United Kingdom Employment Appeal Tribunal

BAILII case number: [1995] UKEAT 566_95_2209

Appeal No. EAT/566/95

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 22 September 1995

THE HONOURABLE MR JUSTICE TUCKER

MR E HAMMOND OBE

MRS J M MATTHIAS

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MISS D STAFFORD          APPELLANT

PHILIPS SEMICONDUCTORS LTD          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised


 


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APPEARANCES

For the Appellant MR PHILIP MEAD

(Of Counsel)

Messrs Betesh Partnership

4th Floor

Cardinal House

20 St Mary's Parsonage

Manchester

M3 2LY


 


MR JUSTICE TUCKER: This is a Preliminary Hearing ex-parte of an employee's appeal from a decision of the Industrial Tribunal sitting at Manchester on 22 February 1995, whereby they refused the application made on behalf of the employee Miss Diane Stafford for amendment of the Appellant's originating application IT1. That document is dated 6 December 1993. Under Box 1: "Say what type of complaint(s) you want the tribunal to decide" the Appellant had typed the words "Unfair Dismissal". In Box 10 asking for full details of her complaint, there was a reference to sexual harassment beginning in May 1992. That, it was alleged caused her to suffer from depression. She was subsequently transferred to the nightshift doing work for which she was not suited. There were two further references and perhaps more, to unfair dismissal, but none to sexual discrimination.

The grounds of appeal which were originally before us were that the Tribunal erred in law in refusing the Appellant's application to amend the originating application to allege sexual discrimination. That is the fundamental ground. It was developed and elaborated in a number of other respects in the Notice which was settled, as we understand it, by Counsel, who had appeared for the Appellant before the Tribunal. That application to amend was made for the first time and without any prior notice to the Respondents, on the morning of the hearing. That is to say, getting on for three years after the alleged sexual harassment began and fourteen months after the date of the originating application. Counsel was unable to give the Tribunal any explanation as to how or why this came about.

The Tribunal recognised that they had a discretion to allow such an amendment after the expiry of the relevant time limit of three months. They rightly considered whether any injustice or hardship would arise, in particular by reason of the delay which had occurred. They were referred to and took account of the relevant authorities. In paragraph 6 and 7 of their decision they say this:

"6. It is clear, therefore, that the applicant was maintaining a claim for unfair dismissal in at least four separate places within the application to the Tribunal. Although there is a reference to sexual harassment within the application, it is equally clear that no complaint is made of sexual harassment as such. The application appears to have been drafted with some professional assistance, albeit that it was signed by the applicant in person and does not bear the name of any representative. Further, it was clearly sent to the Tribunal by the applicant in person.

7. Whether or not the applicant did have professional assistance, it appears to the Tribunal that she was aware in December 1993, when she made her application that there had been alleged sexual harassment of her and she had a completely free choice as to whether she made a complaint in respect of that matter. It is quite clear that the applicant chose only to complain of unfair dismissal."

That was the original appeal before us. It is clear to us that the Tribunal recognised that they had a discretion. They exercised that discretion on proper grounds. It could not possibly be contended that in the exercise of that discretion, the Tribunal acted perversely. Therefore, on those original grounds, we would have dismissed the appeal and would not have allowed the matter to proceed further. However, new Counsel has appeared before us. With frank candour he has told us that if it should be necessary to amend the IT1 and that such an application was refused, the matter is in Counsel's words `now dead'. With further candour he announced that he must abandon the grounds set out in the Notice of Appeal. Counsel now appearing (Mr Mead) is placed in an embarrassing situation for reasons which will be obvious and because it may be he has come into the matter at short notice. We commend him not only for his candour but for the stalwart way in which he has sought to present this appeal in the difficult circumstances which we have outlined.

Having abandoned the grounds of appeal set out in the Notice, Mr Mead seeks leave to amend his Notice of Appeal, to argue that the Industrial Tribunal were wrong to treat the claim as being one of unfair dismissal only. So far as that matter is concerned we grant him leave to amend his Notice. Though still we think it will be a matter for the exercise of the Tribunal's discretion and we might have difficulty in reaching any conclusion that they had acted perversely in any way. In any event we do not see how, without an amendment of the IT1, the Tribunal could have treated the claim as anything other than a claim for unfair dismissal. That there were allegations of sexual harassment is of course plain from the document itself. We have already referred to them. But an allegation of sexual harassment is a far cry from an allegation that the employers themselves were guilty of sexual discrimination and, that that was the reason for the dismissal. There is nothing in the IT1 coming near that allegation. Mr Mead has helpfully referred us to two authorities bearing on the matter. The first of them is Burns International Security Services (U.K.) Ltd v Butt [1983] ICR547. The E.A.T. in that case was presided over by Mr Justice Neill, as he then was. In particular we look at a passage in his judgment at page 550 where the learned judge giving the decision of the E.A.T. said this:

"It seems to us that in the field of industrial relations where application forms are frequently completed by individual employees without professional assistance a technical approach is particularly inappropriate."...

"It was pointed out in Cocking v. Sandhurst (Stationers) Ltd. [1974] I.C.R.650 that the rules did not require that the complaint as presented should be free of all defects or should be in the form in which it finally came before the tribunal for adjudication. The purpose of the rules is to ensure that the parties know the nature of the respective cases which are made against them... We are satisfied that the originating application which the applicant presented in December 1981 constituted a complaint that he had been unfairly dismissed and was presented within the statutory time limit."...

We distinguish that case and those observations from the present. It is by no means plain to us that the claim presented by Miss Stafford in 1993 was a claim for sexual discrimination, far from it. It was a claim as she clearly set out of unfair dismissal. The other authority to which we have been referred and of which we have taken account is that of Dodd v British Telecommunications Plc [1988] ICR 116.

On the amended grounds of appeal we take the view that the Tribunal were entirely correct to treat the matter as one of unfair dismissal only. In any event it was a matter for their discretion as it would be a matter for our discretion it seems to us, whether they should go further than the pleaded case. It is clear that the Tribunal regarded the case as one of unfair dismissal only. As we have said in our view it would require an amendment of the IT1 in order to develop any different case in the manner in which the Appellant desires to do. Even on the amended Notice of Appeal we do not feel that there is any arguable ground nor can any complaint be made. Therefore despite the best efforts of Mr Mead, we are constrained to say that there is no ground for allowing this appeal to go to a full hearing and we dismiss it.