Margarot Forrest Care Management v Kennedy (Practice and Procedure : Amendment) [2010] UKEAT 0023_10_2611

EAT
Margarot Forrest Care Management v Kennedy (Practice and Procedure : Amendment)
[2010] UKEAT 0023_10_2611 · 2010-11-26
[1]This appeal concerns the amendment of an employee’s claim form. Her former employers appeal against the refusal of the Employment Tribunal to review its decision to allow the amendment. The original claim form, which was dated 13 March 2009 and was presented on 16 March 2009, alleged wrongful dismissal in respect that:
“..my employer failed to follow the proper dismissal/disciplinary procedures prior to my dismissal. I therefore feel a “breach of contract” has occurred. I also feel my employer comprised (sic) my health and safety under health and safety regs. By not ensuring that the vehicle I was asked to drive was in a roadworthy condition.”
[2]Accordingly, the Claimant did not, in her ET1, state that she had made any allegation or disclosure about a breach of health and safety regulations to her employer or to anyone else. Nor, perhaps more importantly, did she allege in her ET1 that she had suffered any detriment as a result of having made such a disclosure. She did not suggest in her form ET1 that her dismissal had anything to do with her having said anything to anyone about her employer having breached health and safety regulations.[3]The relevant decisions of the Employment Tribunal (sitting at Glasgow, Employment Judge J Cape) are, first, an order registered on 5 August 2009 (following a hearing on 29 July 2009) in the following terms:
“The claim form is amended to include the following as grounds upon which the claimant will rely in her claim that she was unfairly dismissed by the respondent :- “ The claimant was involved in a car accident whilst driving a company motor vehicle during the course of her employment. She intimated a personal injury claim through her solicitor to the respondent. The said personal injury claim was based on the claimant’s contention that the brakes had failed and that the vehicle was not in a roadworthy condition. The claimant was called into a meeting on 7 January 2009 by Mr Forrest, a Director of the company, who told the claimant that if she did not drop her personal injury claim, that day would be her last day of work. He asked the claimant if she was definitely going to pursue the personal injury claim. She said that she was going to pursue the personal injury claim as the brakes of the motor vehicle had failed. He told the claimant that she gave him no choice but to pay her off. This is a complaint of unfair dismissal pursuant to Section 103A of the Employment Rights Act 1996 (“ERA”) . The claimant will assert that she was dismissed for making a disclosure that “a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject” (Section 43(b)(1)(b) of ERA) or that “the Health and Safety of any individual has been, is being or is likely to be endangered” (Section 43(b)(1)(d) of ERA).”
[4]Although the Tribunal refer to the above as an order, it in fact constituted a judgment (see: Ladbrokes Racing Ltd v Traynor UKEATS/0076/06/MT at para 22) and should, accordingly, have been a reasoned decision. No reasons were attached to it. The Tribunal refer, in the reasons attached to their second decision (referred to below) to having given reasons orally at the time but do not state what was said.[5]The Respondent was given 14 days to respond to the amendment effected by the Tribunal.[6]The Respondent sought a review of the order and by order registered on 7 April 2010 (following a hearing on 18 March 2010), that application was refused.[7]We will continue referring to parties as Claimant and Respondent. Background[8]The Respondent provides a nursing and care home service. The Claimant was formerly employed by them and was, according to their form ET3, dismissed by them on 7 January 2009 after less than 12 months continuous service.[9]The Claimant’s case called for a full hearing more than seven months after her dismissal, on 29 July 2009. The Claimant was represented by her mother, Mrs Kennedy. In their judgment and reasons following the review hearing, the Tribunal state that, at the start of the hearing, they sought to identify the issues. It was noted that the Claimant had less than one year’s service and so could not proceed with “a complaint of ordinary unfair dismissal” (paragraph 41). The Claimant’s mother referred to an opening statement which she had prepared. The part of that statement which appears to be relevant for the purposes of the appeal is as follows:
“As stated, Samantha had no prior knowledge or indication of the nature of this meeting which had been called without any notice. During this meeting, Samantha felt intimidated and threatened by Mr Forrest and it became clear that this was an issue he had taken regarding a claim that had been lodged following a car accident on 5 th August 2008. Mr Forrest made it clear that if Samantha did not drop the claim he would sack her. A letter dated the same day as the meeting 7 th January 2009, sent by Mr Forrest confirms the content of the meeting regarding a claim that had been made.”
[10]At paragraph 43 of their reasons of 7 April 2010, the Tribunal state:
“43. The Tribunal noted that this mirrored significantly the wording as to the nature of the complaint set out in an application dated 6 July 2009 which the claimant had submitted for a Witness Attendance Order. Inter alia she had, in that application, stated: “ The case that I will be presenting to the Hearing is based around this meeting and the events that took place [meeting on 7 January 2009] with Mr Forrest. The general basis of this meeting [is that the claimant ] had raised a claim with her employer following a car accident, she was told by Mr Forrest to drop this claim, or she would not have a job. I will be presenting a statement of the content of this meeting and the wrongful dismissal that followed, that lead to this claim being raised with the Employment Tribunal. I would therefore request that [the witness] is summoned as a witness to the Hearing so that she may give evidence as to the content of the meeting and the actions of Mr Forrest.””
[11]The Tribunal then explain that they “directed the Claimant’s mother to state the nature of the unfair dismissal complaint again orally so that that could be noted”. The Employment

Judge noted what she said in response as being:

“44……….. “She was in a car accident, put a claim in on the respondents’ vehicle insurance policy, he called her in ( Mr Forrest) and said if she did not drop the claim it was her last day at work. He said are you definitely going to make a claim. She told him she was going to make a claim as the brakes had gone. He said “You give me no choice but to pay you off.””
[12]We observe, in passing, that put that way, the Claimant’s assertion did not amount to a case that she had been dismissed for having made a protected disclosure. It is not apparent how the mere reference to brakes having failed could amount to a qualifying disclosure (see: section 43B of the Employment Rights Act 1996; Cavendish Munro Professional Risks Management Ltd v Geduld UKEAT/0195/09) but even if it did, the disclosure that appears to be relied on is a disclosure that was made to an insurance company not to a person falling within one of relevant categories (see: sections 43C and 43D of the 1996 Act). We would also observe that that statement does not, in our view, “mirror” what was set out in the letter applying for witness orders.[13]Further, the Tribunal refer to the Claimant having submitted a grievance on 4 February, following her dismissal in which she said she had been called in at short notice with no warning to discuss the matter of a claim for compensation she had submitted which ended in her being disciplined and dismissed.[14]The Tribunal explain that:
“46. The claimant’s mother was advised that she would require to make an application to amend if she wished the Tribunal to deal with that as an issue and she said that she did wish to make an application to amend.”
[15]The Tribunal then asked the Respondent’s representative whether what it refers to as “the proposed amendment”, namely, the unfair dismissal claim as articulated by the Claimant’s mother, was objected to. Objection to the amendment was made by the Respondent’s representative. He objected on two grounds. One was the lateness of the amendment; it was being made outwith the relevant time limits for a claim of unfair dismissal. The other was that an adjournment would be required. He could not deal with the matter without investigation.[16]The Tribunal advise that they adjourned for 20 minutes and then allowed an amendment not in the terms articulated by the Claimant’s mother but in the terms which we have set out above. The wording of the amendment was drafted by the Tribunal; it was not drafted by the Claimant’s mother. We infer from the terms of the amendment which include expressions which are unlikely to flow readily from the lips or pen of a lay person, such as “motor vehicle”, “intimated”, “personal injury claim”, and “The claimant will assert that she was dismissed for making a disclosure” and from the specification of various statutory references, that it was drafted by the Employment Judge.[17]So far as the references to section 43(1)(b) and (d) and 103A of the Employment Rights Act 1996 are concerned, the Employment Tribunal stated, at paragraph 53:
“The Tribunal further identified that this was arguably dismissal for making a protected disclosure (in the claim submitted by the claimant’s lawyer to the respondent), the disclosure being that the brakes had failed and the vehicle was not in a roadworthy condition. These were potentially disclosures that “a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject” (section 43(1)(b) of Employment Rights Act 1996) or that “ the Health and Safety of any individual has been, is being or is likely to be endangered” ( Section 43(1)(d) of Employment Rights Act 1996).”
It considered that it was within its discretion to specify that in the amendment, the claimant having indicated that her complaint was about facts and matters which met those criteria.”[18]The Tribunal do not explain what they consider to be the source of the discretion that they consider they had, to write the amendment for the Claimant.[19]The Tribunal did not give the Respondent’s representative the opportunity to make representations in respect of the new wording of the amendment which they had determined on. Thus, whilst they state, at paragraph 56 that “The respondent had an opportunity to oppose leave to amend being allowed, and did so”, that is an incomplete account. The opportunity that was given was the earlier opportunity to respond to the wording proposed by the Claimant’s mother not to the Tribunal’s subsequent wording of the amendment. Relevant law[20]An Employment Tribunal has power to grant leave to amend a claim at a hearing (see: Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 rules 10(2)(q) and 27(7)). Thus, if a claimant’s representative seeks permission to alter, add to or subtract from what is written in the claimant’s form ET1, the Tribunal may, in its discretion, allow the representative to do so. The Tribunal does not have power itself to amend a claim.[21]In the case of Ladbrokes Racing Ltd v Traynor UKEATS/0067/06MT, similar circumstances arose in respect that it became apparent to an Employment Tribunal in the course of a hearing that the claimant was seeking to pursue a line, in evidence, that had not been foreshadowed in the form ET1 and the Tribunal allowed the questioning to continue notwithstanding it being objected to. The issues raised on appeal gave rise to consideration of the procedure that an Employment Tribunal ought to follow when, at a hearing, it appears that a party is seeking to present a case that differs from that of which notice has been given in the form ET1:
“30 We are persuaded that this appeal is well founded. The Tribunal seems, unfortunately, to have jumped too far too fast. What, in our view, it required to recognise before making its decision was as follows: 31 Firstly, the Claimant had not, it seems, actually made any application to amend the ET1. The decision recorded in the written reasons is a decision to allow a line of cross examination which was manifestly not foreshadowed in the Claimant’s statement of his case in his ET1. The line which the Claimant sought to pursue was plainly a separate issue in law, as discussed, and involved different facts from any of which notice had been given in the ET1, albeit that it would not take the case outwith the ‘unfair dismissal’ umbrella. That being so, the allowance of the line of cross examination would have been extremely difficult to justify in the absence of amendment. 32 Secondly, the Tribunal thus did need to turn its mind to the matter of amendment but the question is how? We see no difficulty in a Tribunal in such circumstances enquiring of the Claimant or his representative whether he seeks to amend the ET1 in the light of the line of evidence which he appears to seek to explore. 33 Thirdly, if the answer to that enquiry is that the Claimant does seek to amend, then the Tribunal requires to enquire as to the precise terms of the amendment proposed. If it does not do that, then it cannot begin to consider the principles that apply when considering an application to amend, as discussed above. Further, unless it does so, the fair notice obligations referred to in the quotation from Ali , above, will not be complied with. 34 Fourthly, it may be advisable, if not necessary, to allow the Claimant a short adjournment to formulate the wording of the proposed amendment. 35 Fifthly, it is only once the wording of the proposed amendment is known that the Respondent can be expected to be able to respond to it. 36 Sixthly, once the wording of the proposed amendment is known, the Tribunal requires to allow both parties to address it in respect of the application to amend before considering its response. 37 Seventhly, the Tribunal’s response requires to be that of all members and requires to take account of the submissions made and the principles to which we have referred. The Chairman and members may require to retire to consider their decision. 38 Eighthly, the Tribunal requires to give reasons for its decision on an application to amend. Those reasons can be shortly stated and, as we have indicated, we would expect them to be given orally. They must, however, be indicative of the Tribunal having borne in mind all relevant considerations and excluded the irrelevant from its considerations.”
[22]The reference to Ali is a reference to a passage from the judgment of Lord Justice Waller in Ali v Office of National Statistics [2005] IRLR 201 , where the importance of giving fair notice to an employer in the form ET1 of the case that the claimant alleges against him is discussed. He stated:
“39…….. …a general claim cries out for 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.”
[23]The point is made under reference to circumstances where the claim in the ET1 was lacking in specification but it applies with even more force where a claimant seeks to advance a claim that has not been foreshadowed in the ET1 at all. The new claim cannot go forward unless the ET1 is amended and we consider that, in circumstances such as in Ladbrokes and in the present case, proper exercise by the Employment Tribunal of its discretion to grant leave to amend requires the procedure applied to accord with the spirit of the above guidance.[24]A further matter arises in the present case. The amendment issue arose more than seven months after the Claimant’s dismissal. The time limit for the raising of a claim for unfair dismissal had passed. The fact that a claimant seeks, by amendment, to introduce a claim which would have been time barred if presented as a fresh claim is always a highly significant factor that needs to be taken into account when considering the application for leave to amend. As we said at paragraph 20, in Ladbrokes :
“20. When considering an application for leave to amend a claim, an Employment Tribunal requires to balance the injustice and hardship of allowing the amendment against the injustice and hardship of refusing it. That involves it considering at least the nature and terms of the amendment proposed, the applicability of any time limits and the timing and manner of the application. The latter will involve it considering the reason why the application is made at the stage that it is made and why it was not made earlier. It also requires to consider whether, if the amendment is allowed, delay will ensue and whether there are likely to be additional costs whether because of the delay or because of the extent to which the hearing will be lengthened if the new issue is allowed to be raised, particularly if they are unlikely to be recovered by the party who incurs them. Delay may, of course, in an individual case have put a respondent in a position where evidence relevant to the new issue is no longer available or is of a lesser quality than it would have been earlier. These principles are discussed in the well known case of Selkent Bus Co Ltd t/a Stagecoach Selkent v Moore [1996] IRLR 661 .”
[25]We would also refer to Mummery J, as he then was, in Selkent at paragraph 26:
“…an application for amendment made close to a hearing date usually calls for an explanation as to why it is being made then, and was not made earlier, particularly when the new facts alleged must have been within the knowledge of the applicant at the time he was dismissed and at the time when he presented his originating application.”
[26]Finally, given the circumstances of this case, whilst it hardly needs to be stated, it is not for the Employment Tribunal or Employment Judge to act as advocate for one party. It is, accordingly, important to avoid acting in a manner that could be construed as their doing so. The appeal[27]For the Respondent, Mr McCorkell drew attention to the chronology of events and submitted that the Tribunal had erred in law. They had purported to exercise a power that they did not have, namely, the power to write a party’s amendment for them and amend the claim in those terms. They had not followed the Ladbrokes guidance in circumstances where it was plain that they ought to have done so. The Respondent had not had notice of the terms of the amendment that the Tribunal effected and had no opportunity to make submissions in respect of it; at the stage that they were allowed to make submissions they knew of the wording stated by the Claimant’s mother but did not know of the wording of the ultimate amendment produced by the Tribunal. Further, the Tribunal failed to have regard to the time bar that would have applied if the Claimant had, at that stage, sought to present a fresh claim of unfair dismissal. Nor was their judgment Meek compliant. In particular, it was impossible to find how or where they considered they had a discretion to write the Claimant’s amendment for her.[28]Mr McCorkell also referred to the case of Lewisham & Guys Mental Health NHS Trust v Andrews [1999] IRLR 407 as an example of a Tribunal having erred in purporting to exercise a discretion that it did not have. There was no appearance for the Claimant. Discussion and decision[29]We are satisfied that we should uphold the appeal.[30]In this case, a new account of the circumstances of the Claimant’s dismissal appeared very late in the day, at the final hearing. That lateness called for an explanation of how and why it had not formed part of the claim prior thereto. It is no answer that the Claimant had said something to similar effect in her application for a witness order or that her prior grievance might be construed as alluding to it in some way. The Respondent would not have seen the application for a witness order and even if such a construction could be given to the prior grievance, so far as her complaint to the Employment Tribunal was concerned, up until that point, it had been confined to being a common law claim for wrongful dismissal in respect of the breaches of contract referred to in the ET1 (see the quotation from the ET1 above). It is plain that the Tribunal regarded the position as being that there was potential for the introduction of a wholly new claim, namely a statutory claim of automatically unfair dismissal for having made a protected disclosure, that is, a wholly new and different claim with significant implications for the Respondent if introduced. The Respondent had had no notice whatsoever of such a claim at any earlier stage and the late arrival on the scene of the new factual account called for an explanation of which there is no sign of the Tribunal having sought, despite the Respondent’s representative having objected on grounds of the lateness of the application.[31]Turning then to the procedure adopted, whilst it was appropriate for the Tribunal to draw the attention of the Claimant’s mother to the fact that her opening statement appeared to raise a new matter, that it could not form part of her case without amendment, to take from her statement of the complaint that she sought to add, and to invite the Respondent to respond to her application they fell into error in the procedure adopted thereafter. They failed to give any consideration to the question of why it was that the new matter had not been raised earlier notwithstanding that issue being raised by the Respondent’s representative and notwithstanding it being a highly relevant factor, as discussed above. They then relied on what the Claimant had stated in her application for witness orders but that application was not intimated to the Respondent; it had no prior knowledge of what she had said to the Tribunal in that respect. In any event, contrary to what the Tribunal suggest, it did not “mirror” what was set out in the proposed amendment stated by the Claimant’s mother. They relied on what the Claimant had said in her grievance but the Tribunal’s reference to it does not amount to any claim that the Claimant’s dismissal was caused to any extent by her having made a protected disclosure. Further, the fact that a claimant has made an allegation in a prior grievance does not amount to fair notice that they propose to rely on that matter in their subsequent Tribunal claim; the test for that is what they have averred in the form ET1. Thus, the Tribunal failed to take account of a relevant factor and relied on two irrelevant factors. We would add that, as discussed in Cavendish , the fact that an employee has made an allegation does not amount to disclosure of “information” as is required before any relevant case of protected disclosure can be made out.[32]Thereafter, rather than consider whether or not to allow an amendment in the terms proposed by the Claimant’s mother, they proceeded to draft an amendment in different terms, did not afford the Respondent the opportunity to make submissions on the wording that they were proposing and purported to rely on “its discretion” to do so. They do not state the basis for that discretion and we are of the clear view that none exists. Where amendments of claims are concerned, the discretion conferred on an Employment Tribunal is to grant leave to a claimant to allow the claimant to amend the form ET1 in the terms that he or she proposes, if appropriate; it is not a discretion for the Employment Tribunal to give themselves leave to amend the ET1 in whatever terms they think are best. Nor does an Employment Tribunal have a discretion so to amend without allowing the respondent the opportunity to make representations in response to the wording which the amendment will contain if leave is granted. For an Employment Tribunal to act in such a manner runs the risk of them appearing to have stepped outwith the judicial role and acted as advocate for one party. We conclude that such a perception was created by the Tribunal’s actions in respect of the amendment.[33]In all these circumstances, we are satisfied that the Tribunal fell into error. There was no proper basis on which they were entitled to pronounce the order of 5 August 2009 amending the Claimant’s claim and it follows from that that they should have granted the review that was sought and revoked the order.[34]There will require to be a remit and it will be a remit to a freshly constituted Employment Tribunal. In the circumstances, particularly the perception to which we have just referred, it would not be appropriate to remit the case to the same Employment Tribunal. Disposal[35]We will pronounce an order upholding the appeal, revoking the order of the Employment Tribunal dated 5 August 2009 amending the Claimant’s claim and thereafter remitting the complaint to a freshly constituted Employment Tribunal to proceed as accords.