United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR R LOWE (Solicitor) Legal Adviser Broadway House Tothill Street London SW1H 9NQ


 


MR JUSTICE MORISON (PRESIDENT): This is an appeal against the Registrar's refusal to allow the Appellants leave to amend their Notice of Appeal. The appeal is against the unanimous decision of an Industrial Tribunal held at Shrewsbury, which adjudged that the Respondents had unfairly dismissed the Applicant and awarded him £9,000 odd by way of compensation.

In accordance with our normal practice the matter came on for a Preliminary Hearing in front of a division of the Employment Appeal Tribunal, presided over by His Honour Judge D.M.Levy QC, who having heard argument from leading Counsel on behalf of the Appellants, ordered that the appeal be allowed to proceed to a full hearing, but on certain specific points.

The Notice of Appeal, as originally drafted, contained three separate heads (A), (B) and (C) and under each of those heads were a number of particular grounds. Head (A) was that the Industrial Tribunal's determination that the dismissal was unfair was wrong in law; head (B) related to the determination of compensation and head (C) related to the procedure at the Industrial Tribunal hearing.

Under Head (A) there were a large number of numbered paragraphs up to paragraph 9, so that there was a paragraph (i) and a paragraph (ii). The paragraphs were numbered sequentially thereafter. The terms of the order which was made by the Employment Appeal Tribunal was:

"THE TRIBUNAL ORDERS that the Appeal be allowed to proceed to a full hearing of the Employment Appeal Tribunal on points 1 and 2 only.

THE TRIBUNAL FURTHER ORDERS that unless a sworn affidavit is filed with the Employment Appeal Tribunal within 14 days of today setting out the complaint made in point 3 that ground of appeal will be dismissed."

The Employment Appeal Tribunal also ordered Notes of Evidence to be supplied and those notes having been obtained, have given rise to further grounds which the Appellants would wish to rely on under the same general heading (A) and (B).

It was those amendments which were refused by the Registrar on the understandable basis that, if the Appellants were confined to arguing points 1 and 2, meaning paragraphs 1 and 2 of the Notice of Appeal, but were not permitted to argue anything else, these amendments should not have been permitted because it was going back on a decision already arrived at by this court.

It seems to me quite clear, having looked at the material, having looked at the affidavit, which has been supplied recording what took place before His Honour Judge Levy and having read what leading Counsel has said, that although the order refers to points 1 and 2, what was intended and must have been intended, was a reference to heads (A) and (B) or grounds (A) and (B).

I am clear that that must be so, because the order which relates to what was described as point 3 would not have made any sense unless it related to ground (C). In ground (C) there were allegations relating to the way the evidence had been taken and it is clear that His Honour Judge Levy was of the view that that was an allegation effectively of misconduct by the Tribunal requiring an affidavit to be sworn within a period of time.

In the event the Appellants have decided not to file an affidavit, but it seems to me to be obvious that if point 3 was ground (C) as it must have been, then points 1 and 2 must be grounds (A) and (B). That being so the basis for the objection to the amendment, which was accepted by the Registrar, no longer applies.

It seems to me that the additional matters in the amendment do not add anything significant to what already has been raised in the grounds of appeal and, despite the written representation made by Mr Jones, the Respondent to this appeal, who is the successful Applicant, I am of the view that leave to amend should be granted and to avoid any further confusion I direct that the original order be varied to substitute for points 1 and 2 the words "Grounds A and B only" and in relation to point 3 it should refer to "Ground C" and I so direct.

That said, I have looked at the Tribunal's decision with care and, although I have not heard argument myself on the question, I should make it plain that I see nothing wrong with the decision of the Industrial Tribunal in this case and, I am of the view that had the matter come before a division of the Employment Appeal Tribunal, presided over by myself, it is likely that it would not have been allowed to proceed to a full hearing. I say that, because it seems to me that the Appellants in this case will wish to consider whether to continue to pursue their appeal. If they do so I should tell them that they are at risk as to a Costs Order being made against them.

It will be entirely a matter for the new division of the EAT which hears the appeal to arrive at their own conclusions upon the matter, but I would like to warn the Appellants that the fact that their case has been allowed to proceed to a full hearing does not absolve them from reconsidering their position at this time, to satisfy themselves that it would be reasonable for them to continue with this appeal. If they do continue with it, and if the EAT takes the view at the full hearing that this was a hopeless appeal, then a Costs Order may be made in the circumstances of the case.