judgment, "compliance" must mean compliance with the provisions in s.32, and I accept Mr Cohen's submission that this requires the filing of the grievance letter and then a subsequent submission of the ET1. This construction is reinforced by rules 3(2)(c) and 3(6). The former states that a Secretary "shall not accept" the claim if it is clear that it has been presented in breach of s.32; and the latter obliges the Secretary in those circumstances to notify the claimant of the time limit applicable to the claim or part rejected and of the consequences of non-compliance. These rules do not, in my view, sit happily with the construction adopted by the Chairman. They do not provide that the claim may be stayed pending compliance with the grievance procedures. 26. I accept that on the contrary analysis rule 1(8) is strictly unnecessary, but it has the merit of alerting those reading the rules to the limitation on the Tribunal's power. It is intended to reflect the substance of the statutory provisions and not in any way to regulate their effect. It would not in my view be absurd to have a rule of this nature; it highlights a point which readers of the rules should be aware. 27. I should add that were the effect of the stay to alter the impact of s.32(4), as the Chairman suggested that it could, and to permit claims to be considered which are outwith the time limit specified in that provision, then this would be an additional reason for rejecting the Chairman's analysis. The effect would be to permit rule 1(8), when combined with the procedural rule to grant a stay, to be relied upon so as to evade completely the limitations in that sub-section. I do not think that can be a legitimate use of the procedural rules."
Elias J made clear that he reached his conclusion with some reluctance because he could see the sense in policy terms of adopting the approach of the Chairman.[14]Mr Greenstein sought to rely upon the decision in Prakash v Wolverhampton City Council (UKEAT/0140/06/MAA) of 6 September 2006. The facts of that case were unusual. The Claimant was employed on a fixed term contract. During the pendency of the contract he was dismissed without notice for misconduct. He presented an application to the Employment Tribunal for unfair dismissal. He also made use of the Respondent's internal disciplinary procedure to appeal. The appeal was heard some considerable time after his contract of employment would have terminated but for its premature termination on the Claimant's dismissal. His dismissal was overturned on appeal. Accordingly as a matter of law his contract was retrospectively reinstated and was deemed to have terminated on its fixed date. The Respondent took the point that in the circumstances the Claimant's application was premature and invalid. The relevant statutory provision was Section 111(1) and (2) of the Employment Rights Act 1996 which provide as follows:
"111 Complaints to employment tribunal (1) A complaint may be presented to an employment tribunal against an employer by any person that he was unfairly dismissed by the employer. (2) Subject to subsection (3), an employment tribunal shall not consider a complaint under this section unless it is presented to the tribunal— (a) before the end of the period of three months beginning with the effective date of termination, (b) within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period of three months."
In that case the Respondent submitted that unless the claim form was issued prior to dismissal the Employment Tribunal had no jurisdiction to entertain the application. The Employment Appeal Tribunal considered that the Employment Tribunal had jurisdiction to entertain an amendment. I had this to say:
"61. The Respondent's case involves holding that an amendment can be allowed to add or substitute a cause of action that was not available when the originating application was first presented. There is nothing in the rules that expressly prevents such an amendment being allowed. It would obviously make sense, in a case such as this, to allow an amendment (if considered appropriate) rather than require the Claimant to issue a second originating application. We do not see any basis for the technical rule that used to apply at one time under the Rules of the Supreme Court that one could not permit by amendment the raising of a cause of action that had accrued after the issue of the writ. 62. Statutes that deal with discrimination on the grounds of disability, sex, race and so on are phrased differently but claims under these statutes are frequently amended so as to add different causes of action. We see no reason in principle why a cause of action that has accrued, so as to speak, after the presentation of the original claim form, should not be added by amendment if appropriate. The claim form can still serve as a vehicle for the amendment even if the original cause of action is bad. Some support for this proposition can be found in the passage that we have cited from Chaudhary . 63. We see no reason why the term "present" should be given any technical meaning. In our opinion, a claim can be "presented" as well by amendment as by the issue of a separate originating application. If this were not so, in very many cases amendments adding new causes of action would require to be initiated by the presentation of a fresh originating application rather than by amendment. In our opinion, such is neither current practice nor in accordance with common sense nor the law as we understand it."
We held that the decision whether or not to allow an amendment should be determined in accordance with the well-known decision of the Employment Appeal Tribunal in Selkent Bus Company v Moore [1996] IRLR 661 .[15]Mr Greenstein submitted that there was jurisdiction to permit amendment of the claim form in the present case and that if necessary I should conclude that the decision of Elias J was obiter or wrong and I should not follow it.[16]Elias J did not have the decision in Prakash before him in Miller, as Mr Greenstein pointed out.[17]I consider that I should follow the decision of Elias J in Miller . Although the Employment Appeal Tribunal is not strictly bound by its own precedents it is certainly the practice of the Employment Appeal Tribunal that earlier decisions on point should be followed unless in a subsequent case the Employment Appeal Tribunal should hold that they are clearly wrong. In the present case, the decision of Elias J was in my opinion plainly right having regard to the statutory background and requirement that the grievance procedures be followed before commencement of proceedings. It would defeat the purposes of the grievance procedures if premature proceedings could be stayed, and even if there were jurisdiction to stay the proceedings it would be an abuse of discretion to do so.[18]Mr Greenstein drew attention to Schedule 1 Rule 3(6) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 :
" (6) Where a claim or part of one has been presented to the tribunal in breach of subsections (2) to (4) of section 32 of the Employment Act, the Secretary shall notify the claimant of the time limit which applies to the claim or the part of it concerned and shall inform the claimant of the consequences of not complying with section 32 of that Act. (7) Except for the purposes of paragraph (6) and (8) or any appeal to the Employment Appeal Tribunal, where a chairman has decided that a claim or part of one should not be accepted such a claim (or the relevant part of it) is to be treated as if it had not been received by the Secretary on that occasion."
[19]He also referred to Regulation 15 of the Employment Act 2002 (Dispute Resolution) Regulations 2004 which provides for a three month extension of time for presentation of an application to which the regulations relate in a case such as the present where the application has been presented prematurely:
"15. - (1) Where a complaint is presented to an employment tribunal under a jurisdiction listed in Schedule 3 or 4 and - (a) either of the dismissal and disciplinary procedures is the applicable statutory procedure and the circumstances specified in paragraph (2) apply; or (b) either of the grievance procedures is the applicable statutory procedure and the circumstances specified in paragraph (3) apply; the normal time limit for presenting the complaint is extended for a period of three months beginning with the day after the day on which it would otherwise have expired. ….. the normal time limit for presenting the complaint is extended for a period of three months beginning with the day after the day on which it would otherwise have expired (3) The circumstances referred to in paragraph (1)(b) are that the employee presents a complaint to the tribunal - (a) within the normal time limit for presenting the complaint but in circumstances in which section 32(2) or (3) of the 2002 Act does not permit him to do so; ………. "
[20]I do not consider it necessary to try and draw any clear guidance from the effect of these Regulations other than to note that they do not, in my opinion, in any way preclude amendment at the appropriate time (i.e. after the relevant requirement has been complied with) of an existing and valid claim that has been accepted by an Employment Tribunal.. In the present case I see no reason why an amendment cannot be made. The Employment Tribunal accepted as properly presented, the claims for unfair dismissal and breach of contract. There is, accordingly, a valid originating application or claim form which can properly serve as a vehicle for amendment. For the reasons I gave in Prakash it seems much more sensible for that existing claim form to be amended rather than have a fresh claim form presented. To allow the amendment would not undermine the statutory purpose of requiring prior compliance. Indeed it would seem to be in accordance with rule 1(8) of The Employment Tribunal's Rules of Procedure 2004. Furthermore I note that the respondent has not opposed the appeal and has not sought to suggest it would be prejudiced by any amendment.[21]I can see no discretionary reason in the circumstances for refusing an amendment. It could cause no possible prejudice to the Respondent or anyone else: and I would accordingly allow the appeal and hold that the Employment Tribunal should have allowed an amendment of the existing claim form to add a claim for holiday pay.