United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR M GALBERG (of Counsel) Stanley Tee & Co High Street Bishop's Stortford Hertfordshire CM23 2LU
For the Respondent	MISS E MELVILLE (of Counsel) Forbes Hall 8/10 Half Moon Court Bartholomew Close London EC1A 7HE


 


JUDGE D PUGSLEY: On 25 June 1997 Sandra Gear presented an application for unfair dismissal. The body of her Originating Application reads thus:

"In April this year I had a disagreement with a work colleague. My boss John Orman sorted it out and the conversation ended with him saying, he was very pleased with my work. I couldn't work any harder than I do and wouldn't want me to leave.

The next day he went on holiday for 2 weeks. When he came back his attitude changed completely. The Secretary had faxed him to tell him about me. He asked me how long I intended on staying and I said till September. He said I was being silly and that it was too dangerous and wouldn't look good. He said he'd let me stay till August but didn't want me to be there at all. I went on holiday for the 1st week in May. When I came back 11th May, I found he'd advertised and given my job away while I was on holiday and was given no notice about it. I feel it 's totally unfair. Just because the man has money doesn't mean he should be allowed to treat people like this.

As Mr Justice Bell observed in the preliminary hearing, it does not leap off the page that she was making an allegation that she had been dismissed due to pregnancy.

It would appear however that the Respondent, Mr Orman, was aware of the background since his Notice of Appearance reads as follows:

"Miss Gear was not dismissed and it was not her job advertised. We were advertising because one of the other girls wanted to leave to help with her daughter's baby.

When I suggested she should leave in August it was because of the baby she was expecting, as I consider a lady in advance stages of pregnancy should and could not handle large horses. She flew into a temper, which she is prone to do, and walked off the job leaving us with horses to look after and having to telephone the head girl to come in to work on her day off. We have never seen or heard from her since.

I would just like to say once again we did not advertise her job and we did not dismiss her. She walked off the job, which is very irresponsible when dealing with animals."

Miss Gear's employment had only commenced on 2 January 1997 and it was terminated around 11 May 1997. It would seem probable that either the Chairman or at least members of the Employment Tribunal staff, appreciated that this action was to be classified under section 99 since no issue was taken as to the continuity of her service to maintain an action for unfair dismissal.

The Employment Tribunal in paragraph 4 of its Decision made the following findings of fact:

"(a) The Applicant commenced employment on 6 January 1997 as a groom at the Respondents' stables in Waltham Abbey, Essex. She worked under the manageress, Ms Helen Robertson.

(b) The Respondents, who were formerly dairy farmers, ran a medium sized business comprising livery stables with about 70 horses, kennels and fishing. They also let out a light industrial unit and a cattery on their land.

(c) The Applicant did not have a contract of employment, and there were no written staff procedures or contractual terms.

(d) The Applicant was praised by Mr Orman for her work in about March/April 1997.

(e) The Applicant became pregnant in about April 1997, and notified Ms Robertson and the Secretary. The Secretary faxed the information to Mr Orman, who was then on holiday.

(f) Mr Orman spoke to the Applicant at the end of April/beginning of May 1997, after he came back from holiday and before she left on her holiday, and told her that she would have to leave at the end of August, because of her pregnancy. The Tribunal found that he was terminating her employment with effect from the end of August. Mr Orman said at one stage that he had in mind to allow her to do light work after that, but he did not mention this to her, and it was not referred to in his Notice of Appearance. The Tribunal considered that Mr Orman was only putting this point forward to try to assist his case before the Tribunal. The Applicant wanted to work for a longer period - until September - and she was upset at what he said, particularly a remark he made about miscarriages to the effect that it would be much worse to have a miscarriage at 5 months than at 3 months. Mr Orman thought that she 'flew into a temper', she denied this, and the Tribunal was unable to reach a conclusion on how she had responded to him, but it was clear that Mr Orman was aggrieved at her response.

(g) Thereafter he decided to replace her sooner than the end of August. While she was on holiday, he advertised for a full time groom, who was intended to take over her post.

(h) The Tribunal rejected the argument that this appointment was intended to be a replacement for the part time employee, Jane, who was leaving. The evidence of the Applicant and Ms Robertson, confirmed to some extent by Mr Orman, was that there was much more work to do in the stables over the winter months than in the summer months, because during the summer the horses could be kept out in the fields. As a result, staffing levels had been lower during the summer months, both in the year prior to the Applicant's appointment, and after she was dismissed. Therefore it was not plausible that the Respondents would be seeking to increase staffing levels at the beginning of the summer, to three full timers.

(i) In 1996, the staff were Ms Robertson, the manageress, Heidi, a full time groom, and Jane, a part time groom, who was almost full time. According to the Applicant, Jane's hours had been considerably reduced during the summer months, and then increased in the winter months. In January 1997, the Applicant replaced Heidi, as full time groom. In about May 1997, Jane the part time groom left; a new full time groom, Vicky, was appointed; and a new part time groom, Jackie, was appointed, but she worked many fewer hours than Jane had done over the winter months - she was only the stables to cover on occasions when Vicky or Ms Robertson were not able to be there, and worked probably a maximum of 3 days per week. Then by October 1997, a new full time groom, Paula, had been appointed to replace Vicky; Jackie had left, and the stables were advertising for a new full time groom to assist during the busy winter months.

(j) Based upon this evidence, the Tribunal did not accept that the Respondents would have employed three full time staff over the summer months of 1997 because of the reduced work load. It seemed far more likely that the new full time groom was being sought to replace the Applicant. This was supported by the fact that after the Applicant had departed, the Respondents only found it necessary to appoint a part timer doing a limited number of hours. They did not need another full time, or nearly full time groom, until the winter season began again.

(k) On her return to work from her holiday, on Sunday 11 May, the Applicant was told by a livery owner, named Sue, that she was surprised to see her there since she had been told by Mr Orman that she had been dismissed and a replacement had been recruited. The Applicant looked at the newspaper and saw the advertisement for a full time groom. The Applicant was upset and since she was feeling sick because of her pregnancy, she went home. Before doing so, she tried to find Mr Orman at his house but he was not there. There were no other staff at the stables, but she left a message with Sue to ask Jane, the part time groom, to cover for her when she returned that afternoon to look after her own horse.

(l) Ms Robertson returned to the stables later that afternoon, and was told by a livery owner (Cherry) that the Applicant had left the stables at lunchtime after being told by another livery owner (Sue) that she had been dismissed. To her annoyance, Ms Robertson then had to do the Applicant's work.

(m) According to the Applicant, when she was ill in bed on the Sunday night, her mother in law took a message from someone at the stables, who she thought to be Helen, saying that she had been dismissed, a replacement had been recruited, and she should not return to the stables.

(n) Ms Robertson came into work the next day (her day off), and spoke to the Secretary and Mr Orman. According to Ms Robertson and Mr Orman, no attempt was made to contact the Applicant; the Applicant did not contact them, and her P45 was sent to her some weeks later."

The Tribunal then went on to analyse the evidence:

"(q) The Tribunal preferred the evidence of the Applicant, who was clear and consistent and appeared honest, to that of Mr Orman, who was confused, had a poor recollection of dates and events, contradicted himself on numerous occasions, and at times appeared to be tailoring his evidence to suit the case.

(t) The Tribunal concluded that the Applicant was dismissed on or about 11 May. The Respondents had already indicated their intention to dismiss her because of her pregnancy, with effect from the end of August, but following the discussion between Mr Orman and the Applicant, Mr Orman decided to dismiss her at any earlier date and arranged to replace her. The decision was communicated to her by a member of his staff, after she had first heard it from a livery owner."

The Tribunal went on to say that:

"5. The reason for the dismissal was the Applicant's pregnancy."

As Mr Justice Bell observed, in the preliminary hearing, that:

"On reading the papers [the Notice of Appeal set out by the Respondent] it appeared to us that the main point on the appeal was whether the Industrial Tribunal was in fact entitled to find, on the material before it, that Miss Gear was dismissed at all by Mr and Mrs Orman, more particularly by Mr Orman, and we say no more than this, at this stage that had the hearing proceeded on the basis of that contention alone, we might have found it difficult to say that no reasonable Tribunal, properly directed, could have reached the decision which they did, whether or not it was actually Mr Orman who conveyed the fact of her dismissal to Miss Gear personally.

As is frequently the case, those who appear in person at a Tribunal when they are aggrieved at the result often seek an appeal which is, for the most part, no more than expressing their disagreement with the factual findings made by the Tribunal. It is pertinent to note that in ground 4 of the grounds of appeal, the Appellants were saying that they were not consulting a solicitor on this matter.

However, in paragraphs 5 and 6 of the original grounds of appeal, it was pointed out that the claim under the Sex Discrimination Act was added on the day and Mrs Orman had been added at the hearing, as a Second Respondent. At the preliminary hearing leave was given to amend the grounds of appeal and we now have grounds of appeal which are exclusively concerned with those issues. We say right away that the issue of joining the second Appellant is not one that really has been put forward at the forefront of the submissions of Mr Galberg. It is difficult to see how joining the Second Appellant was in any way other than a proper course, since she was a partner and her husband took an active role in the hearing on her behalf. It is not, we think, a matter which need detain us as Mr Galberg has not suggested that, in itself, that would be a ground for remitting the whole of the case.

The real issue of this appeal is contained in paragraph 6 (a) of his Notice of Appeal which reads:

"....the Industrial Tribunal erred in law in that;

(a) at the commencement of the hearing on 21 October 1997 the Tribunal added a claim under the provisions of the Sex Discrimination Act 1975 ("the Act") to the Respondent's application without;

i. first, informing the Appellants that such a claim was, as of that date, out of time and that it could only be added if the Tribunal found it 'just and equitable' so to do within the meaning of Section 76 (5) of the Act;

ii. first, inviting the Appellants to make any representations as to whether it was 'just and equitable' so to do.

ii. In all circumstances ensuring that unrepresented appellants were given sufficient opportunity of being heard by the Tribunal before it exercised its discretion to add a fresh cause of action."

Before us the Appellants have argued that the Chairman's notes make it clear that the new claim was added after hearing "a summary of the case from each party". This, it is contended, is not the same as following the approach set out by the Employment Appeal Tribunal in Selkent Bus Co Ltd v Moore [1996] ICR 836 and the guidelines at 842 F to 844 C. The judgment was given by Mummery J who was then the President of the Employment Appeal Tribunal:

"The rival submissions of the parties state the position at opposite extremes. Before we state our conclusions on this appeal, it may be helpful to summarise our understanding of the procedure and practice governing amendments in the industrial tribunal.

(1) The discretion of a tribunal to regulate its procedure includes a discretion to grant leave for the amendment of the originating application and/or notice of appearance: see rule 13 of Schedule 1 to the Regulations of 1993 and Cocking v Sandhurst (Stationers) Ltd [1974] ICR 650, 656G- 657D. That discretion is usually exercised on application to a chairman alone prior to the substantive hearing by the tribunal.

(2) There is no express obligation in the Industrial Tribunal (Constitution and Rules of Procedure) Regulations 1993 requiring a tribunal (or the chairman of a tribunal) to seek or consider written or oral representations from each side before deciding whether to grant or refuse an application for leave to amend. It is, however, common ground that the discretion to grant leave is a judicial discretion to be exercised in a judicial manner, ie., in a manner which satisfies the requirements of relevance, reason, justice and fairness inherent in all judicial discretions.

(3) Consistently with those principles, a chairman or a tribunal may exercise the discretion on an application for leave to amend in a number of ways. (a) It may be a proper exercise of discretion to refuse an application for leave to amend without seeking or considering representations from the other side. For example, it may be obvious on the face of the application and/or in the circumstances in which it is made that it is hopeless and should be refused. If the tribunal forms that view that is the end of the matter, subject to any appeal. On an appeal from such a refusal, the appellant would have a heavy burden to discharge. He would have to convince the appeal tribunal that the industrial tribunal had erred in legal principle in the exercise of the discretion, or had failed to take into account relevant considerations or had taken irrelevant factors into account, or that no reasonable tribunal, properly directing itself, could have refused the amendment: see Adams v. West Sussex County Council [1990] ICR 546.

(b) If, however, the amendment sought is arguable and is one of substance which the tribunal considers could reasonably be opposed by the other side, the tribunal may then ask the other party whether they consent to the amendment or whether they oppose and, if they oppose it, to state the grounds of opposition. In those cases the tribunal would make a decision on the question of amendment after hearing both sides. The party disappointed with the result might then appeal to this appeal tribunal on one or more of the limited grounds mentioned in (3) (a) above.

(c) In other cases an industrial tribunal may reasonably take the view that the proposed amendment is not sufficiently substantial or controversial to justify seeking representations from the other side and may order the amendment ex parte without doing so. If that course is adopted and the other side then objects, the industrial tribunal should consider those objections and decide whether to affirm, rescind or vary the order which has been made. The disappointed party may then appeal to this appeal tribunal on one or more of the limited grounds mentioned in (3) (b) above.

(4) 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.

(5) 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 addition 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, e.g., in the case of unfair dismissal, section 67 of the Employment Protection (Consolidation) Act 1978.

(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 time limits laid down in the Regulations of 1993 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."

Mr Galberg's submissions on behalf of the Appellant can be summarised in this way. He states that had the Chairman explained the position to the Respondent employers, it is possible the claim would not have been added. But more probably, if the claim had been added the Applicant, Mr Orman, would have asked for an adjournment and would have been granted one. If, confronted with the reality of a sex discrimination claim the Respondent employer would have, Mr Galberg submits, appreciated that he now faced a case which had an unlimited award and to which stigma could be attached, which would not be the case if he were merely meeting an unfair dismissal case.

Mr Galberg submits that, in those circumstances, it is likely that the employer would have obtained legal representation and this is a case where his case would have been put in such a way that the outcome may well have been different.

The Respondents to the appeal have been represented by Miss Melville and she points out the terms of Regulation 9 of The Industrial Tribunals (Constitution and Rules of Procedure) Regulations 1993. Regulation 9 provides:

"9(1) The tribunal shall, so far as it appears to it appropriate, seek to avoid formality in its proceedings and shall not be bound by any enactment or rule of law relating to the admissibility of evidence in proceedings before the courts of law. The tribunal shall make such enquiries of persons appearing before it and witnesses as it considers appropriate and shall otherwise conduct the hearing in such manner as it considers most appropriate for the clarification of the issues before it and generally to the just handling of the proceedings."

Miss Melville points out, with considerable force, that the factual matrix of the claim for unfair dismissal is exactly the same as the allegation of sex discrimination; it was merely placing a new label on an existing claim. Mr Orman, it is submitted, was well aware that the allegation was unfair dismissal based on pregnancy by virtue of the Notice that he put in the IT3 in paragraph 1.

Miss Melville points out that there is no appeal against substantive findings of the Employment Tribunal, but against the exercise of its discretion under Rule 13 (2) of Schedule 1 to the Industrial Tribunals to allow the amendment to add a claim under Sex Discrimination. The Appellants bear a heavy burden to show that exercise of discretion was such as to constitute an error of law. Miss Melville concedes that the claim under the 1975 Act was out of time and, in exercising their discretion to amend to add a new cause of action, the Employment Tribunal was bound also to consider its discretion under section 65 of the 1975 Act. Citing Hutchison v Westward Television Limited [1977] IRLR 69, Miss Melville points out that:

"The 'just and equitable' decision is a wide one which 'entitles the industrial tribunal to take into account anything which it judges to be relevant'. "

It is clear from paragraph 2 of their decision that the Employment Tribunal did consider the time limit for presenting the new claim and also considered their discretion to extend time. Miss Melville's submission is that the decision by the Tribunal to add the further cause of an action was the practical expression of the duty imposed upon an Industrial Tribunal under Regulation 9 of the Rules, without in any way detracting from the strength of her primary submission. Miss Melville points out that, if the Appellants are successful, it would not be appropriate for the case to be remitted to a fresh Tribunal for a complete re-hearing for the following reasons. The submissions only go to the question of remedy and that the only portion of the Respondent's award at risk, she says, should be the £2,000 for injury to feelings. Any re-hearing should be limited to whether the amendment should be granted and she says the award for unfair dismissal against Mr Orman should stand in any event.

Mr Galberg, on behalf of the Appellants, has made it clear that he would not ask as to allow the appeal on the basis that the only matter remitted was the issue as to whether the Applicant was entitled to the award of £2,000 for injury to feelings in relation to her Sex Discrimination claim. He accepts that the sum of £2,000 was within the range of proper orders and the only basis upon which he would ask us to allow the appeal would be if there was a complete re-hearing on both the unfair dismissal and the sex discrimination.

Conclusion. We accept that the Employment Tribunal Chairman had a difficult task. We do not consider that in any way the Chairman can be criticised for raising the issue of sex discrimination. As Phillips J observed, in Sheringham Development Co Ltd v Browne [1977] ICR 20 at 21:

"... It is their [a tribunal's] duty, particularly where parties are unrepresented, to find out what the case is all about and to see that the claim represents the reality of the matter. ..."

Moreover, Sheringham's case is a useful remainder that, in such a case as this, it is necessary for the appellate tribunal to be satisfied that some injustice would be done, namely if the matter were to be re-litigated the result would be likely to be different.

It is well recognised in employment law that reasonable people can come to different conclusions on the same factual evidence. Our decision illustrates that proposition.

One of the Industrial Members of the Tribunal, Mr Smith, would dismiss this appeal completely. He notes that in the Notice of Appeal the Appellants were indicating even then that they were not engaging a solicitor. It is his view that the issue of pregnancy was integrally connected with the issue of sex discrimination. He notes that the Tribunal resoundingly rejected the employer's account. Tribunals are there to give an economic and expeditious resolution to points of conflict and he considers that the Respondents can have no cause of complaint or have any justified sense of grievance as to the way in which matters occurred. He accepts Miss Melville's submission that the only portion of the award at risk in this appeal should be the £2000 for injury to feelings, but concludes that it would not be right to remit this matter in whole or in part to be determined by either the first or a differently constituted Tribunal. These were clear issues for the Tribunal to determine and there was no misdirection of law. The Tribunal did that which Tribunals are enjoined to do, namely clarified the reality of the situation and properly exercised the discretion to add a claim for sex discrimination.

The position of the other Industrial Member, Miss Whittingham, is very different. She does not criticise the Chairman for initiating the discussion as to the allowing of an amendment to include a claim for sex discrimination. However, she considers that before this course was taken, it was appropriate to follow the course suggested by the Appellants' Counsel to explain the significance of the claim for sex discrimination, to note that it was out of time and seek submissions as to the appropriateness of the amendment. She considers the probability is that the Appellants would have sought and obtained an adjournment and/or they could seek legal advice and that might have led to different result. She would allow the whole appeal and order the unfair dismissal and the sex discrimination case to be heard by a differently constituted Tribunal.

The judicial member's view lies somewhere in between the two of those views. Like the others he accepts the Chairman was perfectly proper in considering the question of an amendment. Moreover, he accepts that the issue of sex discrimination and unfair dismissal were integrally connected. He acknowledges that the Industrial Tribunal is a fact finding body and they emphatically rejected the account given by the employer as to the circumstances of the dismissal. He considers, like Mr Smith, that it would be inappropriate and unfair and unjust to allow the issue of unfair dismissal to be re-litigated before a different Tribunal. The employers had elected not to be legally represented and he notes that the body of the main grounds of this appeal were concerned with issues of fact which are a matter for the Industrial Tribunal.

However, he is concerned, like Miss Whittingham, that a further action was added which although integrally connected to the unfair dismissal, did mean that the employers faced a claim of sex discrimination which included a head of damage, namely injury to feeling which was not available for unfair dismissal. He considers that such issues should have been explained to the employers, so that they had an opportunity of making submissions about the matter and reconsidering whether, because of the change of circumstances, they now wished to have legal representation. Had the option been suggested and accepted by the Appellants' Counsel that the case should have been remitted purely to consider the issue of remedy, which was Miss Melville's subsidiary argument, he would have seen considerable merit in that. However, that is not an option that Mr Galberg has sought to press on this court. With respect, one considers that that is a wholly reasonable course. Mr Galberg's approach is that unless he can secure a total re-hearing, then any lesser claim is a Pyrrhic victory, and he has not sought to suggest we should allow the appeal on that basis.

In those circumstances the judicial member of this Tribunal takes the view that he must join with Mr Smith and dismiss this appeal, since he does not consider it would be appropriate that the whole case should be sent back to a differently constituted Tribunal for the issue on the basic factual matter to be re-litigated. The appeal is therefore dismissed by a majority.