United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MISS C IVIMY (of Counsel) Messrs Sydney Mitchell Solicitors Cavendish House 39 Waterloo Street Birmingham B2 5PU
For the Respondents	MR R SHEPPARD (Representative) Management & Personnel Services St James' House Frederick Road Edgbaston Birmingham B15 1JJ


 


MR JUSTICE MORISON (PRESIDENT): This is an application for leave to amend the Notice of Appeal. It is made late in the day and one of the questions I have got to decide is whether it would be inequitable to allow this amendment at this time.

The case that gives rise to this appeal arose out of a hearing over a period of nine days before an Employment Tribunal at Birmingham. The decision was sent to the parties on 8th August 1996 and the appeal has still yet to be heard. There have been two preliminary hearings in relation to this case. The second one was inter partes. I am told and accept that at that hearing the Employment Appeal Tribunal took considerable trouble to try and identify precisely what Mr Pearson's arguments were, he being an unrepresented litigant. Following that hearing the Court gave a judgment identifying the two points of law which it considered to be arguable. The second point of law is to be found on page 5F where it said this:

"The Tribunal erred in law in finding, or assuming, in paragraph 76 of its Decision that a refusal by the Applicant, if still employed, to "accept the new contractual regime" by 1 September 1995 would have afforded grounds for a fair dismissal and would have led by a fair procedure to a fair dismissal."

Looking at paragraph 74 of the Employment Tribunal's decision the reason why they confined the compensation to a period of three months was not just because of the reason referred in the paragraph from the EAT's judgment which I have read, but also because of a further point, namely that there was antagonism between the parties such as would be likely to have resulted in a fair termination of the employment by 31st December 1995.

As has been pointed out, Mr Pearson now has legal representation and Miss Ivimy on his behalf has pointed out to the Court quite rightly that the appeal would be somewhat empty on the point that the EAT identified unless she was also entitled to argue an error of law in relation to that part of the decision which confined the compensation to the period to 31st December 1995, namely the bad relationship between the parties. In other words, point (2) of the argument already identified would be somewhat empty.

The reason why it was not in the original Notice of Appeal and was not raised before was, I am satisfied, because Mr Pearson did not have the benefit of representation which he now has. Whilst it is regrettable that this point had not been made before, I do not consider it to be inequitable to allow this point to be argued at the full hearing of the appeal. I do not consider that any prejudice can be shown between having this point in the original appeal and having this point added by way of amendment. Indeed, I think it is quite clear that the point would have had to have fallen for consideration in any event for the reason mentioned by Miss Ivimy in her submissions.

The point that Miss Ivimy wishes to argue is that the tribunal's finding that the relationship would be likely to have resulted in a fair termination of the employment is unsupported by sufficient factual findings. In other words, she argues that there is no sufficient findings as to what the reason for the dismissal would have been and she obviously draws attention to the possibility that if there had been antagonism between them, it may be a case where a constructive dismissal case would have occurred.

Those points are as arguable, it seems to me, as the points which the EAT have allowed through. I express no view as to whether they will win at the end of day. But it seems to me that the interests of justice require an amendment, provided, as I am satisfied, that the respondents are not going to be prejudiced by allowing this late amendment.

It is not suggested, which is important, that this point was considered by the Employment Appeal Tribunal at the earlier stage but rejected on the basis that it was unarguable. If that had been the position then I would not have been felt able to have amended the Notice of Appeal. It would have been a matter which would have to have been put right by the Court of Appeal.

In those circumstances, I grant the application for leave to amend. There was a discussion with the Court as to whether Notes of Evidence are required to enable this point to be argued. I am satisfied that Notes of Evidence are not required in this case. The appellant must be confined to putting the case in the way indicated by Miss Ivimy and the way that it is put in the previous judgment of the Employment Appeal Tribunal. Accordingly I say that Notes of Evidence are not required by the Court to enable the Court to discharge its duty to do justice between the parties on the hearing of the appeal. To that extent I make the orders requested.