MRS J HALDANE v HIGHLAND COUNCIL [2009] UKEAT 0060_08_2105

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2009] UKEAT 0060_08_2105Case No Appeal No. UKEATS/0060/08Venue 52 MELVILLE STREET, EDINBURGH, EH3 7HF
Between
MRS J HALDANEAPPELLANTHIGHLAND COUNCILRESPONDENT
Before
Lady SmithDate 21 May 2009
[1]APPEARANCES For the Appellant MR D O'CARROLL (Advocate) Instructed by: Messrs Allan McDougall & Co Solicitors 3 Coates Crescent Edinburgh EH3 7AL For the Respondent MR K TUDHOPE (Solicitor) Messrs Ledingham Chalmers LLP Kintail House Beechwood Business Park Inverness IV2 3BW SUMMARY Application to amend claim to add a claim of victimisation. Refused by Employment Tribunal. Appeal against refusal on perversity grounds. Appeal refused. THE HONOURABLE LADY SMITH INTRODUCTION This is an appeal against a judgment of the Employment Tribunal sitting at Inverness, Chairman Miss F C C Carmichael, registered on 31 October 2007, refusing the claimant's application to amend her complaint to include a complaint of victimisation and dismissing her claim.[2]I will continue to refer to the parties as Claimant and Respondents.[3]The claimant was represented by Mr Bathgate, solicitor before the Tribunal and by Mr D O'Carroll, Advocate, before me. The Respondents were represented by Mr K Tudhope, solicitor, before the Tribunal and before me. BACKGROUND[4]This case has a long history which can be summarised as follows: 11 November 2003 – the claimant presented an application to the Employment Tribunal in which she complained of sex discrimination by an employee of the Respondents. The Respondents were subsequently sisted as additional Respondents and denied the claim. 22 March 2004 – the claimant wrote to the Employment Tribunal asking "Could I …add on a case of victimisation by Highland Council and its employees –…?" She gave the names of three employees who she wished to be named as additional Respondents. She alleged that they had a plan of action to get other staff to victimise her and force her out of the department. 18 June 2004 – at a Hearing on Directions, Mr R G Christie, Tribunal Chairman, was advised that internal procedures were ongoing which might have the effect of determining the whole issues and that the internal hearing would take place within the next four to six weeks. Regarding the claimant's application for the addition of a complaint of victimisation, he recorded in his note(a) that he did not feel that it was appropriate to express a judicial view on the admissibility of the amendment whilst those procedures were ongoing but(b) to allow for the possibility of matters not being resolved between parties, provisional Hearing dates for October 2004 would be fixed. November 2004 – a three day hearing that had been fixed for that month was postponed at the instance of the claimant. The claim was sisted. The claim remained sisted throughout the remainder of 2004, 2005 and into 2006 with the Tribunal office asking for updates on progress from time to time. No action was taken by the claimant to progress her outstanding application to amend during that period. 12 April 2006 – the Respondents' solicitor wrote to the Employment Tribunal. He advised that he was proceeding on the basis that the claimant's victimisation claim was not part of her case, no decision having been taken on her application to amend. He asked that the Tribunal let him know if he was mistaken about that and added an explanation as to why any application to amend would be opposed. 9 May 2006 – the claimant's solicitor wrote to the Tribunal apologising for his failure to respond earlier to letters that had been written to him. He advised that the claimant was insisting on her application to amend and suggested that there be a case management discussion. 5 June 2006 – a case management discussion took place at Aberdeen, via telephone, Chairman Mr N Hosie. A hearing on the merits of the claimant's sex discrimination claim was fixed for 1 and 2 August 2006. Regarding the claimant's victimisation claim, the Chairman's note records:
"Mr Bathgate helpfully conceded that having regard to the history of the case it would not be appropriate to delay matters further by dealing with the amendment request at this stage and if allowed, hearing evidence about the merits of the claim as this was likely to take some considerable time. Accordingly, it was agreed that this matter would simply be left in abeyance and Mr Bathgate will reconsider his position in the light of the Tribunal's judgment following the Hearing on 1 and 2 August 2006." 26 July 2006 – the claimant's solicitor advised that the claimant's claim of sex discrimination had been settled. The claimant wished, however, to insist on her amendment. There is no indication in that letter that he considered that moving the amendment required to be postponed until the respondents' internal grievance procedure had been completed. Nor, indeed, had any such suggestion been made at the CMD before Mr Hosie; the only reason for not proceeding to have the application to amend considered at that time was that, if allowed, the Hearing would be considerably lengthened. On the contrary, the terms of the letter specifically envisage the possibility of the decision on the amendment being taken before the grievance procedure is finished. September 2006 – parties lodged written submissions with the Employment Tribunal, determination on such submissions having been requested. The grievance procedure was still not complete. The claimant's solicitor stated, at the end of his written submission: "
The primary submission for the Claimant is that until the internal process is complete, the Amendment should be left in abeyance, however, if the tribunal is not with it on that submission then the Amendment ought to be allowed in the interests of justice." 30 May 2007 – nothing further having happened regarding the amendment, the Respondents' solicitor had telephoned the Tribunal office to enquire. It transpired that the Tribunal Chairman had thought that the claimant wished to wait until the outcome of her grievance procedure before a decision was taken on the application to amend and so it had not been determined. The Tribunal then, on the view that that was not so and the application did require to be decided, wrote to the claimant's solicitor asking that the factual and legal basis for the application be set out. 22 June 2007 – the claimant's solicitor wrote explaining that the claimant sought to add a claim under s.41(1)(a) of the Sex Discrimination Act 1975 and would wish to add three named individual respondents in addition to these respondents. He did not invite the Tribunal to defer its decision until after the grievance procedure was completed. Rather, arguments were advanced in support of allowing the amendment. Various assertions were made in outline in the letter. The statements of the claimant's case in the letter included assertions such as that the three individuals acted maliciously and that they conspired to lie. 2 July 2007 – the respondents' solicitor wrote objecting to the application to amend. He argued that the case the claimant sought to introduce was considerably lacking in detail, detail that was particularly called for in the light of the serious nature of the allegations which were made in highly charged language. 31 July 2007 – a pre hearing review fixed for that date to determine whether or not the claimant should be allowed to amend was postponed. 3 September 2007 – a pre-hearing review fixed for that date was also postponed. 3 October 2007 – the pre-hearing review took place. The grievance procedure was still not complete. The claimant's solicitor moved the Tribunal to allow the amendment. He did not ask that its determination be postponed until after the grievance procedure had been completed. The claimant's position was, rather, that if the amendment was allowed she did not wish the Tribunal Hearing to take place before that procedure had come to an end. At one point in his submissions, the claimant's solicitor is recorded as having said:
"The original claim was sisted from June 2004 to June 2006. Once it was settled, the focus turned to the victimisation claim for attention."
Thereafter, the Tribunal Chairman requested information regarding the likelihood of the claimant being able to attend a Tribunal hearing in the near future, it having come to her notice that the claimant had been absent from work due to ill health for some time. She asked specifically for the prognosis as to the claimant's fitness to return to work and when she would be likely to do so. 22 October 2007 – the claimant's solicitor responded to the above request. He did not furnish the Tribunal with a medical certificate. He advised that the claimant said that she did not yet feel well enough to return to work. Depending on the progress of counselling that she was receiving and her general health, she 'may' anticipate returning to work 'in the New Year.' She would anticipate being fit to participate in a Tribunal hearing 'in the course of 2008'. The Tribunal's Judgment[5]The Tribunal Chairman considered that there was no adequate explanation of why the issue of amendment was allowed by the claimant to remain unresolved for several years with no apparent desire on her part to have it dealt with. She observed that even if it was somehow felt to be inappropriate to deal with it whilst the sex discrimination claim was outstanding, it could have been dealt with in the course of the settlement negotiations and, indeed, could have been argued on one of the dates set down for the hearing on the merits of that claim.[6]Looking to the future, the Tribunal Chairman noted that she had been given no reason for the claimant's sickness absence, had got the impression from what her solicitor had said at the hearing that she had been absent for a variety of different reasons and overall gained the impression that the claimant had been reluctant to move things along or at least indifferent about it. At paragraph 26, the Tribunal Chairman states:
"There was no explanation of the grounds for her sickness absence, so although she was currently signed off unfit for work (for whatever reason), that alone did not mean she was also unfit to attend a grievance hearing. From Mr Bathgate's indication at the hearing, my understanding was that the Claimant's absences had been for a variety of different reasons. The fact that she referred to the 'New Year' rather than January or some indicative month or date, seemed to me reflect real doubt on her part about progressing the matter. The hedging about with conditions to her response to my questions demonstrated reluctance, or at least an indifference, to moving matters along and trying to bring the issue to a speedy conclusion. It was quite understandable that the Claimant would be dreading an announcement that she might need to relive the alleged incidents complained of, and might fear having to recall them at a public hearing. Nevertheless, it was she who sought to have the claim included, and accordingly, it was incumbent on her to pursue the matter of its inclusion, or to withdraw it."
[7]She estimated that by the time a hearing was fixed it would be 4½ to 5 years after the incidents complained of in the victimisation claim. At paragraph 28, she said:
"The Respondents and those accused of victimisation have had to live under the cloud of these allegations for 4 or nearly 4 years and continue to do so with no assurance of a determination of the case in the near future. Such evidence as was available to me tended to demonstrate that any hardship or injustice to the claimant by reason of delay was of her own making. The letter of 24 October 2007 offered no grounds in support of an inability on her part to have progressed, or presently to be progressing matters."
The Appeal[8]For the claimant, Mr O'Carroll said that the ground of appeal was perversity. He recognised, under reference to Melon v Hector Powe [1980] IRLR 80 that it was a high hurdle but it was not, he said, unheard of, as demonstrated by the case of United Distillers v Conlin [1992] IRLR 503.[9]For the principles applicable when considering applications to amend, Mr O'Carroll referred to the well-known passages in Selkent Bus Co Ltd v Moore [1996] ICR 836 and, Cocking v Sandhurst Ltd [1974] ICR 650.[10]The principal problem here was, in his submission, that the Tribunal Chairman had indicated in June 2004 that it was inappropriate to consider the application to amend whilst the grievance procedure was ongoing. His point was, essentially, that that meant that none of the delay that ensued thereafter was the fault of the claimant. He submitted that the approach on her behalf thereafter had been that the determination of the application to amend should await the outcome of the grievance procedure. The Tribunal Chairman had failed to recognise this factor and that showed that her decision was perverse.[11]Separately, he sought to persuade(a) that she should not have taken account of when any hearing on the victimisation claim would take place, and(b) that she should not have had regard to the possibility of the claimant dreading giving evidence.[12]Overall, the Tribunal had completely misunderstood the facts, the decision should be set aside and this Tribunal should allow the amendment.[13]For the Respondents, Mr Tudhope submitted that the appeal should be refused. There required to be an overwhelming case before a perversity appeal could be upheld ( Melon v Hector Powe ; Yeboah v Crofton [2002] IRLR 634 , Stewart v Cleveland Guest Engineering Ltd [1994] IRLR 440 ). No such case was made out.[14]Mr Tudhope also referred to the comments on the relevance of delay when considering the amendment procedure in Ladbrokes Racing Ltd v Traynor EATS/67/08 at paragraph 20. The claimant's submission that the Tribunal was not entitled to consider when a Hearing on the victimisation claim would ultimately take place was ill- founded. It was plainly a relevant matter. Regarding the comments about the claimant possibly dreading giving evidence, they were favourable to the claimant's case. The claimant's submissions missed the point. Delay was all important. With the passage of time recollections become dimmed and evidence could be lost. Further, this was a case where serious allegations were hanging over not just the respondents but three named individuals.[15]It was, he submitted, quite wrong to suggest that the Tribunal Chairman's comments in June 2004 set a marker for the whole case. They had to be read in context. It was also relevant to note that it was not at all clear exactly what amendment was being moved. Mr Bathgate's letter of 22 June 2007, whilst vague and unspecific, plainly sought to expand the victimisation claim beyond what was set out in the claimant's letter of 22 March 2004.[16]In all the circumstances, the Tribunal was well entitled to take the view that the claimant had a responsibility to progress her claim and that she had failed to do so. Relevant Law[17]Decisions as to whether or not to allow a claimant to amend a claim are discretionary ones. It is, accordingly, only where it can be shown that the Tribunal took account of an irrelevant factor, failed to take account of a relevant factor or reached a decision that no reasonable Tribunal would have reached in the circumstances of the case that it can be interfered with on appeal. The test is manifestly not that of whether or not this Tribunal would have allowed the claimant leave to amend. As was commented by Mummery J in Selkent Bus Company Ltd v Moore , at paragraph 3:
"On an appeal from such a refusal, the appellant would have a heavy burden to discharge. He would have to convince the appeal tribunal that the Industrial Tribunal had erred in legal principle in the exercise of the discretion or had failed to take into account relevant considerations or had taken irrelevant factors into account, or that no reasonable tribunal, properly directing itself could have refused the amendment: see Adams v West Sussex County Council 1990 ICR 546."
[18]The case of Selkent is often referred to when an issue arises as to whether or not an amendment should be allowed because at paragraph 5, Mummery J set out a list of factors that would be relevant when considering whether or not to amend, namely the nature of the amendment, the applicability of time limits and the timing and the manner of the application. It is, however, also important to note that that list was prefaced, not surprisingly, with the warning regarding the relevant factors:
"It is impossible and undesirable to attempt to list them exhaustively…"
[19]Observations by Sir John Donaldson as to the appropriate way to approach issues of amendment had been made in the earlier case of Cocking v Sandhurst Ltd , namely to have regard to all the circumstances of the case and to consider whether allowing it or refusing it will cause hardship or injustice to either party. They were reflected in the more recent guidance given in Selkent .[20]One of the grounds of opposition to the claimant's amendment was that it was lacking in detail to the extent that the respondents were prejudiced. The relevant principle is that of fair notice which involves the giving of clear and cogent intimation of the claimant's case including sufficient detail to enable the respondent to know what allegation he has to meet. Lord Justice Waller discussed the matter in Ali v Office of National Statistics [2005] IRLR 201 – "39…a general claim cries out for particulars and those are particulars to which the employer is entitled so that he knows the claim he has to meet. An originating application which appears to contain full particulars would be deceptive if an employer cannot rely on what it states." Decision[21]I am not persuaded that the Tribunal reached a perverse decision. In particular, I am not persuaded that the Tribunal was not entitled to take account of the fact that any hearing on the victimisation case would not take place before a point in time that would be some 4½ to 5 years after the events complained of. Nor am I persuaded that the Tribunal erred in allowing for the possibility that the claimant was dreading hearing that she would have to give evidence; contrary to the Claimant's submission, the reference to that possibility operated in her favour. The Tribunal was obviously allowing for the possibility of there being some understandable explanation for the claimant being reluctant to progress her claim in carrying out the necessary balancing exercise. The explanation is given, however, that understandable though it is that the claimant might be anxious about having to give evidence, in all the circumstances, the assessment of the Tribunal was that even allowing for that anxiety, all the material before it pointed to one conclusion namely that the claimant was failing to fulfil her responsibility to progress her case.[22]I do not accept that the indication given by the Tribunal Chairman in June 2004 can be founded on as having set the tone for the whole progress of the case thereafter. Quite apart from anything else, as Mr Tudhope submitted, his reluctance to deal with the amendment at that stage has to be read in context. That context was that there was a possibility of issues resolving, of the internal procedures being completed in 4-6 weeks and of the Tribunal expecting to have the case back before it in October 2004 if issues were not resolved. Moreover, the argument falls away as soon as it is recognised that(a) Mr Bathgate told the Tribunal that attention was not given to the victimisation claim in the period 2004–2006 because the sex discrimination claim was being dealt with (not because the grievance procedure was ongoing),(b) the reason given on 5 June 2006, at the CMD, for postponing the application to amend was not that it should await the outcome of the grievance procedure but that if it were to be added to the claim it would be liable to delay the Hearing that had been fixed for 1 and 2 August,(c) he said in terms in his letter of 22 June 2007 that the claimant sought to add her victimisation claim, and(d) despite the fact that the grievance procedure was still outstanding at the time of the pre-hearing review, he moved the amendment.[23]Separately, it is not at all clear what the claimant was moving as her amendment at the Pre Hearing Review. Was it what was in her letter of 22 March 2004 or was it what was contained in Mr Bathgate's letter of 22 June 2007 which, as I have already explained, sought to expand on the case advanced earlier? Further, there is much to be said for the Respondents' argument that the proposed amendment was, in any event, not sufficiently specific. Whilst I recognise that the Tribunal did not specifically rely on these factors, they cannot be ignored where this Tribunal is being asked to find that the decision to allow the amendment was perverse, namely, a decision that no reasonable Tribunal would have reached. They point to the likelihood being that any reasonable Tribunal would have refused the application to amend, not allowed it, contrary to what was submitted on behalf of the claimant. Disposal[24]In these circumstances, I will pronounce an order dismissing the appeal.