United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR P DRAYCOTT (Representative) Free Representation Unit Peer House 8-14 Verulum Street London WC1X 8LZ
For the Respondents	NO APPEARANCE BY OR ON BEHALF OF THE RESPONDENTS


 


MR JUSTICE KIRKWOOD: This is an appeal against an interlocutory decision of an Industrial Tribunal sitting at London (South) on 17th April 1998. The extended reasons of the tribunal, and it was a tribunal constituted by a Chairman sitting alone, were sent to the parties on 24th April 1998. The decision was not to allow amendment of the Originating Application (which complained of sexual harassment) to include a complaint of unfair dismissal. There was a subsidiary matter in that whilst allowing amendment to extend the case to one of unlawful discrimination by way of victimisation, and whilst allowing certain particulars of complaint, the tribunal did not allow one matter to be included in those particulars, and we will return to that.

Notice of this appeal was given to the respondents. The respondents filed an answer saying the appeal was opposed and relying simply upon the reasons given by the Industrial Tribunal without any addition. The respondents completed a form indicating that it would not attend on the hearing of the appeal. Mr Draycott who appears today for the appellant has spoken to the respondents' legal representative who has confirmed that they do not intend to attend today and the respondents have not lodged any skeleton argument.

The brief background facts to this case, which we assume for the purposes of this appeal though we fully recognise that they have not yet been adjudicated by the Industrial Tribunal, are these. From 1994 Mrs Beezley worked in the staff restaurant of the Royal Mail Sorting Office at Mitcham. On the morning of 18th January 1996, a day on which her colleague and manager was away, Mrs Beezley was working in the restaurant serving tea and taking the money for it, when her attention was drawn to the fact that somebody had put a pornographic video film on the restaurant television. Mrs Beezley was shocked and upset and called out to turn it off. She was laughed at and jeered at, there was further unpleasantness of that kind; she was terribly upset about the whole thing, and she was later prevailed upon to inform management and to make a statement. We understand that the postman who put the video on was suspended and later dismissed.

Mrs Beezley did not feel able to return to work until her manager, who had been off work in fact with a broken ankle, returned to work. But even then there was unpleasantness. Some of the postmen boycotted the restaurant. In the months that followed there was a number of episodes of revengeful bullying, that was really what they amounted to, some of which were of a sexual kind.

By the end of September 1997 Mrs Beezley really could take no more and she gave a week's notice, expiring on 3rd October 1997, which was when she left.

On 30th December 1997 she made complaint to the Industrial Tribunal. In her form IT1 Box 1 she said the type of complaint she wanted the tribunal decide was sexual harassment. In Box 3 she named no representative. In Box 11 she set out her story. It concluded with these words:

"I would also sit in my car everyday before going into work thinking I don't want to go in there but I had to. So in the end I started looking for another job but as I had no confidence in myself I did not go to any interviews then a friend of mine got me a job with her so I gave in my notice but on leaving I feel really depressed to think that they have won."

A little time after lodging that complaint Mrs Beezley went to see the Wandsworth and Merton Law Centre for help about her case. That was at the very beginning of February 1998. She was given some brief and basic advice about an Industrial Tribunal claim and, on 13th February, Mrs Beezley rang the South London Industrial Tribunal office to talk to the case worker there assigned to her case. The very next day, on 14th February 1998, she wrote a letter to the tribunal about some matters that had obviously been discussed the day before. She also said:

"I would also like to make an amendment to my statement to add constructive dismissal to my case."

There were some interlocutory matters dealt with in correspondence concerning the identification of the proper respondent. That was in fact resolved at an interlocutory hearing on 17th April, but there is no need for us to go into any detail about that.

At that hearing on 17th April 1998 Mrs Beezley was represented by Mr Draycott from the Free Representation Unit. Mr Draycott made a number of applications, one was to do with time limits, and we need not go into that. The second was an application to plead the victimisation case. That was, as we have indicated, allowed subject to the one particular matter to which I shall return. The third was an application to amend to plead constructive unfair dismissal. That was opposed on the basis that it was out of time and that it would have been reasonably practicable to raise the complaint within the three month time limit.

In deciding that application the Chairman of the Industrial Tribunal (who was sitting alone) said this:

"12. In considering this application for amendment, I noted that although the Applicant did refer to resignation in her Originating Application she made no complaint as to the termination of her employment in the Originating Application. Furthermore I noted that at no time has the Applicant in these proceedings alleged that the termination of her employment was an act of sex discrimination. In my view the position is covered by the case of Selkent Bus Company Ltd v Moore. It is a new complaint or cause of action which is proposed to be added by way of amendment and in those circumstances it is essential for me to consider whether the complaint is out of time. The Applicant's employed terminated on 3 October 1997, and the application to amend was originally raised by the Applicant in her letter to the Tribunal of 14 February 1998 received in the Tribunal offices on 17 February 1998. Clearly the complaint of unfair dismissal is out of time and it seems clear to me that it must have been reasonably practicable for that complaint to have been presented within time as it could have been included within the Originating Application presented on 30 December 1997. In those circumstances the application to amend to include the complaint of constructive unfair dismissal is refused."

We reflect that when the Originating Application was lodged on 30th December 1997 it was just within the three month period from the termination of employment and that Mrs Beezley was acting in person.

Selkent Bus Company Ltd v Moore [1996] IRLR 661 is a decision of the Employment Appeal Tribunal. The judgment is that of the President, Mummery J. In his judgment the learned President said this:

"Whenever the discretion to grant an amendment is invoked, the tribunal should take into account all the circumstances and should balance the injustice and hardship of allowing the amendment against the injustice and hardship of refusing it.

What are the relevant circumstances? It is impossible and undesirable to attempt to list them exhaustively, but the following are certainly relevant:

(a) The nature of the amendment

Applications to amend are of many different kinds, ranging, on the one hand, from the correction of clerical and typing errors, the additions of factual details to existing allegations and the addition or substitution of other labels for facts already pleaded to, on the other hand, the making of entirely new factual allegations which change the basis of the existing claim. The tribunal have to decide whether the amendment sought is one of the minor matters or is a substantial alteration pleading a new cause of action.

(b) The applicability of time limits

If a new complaint or cause of action is proposed to be added by way of amendment, it is essential for the tribunal to consider whether that complaint is out of time and, if so, whether the time limit should be extended under the applicable statutory provisions, eg, in the case of unfair dismissal, s. 67 of the 1978 Act.

(c) The timing and manner of the application

An application should not be refused solely because there has been a delay in making it. There are no time limits laid down in the Rules for the making of amendments. The amendments may be made at any time - before, at, even after the hearing of the case. Delay in making the application is, however, a discretionary factor. It is relevant to consider why the application was not made earlier and why it is now being made; for example, the discovery of new facts or new information appearing from documents disclosed on discovery. Whenever taking any factors into account, the paramount considerations are the relative injustice and hardship involved in refusing or granting an amendment. Questions of delay, as a result of adjournments, and additional costs, particularly if they are unlikely to be recovered by the successful party, are relevant in reaching a decision."

In paragraph 12 of the extended reasons the Chairman expressed himself to be following Selkent. He applied that provision or that passage in the decision which focused upon considering time limits and whether time should be extended. He decided it solely on that basis, deciding that it was reasonably practicable for this complainant, albeit a litigant in person, to specifically plead in Box 1 'unfair dismissal' within the three month time limit.

It is true to say that in considering the victimisation amendment the Chairman had in paragraph 9 of the extended reasons set out the guidance he received from Selkent a little more fully. Indeed, he specifically referred to the application to amend being as to the label put on the factual complaints. He also balanced any questions of injustice and hardship and plainly he had those in mind on that application and we take it that he had them mind upon this application.

The submission for the respondent on the victimisation amendment was that that was out of time, but in that instance the Chairman applied a wider approach to the application to amend than he did later on the unfair dismissal application.

The main point in the appeal is that the factual matters upon which a complaint of unfair dismissal was based were all pleaded in the original Form IT1 or in the particularisation under the victimisation claim that had been allowed by the Chairman. This was emphatically not a case of new factual allegations changing the basis of the claim.

The appellant relies upon the decision in Selkent to which I have referred and relies also upon a decision of the Court of Appeal in British Newspaper Printing Corporation (North) Ltd v Kelly [1989] IRLR 222. In that decision Lord Donaldson MR said this:

"... it is quite true to say that Parliament has laid down rules covering the lodging of applications to Industrial Tribunals but it has not laid down rules for time limits in relation to amending applications which have already been made. The time limit which is laid down for the lodging of initial application for compensation for unfair dismissal is contained in s.67(2) of the Employment Protection (Consolidation) Act 1978:

[the Master of Rolls then set that subsection out, he continued:]

That subsection seems to me to be entirely echoed in the sentence contained in the majority's reasoning where they said:

'The majority asked themselves if it was reasonably practicable for the application to amend to be lodged earlier than this date and if so when.'

The same echo appears in paragraph 16 where they are referring to time limits being laid down by Parliament for applications to Industrial Tribunals.

There is very little in this reasoning which could be expected if the Tribunal were asking themselves, 'What are the relevant hardships expected to be suffered by the parties if the amendment is or, as the case may be, is not allowed? and 'What would be the injustice to the parties respectively, again, if the amendment is or is not to be allowed? In fact, the injustice to the employees in my judgment, would be absolutely overwhelming. They would be deprived of the possibility of arguing for, it may well be, quite substantial claims for compensation for unfair dismissal. This disadvantage to the employers is not so apparent unless one takes account of the fact that refusing the amendment would insulate them from any risk that they might have to pay damages rightly payable for unfair dismissal."

For the sake of completeness, we mention that Mr Draycott also refers to a decision of the Employment Appeal Tribunal in Waltons & Morse v Dorrington [1997] IRLR 488 in which Morison J, the President, held that there was implied an term of every contract of employment that the employer will provide and monitor for employees, so far as is reasonably practicable, a working environment which is reasonably suitable for the performance by them of their contractual duties.

We recognise that a complaint of unfair dismissal was out of time and a discretion arises in the Industrial Tribunal as to the extent to which it allows a complaint to be brought out of time. However, it is clear that in this instance the Originating Application itself was within time. It is clear that all the material facts were pleaded in the Originating Application. It is clear that within a short period of time of lodging her Originating Application Mrs Beezley took legal advice and as a result of that advice at once asked the Industrial Tribunal to amend Box 1 of her IT1 on the basis that the facts alleged disclosed a case of unfair constructive dismissal. What Mrs Beezley was doing was seeking to attach a legal label to the facts that she set out in her IT1 following advice about her case. There is no question of her case altering in any factual sense as a result of her proposed amendment, and the effect of her amendment, if allowed, would be to enable justice to be done on the facts that were causing her such concern, justice done in a comprehensive and proper fashion.

A relevant question for the Industrial Tribunal was what risk of hardship or injustice would arise to the respondents if the amendment was made and how that should be balanced with any risk of hardship or injustice to the applicant if the amendment was not allowed.

It seems quite clear to us that refusing leave to amend would lead to a substantial risk of injustice to Mrs Beezley. Granting leave to amend would not expose the respondents to hardship or injustice, beyond exposing them to the risk of a decision and remedy against them in respect of unfair constructive dismissal.

We are satisfied that the Chairman did not in paragraph 12 of the extended reasons bring into his consideration all those matters he should have brought into his consideration and we are minded to allow the appeal on this aspect. The result would be that Mrs Beezley has leave to amend to include unfair constructive dismissal in Box 1 of her Originating Application Form IT1.

The second ground of appeal relates to the victimisation claim.

The Industrial Tribunal allowed a number of specific acts and series of acts to be particularised. Those are set out at paragraph 2(ii) of the decision of the Industrial Tribunal. Those of both a general and of a specific nature, specific acts and series of acts in the period between January 1996 and October 1997. In respect of one, however, amendment was not allowed. That was an allegation that a hygiene certificate awarded to Mrs Beezley for passing a course in kitchen hygiene had been removed. Mrs Beezley had that certificate hanging up on the kitchen wall where she worked and, in September 1997, found that it had been taken away. She saw it as all part of the campaign against her. The various certificates of her colleague, Mrs Simmonds, were left on the wall undisturbed, Mrs Simmonds had not made a complaint. So Mrs Beezley considers, and it is argued, that that episode is relevant to the victimisation claim and that the employer is responsible for whoever did it and for the incident because of s.41 of the Sex Discrimination Act 1975.

In this regard, the Chairman considered two authorities, the second being Selkent, he said:

"9. I consider that the starting point for dealing with the application to amend is the label the Applicant has put on that complaint and that in this case, the label not only describes what happened in January 1996 but also what happened following the dismissal of the First Respondent's employee in April 1996. [That is a reference to another incident that is relevant in the victimisation case.] ... I also refer to the of Selkent Bus Company Ltd v Moore [1996] IRLR 661 and considered carefully the terms of the Originating Application. I noted that the facts put forward in support of victimisation complaint are pleaded apart from the allegation as to allowing doors to close and the removal of the hygiene certificate and in my view this is part and parcel of the Applicant's complaint as to her treatment whilst at work as set out in her Originating Application. I took into account all the circumstances, balanced the injustice and hardship of allowing the amendment against the injustice and hardship of refusing it and considered that it would be appropriate to allow the amendment apart from the allegation concerning removal of the hygiene certificate where I considered that the Respondent could be at a considerable disadvantage with consequent injustice."

Thus, the Chairman disallowed the amendment in this respect on the basis that the respondents could be at a considerable disadvantage with consequent injustice, but the Chairman did not say why.

In order to try to ascertain what was behind that, we look to the summary of the submission made by Mr Foley on the respondents' behalf, in objecting to the whole of the victimisation amendment and the Chairman said this:

"8. ... The thrust of his arguments were that the Originating Application did not contain a complaint of victimisation by way of discrimination and that the complaints were out of time and further that it was not just and equitable for those complaints to be considered."

When we look at this specific matter and stand it beside the other matters referred to in paragraph 2(ii) of the tribunal's decision, we wonder what it is about the removal of the certificate that sets it apart from the other matters set out in paragraph 2(ii) other than the fact that the other matters are alluded to in the Form IT1. What sets it apart, we ask ourselves, from the allegations as to allowing doors to close, that was an allegation that other employees would leave doors to close or slam in Mrs Beezley's face, what sets it apart from that? We cannot find the answer to that in the extended reasons of the Industrial Tribunal. So we have asked Mr Draycott for his assistance. He cannot help us beyond suggesting that there may be difficulty for the respondents in identifying who moved the certificate. But then there will be difficulty for the respondents, or may be, in addressing the culprit in a number of the other matters referred to going back into 1996 which have been allowed. We are at a loss to understand what was the particular disadvantage perceived in respect of the certificate to stand it significantly apart from other matters by disallowing it.

It seems to us that it is very much part and parcel of Mrs Beezley's claim. It comes at the end of the whole series of events which are said to have caused her such upset. We do not find in the Chairman's reasons what matters on Mrs Beezley's behalf he weighed against the disadvantage he perceived towards the respondents. In our judgment, that part of the order of the Chairman cannot stand. In the circumstances of this case we consider that the most expeditious and sensible way of dealing with it is to allow the amendment to take place in respect of the missing hygiene certificate (as it was apparently allowed in respect of the banging doors).

For those reasons, this appeal will be allowed.