United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MISS VICTORIA BATHER (of Counsel) Messrs Birkett Long Solicitors Essex House 42 Crouch Street Colchester Essex CO3 3HH
For the Respondents	MISS JILLIAN BROWN (of Counsel) Messrs Rowe & Maw Solicitors 20 Blackfriars Lane London EC4V 6HD


 


MR JUSTICE LINDSAY: We have before us an appeal by Mr A Harvey, who appears by Miss Bather, in the matter of Harvey -v- Port of Tilbury London Ltd. The Port of Tilbury Company, the erstwhile employer, appears by Miss Jillian Brown. The appeal is against the decision of the Chairman sitting alone at Stratford, London, E15, a decision promulgated by a letter of the 19th March 1998. The Chairman by that letter refused leave to Mr Harvey to add to his existing claim for unfair dismissal by way of a specified proposed amendment.

The background to the case is as follows. On the 7th February 1997 Mr Harvey lodged his form of complaint, his "IT1", for "unfair dismissal" as at the 31st December 1996. It is the only IT1 in the case. In box 1 of the IT1, which is given the heading "Please give the type of complaint you want the Tribunal to decide (for example: unfair dismissal, equal pay ... If you have more than one complaint list them all ...", the form was filled in only to say "unfair dismissal". In Box 11, which is given the rubric "Please give details of your complaint" Mr Harvey wrote "No consultation with representatives. No proper consultation with myself. Unfairly selected. No interview procedures. No attempt to relocate with me within the Port. Directly replaced with a lower paid employee solely engaged in my work".

As for the circumstances surrounding the dismissal the Chairman in his decision held:-

"There is likely to be an issue between the parties as to the circumstances of the dismissal and as to the true reason for it. Sufficient for immediate purposes to recall that it is Mr Harvey's case that he was then given no reason to believe that his back problems, classified by him as a disability coming within Section 1 of the Act, formed any part of the Respondents' reasons for his dismissal. It was, however, a concern of Mr Harvey, entertained at the time of his dismissal, that his back problems may have been a factor telling against him."

On the 16th April Mr Harvey saw for the first time the Employer's IT3, its Notice of Appearance, which had been dated as long before as the 7th March. That IT3 said, inter alia,:-

"A history of back disorder and corrective surgery prevented [Mr Harvey] from undertaking the full duties of a working chargehand, but he provided relief cover for his colleagues during leave periods.

6. With fewer chargehands in the revised structure the Respondent deemed it essential that those remaining should be capable of the full range of chargehand duties and skills.

7. The Applicant was selected for potential redundancy on the basis that: (i) the nature of his job was changing; (ii) the Applicant could not perform the full duties of a chargehand; (iii) of the chargehands, the Applicant was the junior in both service and age."

As to Mr Harvey's position on seeing that IT3 the Chairman held as follows:-

"That discovery was a matter of great concern to Mr Harvey. Not only did it confirm the suspicions formed at the time of his dismissal but it suggested that he may have been deprived of a right to a disability pension. He did not, however, consider the possibility of a claim under the Act [a reference to the Disability Discrimination Act 1995] which had come into force only on the 1st December 1996, a short time before the dismissal on the 31st December 1996".

On the 17th September 1997 - thus over 5 months after Mr Harvey's discovery of the grounds relied upon by the employer - Mr Harvey sought to amend his IT1. His proposed amendment was sent to the Chairman of Industrial Tribunals at Stratford and reads as follows:-

"SUBJECT: UNFAIR DISMISSAL

I would like to add, Contravening the Disability Discrimination Act 1995, to my list of complaints for unfair dismissal against the Port of Tilbury. In the Port of Tilbury's Notice of Appearance it states in paragraph 5

"Although employed as a chargehand, the Applicant was also engaged in duties of a clerical nature. A history of back disorder and corrective surgery prevented him undertaking the full duties of a working chargehand, but he provided relief cover for his colleagues during the periods."

The reasons given for my dismissal, in correspondence I received from the Port of Tilbury at the time of my Original Application made no reference to disability.

I understand from my Disability Employment Adviser during an interview on the 17th September 1997 that this statement is in breach of the Disability Discrimination Act 1995. I therefore request your permission to serve the Port of Tilbury with a Disability Discrimination Act 1995 Section 56 (2) (a) Complainant's Questionnaire".

If that amendment, were it to be granted, were to introduce a complaint under Section 8 of the Disability Discrimination Act 1995 then the question would arise as to whether or not it was out of time under Schedule 3 Part I para 3 (1) of that Act, and, were it to be out of time, whether it would be "Just and equitable" within the provisions of paragraph 3 (2) of that Schedule for the Court to permit the complaint to be considered nonetheless.

This consideration causes one to pause to wonder what is "a complaint under section 8" within the meaning of para 3 (2) of that 3rd Schedule? Section 8 of the 1995 Act, under the heading "Enforcement, remedies and procedure" continues:-

"(1) A complaint by any person that another person -

(a) has discriminated against him in a way which is unlawful under this part, or

(b) is, by virtue of Section 57 or 58, to be treated as having discriminated against him in such a way,

may be presented to an Industrial Tribunal.

(2) Where an Industrial Tribunal finds that a complaint presented to it under this section is well-founded, it shall take such of the following steps that it considers just and equitable -

(a) making a declaration as to the rights of the complainant and the Respondent in relation to the matters to which the complaint relates;

(b) ordering the Respondent to pay compensation to the complainant;

(c) recommending that the respondent take, within a specified period, action appearing to the Tribunal to be reasonable, in all the circumstances of the case, for the purpose of obviating or reducing the adverse effect on the complainant of any matter to which the complaint relates.

(3) Where a Tribunal orders compensation under sub-section (2) (b), the amount of the compensation shall be calculated by applying the principles applicable to the calculation of damages in claims in tort ...

(4) For the avoidance of doubt it is hereby declared that compensation in respect of discrimination in a way which is unlawful under this Part may include compensation for injury to feelings whether or not it includes compensation under any other head."

Sub-section 8 provides:-

"(8) Part I of Schedule 3 makes further provision about the enforcement of this Part and about procedure."

That Schedule 3 Part I of the Act says, under the heading "Period within which proceedings must be brought" at paragraph 3 (1):-

"3. (1)An Industrial Tribunal shall not consider a complaint under Section 8 unless it is presented before the end of the period of three months beginning when the act complained of was done. ...

(2)A Tribunal may consider any such complaint which is out of time if, in all the circumstances of the case, it considers that it is just and equitable to do so."

In that paragraph 3 (1) it must surely be that the words "under Section 8" there describe the complaint rather than the nature of consideration which the Industrial Tribunal is to be obliged not to embark upon.

It is a familiar enough position in the law that a breach of some particular statute is alleged in a case not invoking any jurisdiction conferred by that particular statute nor asking for any relief available under it. It is easy enough to imagine a case, for example, in which a company might sue an employee/director or its accountants for breach of contract, one or the only alleged breach of that contract being his or their having caused or procured a breach of some requirement of the Companies Acts. The nature of the claim or complaint would be "breach of contract" notwithstanding that the Court, in deciding the case, might need to consider whether the provision of the Companies Act had, indeed, been broken. The case would remain properly characterised as being a breach of contract case notwithstanding that other proceedings could have been or might yet then still have been taken against the culprit in relation to the same short-coming, proceedings directly invoking the provision of the Companies Act. To continue with that company analogy, one would normally speak of a claim being under the Companies Acts only when a jurisdiction conferred by that Act was invoked and relief made possible under that Act was sought. Here, if the amendment were granted, the Employment Tribunal would need to examine whether there has been a contravention of the Disability Discrimination Act but, as the matter first appeared to us, the case appeared still to be one in which the only claim made remained one under the Employment Rights Act for unfair dismissal. It will be remembered that the proposed amendment begins by referring to the subject of unfair dismissal and asking for leave to add a contravention of the 1995 Act "to my list of complaints for unfair dismissal". Moreover no declaration is, on the face of things, sought by that amendment under Section 8 (2) (a) of the 1995 Act, nor any compensation under Section 8 (2) (b), nor any recommendation under Section 8 (2) (c). Moreover, the Chairman recognised there to be a difference between an unfair dismissal complaint that had a disability component on the one hand and what he called a "free-standing" disability discrimination complaint on the other. In declining to allow the amendment he said, inter alia,:-

"Further, albeit not as a free-standing complaint, he [Mr Harvey] will be in a position to invite the Tribunal to conclude that a reason for his selection/dismissal was one rendered unlawful by the Act and, therefore, as a factor pointing to unfairness".

We have been taken to no guidance from sex discrimination or race discrimination authorities or from other unfair dismissal cases - all being cases in which claims are subject to time-bars - as to a possible distinction between a complaint under the particular Act and a complaint in other proceedings which includes within it that the particular Act was breached. It does seem to us that there is a fundamental difference between, for example, an unfair dismissal case which has within it a complaint as to disability discrimination but where no relief under the Disability Discrimination Act is sought on the one hand and a complaint invoking the jurisdiction conferred by the Disability Discrimination Act and asking for relief under it on the other. The latter would plainly attract the time-bar in Schedule 3 to which we have referred. The former would, in our judgment, attract only the time-bar appropriate to complaints as to unfair dismissal. Our first reaction to the problems thrown up by this case was therefore to take the view that the amendment sought did not represent a complaint under Section 8 of the Disability Discrimination Act for the purposes of Schedule 3 Part I para 3 (1) of that Act. We would then have moved on to the position that if the Chairman had given material weight to the time-bar in Schedule 3 in declining leave for the amendment, that would accordingly have been his giving of weight to a consideration to which no weight should have been given. The Chairman manifestly did give weight to the presence of the time-bar. He noted:-

"... that the proposed amendment represents a substantial alteration by adding a wholly cause of action ..."

and he takes note of the fact that, if granted, the effect of the amendment would be to allow a claim to be brought which would otherwise be outside the three-month time limit imposed by the Act, a time limit which, on the facts of the case, would have expired on the 30th March 1997. He mentions that he bears in mind that there is a discretion afforded by the Act to treat a complaint as having been brought in time where it is just and equitable so to do.

Had the Appellant's argument thus been that the proposed amendment described above merely added to Mr Harvey's list of complaints for unfair dismissal then we would readily have received an argument that the Chairman's exercise of his discretion had to be set aside. Early on in the hearing we raised this point with Miss Bather. It transpired that notwithstanding the form in which the proposed amendment was couched it was Mr Harvey's intention not merely to urge that there was a disability component in his complaint of unfair dismissal but that he intended to seek relief under Section 8 (2) of the 1995 Act including also, under Section 8 (4), compensation for injury to feelings. It transpired that despite the form which the proposed amendment took this was the basis upon which Mr Harvey's application had been dealt with below. We were asked to bear in mind that the proposed amendment was prepared by no professional lawyer. Miss Bather was fully aware of the choice which seemed to lie before her; if the amendment was regarded as merely adding a disability component to an existing claim for unfair dismissal then, although, of course, we had not at that stage heard Miss Brown, there seemed to be a lively prospect of the Appellant's appeal succeeding. However, such success, if it did not include an ability to make what the Chairman had called a "free-standing" claim under Section 8, would have had little attraction for Mr Harvey. Conversely, if it was to be taken that the proposed amendment did add a free-standing complaint under Section 8, then, as it was in that light that the Chairman had considered the proposal, there would be greater difficulty in setting aside the Chairman's decision. Miss Bather decided, consistent with Mr Harvey's intentions as they had been, apparently, all along, that the proposed amendment was to be addressed as if raising a complaint "under Section 8". As a matter of guidance going beyond the facts of this particular case we cannot over-emphasise that where an amendment is sought it behoves the applicant for such an amendment clearly to set out verbatim the terms and explain the intended effect of the amendment which he seeks. Miss Brown for the employer raised no objection to the amendment being treated as raising a complaint under Section 8 and we accordingly proceed as if it had done.

At the centre of Miss Bather's argument for the Appellant is a point she seeks to derive from British Newspaper Corporation Ltd -v- Kelly [1989] IRLR 223 at 224 para 10 C.A. It is that the time limit of Schedule 3 is not applicable where a Section 8 disability discrimination complaint is added by amendment to an existing complaint of some other kind, in contrast with the position when a complaint under Section 8 is "presented" within the meaning of para 3 (1) of the Third Schedule. The time-bar applies in the latter situation but not, argues Miss Bather, in the former.

In the Kelly case the employees' IT1s had said "redundancy" in Box 1 but their IT1 had also been completed as if raising a complaint of unfair dismissal. Their solicitors sought later to amend their complaint so as plainly to include damages for unfair dismissal. The amendment, as Lord Donaldson described it, was (at para 8 page 223):-

"To make crystal clear and remove any ambiguity which might have arisen ... Counsel for the employer says that it was not a purely labelling or re-labelling exercise and that may well be right but, at all events, they wanted to remove all argument and set out to do so."

However, those solicitors delayed and, at the Industrial Tribunal, they were, by a majority, refused leave to make the amendment. At the time the statutory time-bar on unfair dismissal complaints was that found in Section 67 (2) of the Employment Protection (Consolidation) Act 1978 which provided:-

"Subject to sub-section (4), an Industrial Tribunal shall not consider a complaint under this section unless it is presented to the Industrial Tribunal before the end of the period of three months beginning with the effective date of termination or within such further period as the Tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of the period of three months".

The dismissals in the Kelly case had been in June 1986. The amendment had first been sought in February 1987. If the time-bar applied to the proposed amendments and if the "reasonably practicable" test was not satisfied then the amendment was plainly barred and that had been the conclusion of the majority at the Industrial Tribunal. The Employment Appeal Tribunal set that decision aside. In the Court of Appeal Lord Donaldson referred back to the Industrial Tribunal having guided themselves by reference to Cocking -v- Sandhurst Ltd [1974] ICR 650; he described the essence of that case as being that (para 9, page 223):-

"In deciding whether or not to exercise their discretion to allow an amendment, a Tribunal should in every case have regard to all the circumstances of the case. In particular they should consider any injustice or hardship which may be caused to any of the parties including those proposed to be added if the proposed amendment were allowed, or as the case may be refused".

Then at para 12, page 224 Lord Donaldson continued:-

"There is very little [in the reasoning of the Industrial Tribunal] which would 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?".

He took the view that the injustice of disallowing the amendment would be "absolutely overwhelming" to the employees (some 80-100 men were involved) but that the disadvantage to the employer was not so apparent. Lord Donaldson continued (page 224 paragraph 13):-

"The Employment Appeal Tribunal took the view that the [Industrial] Tribunal may well have misdirected itself in the emphasis that it gave, or appeared to give, to the time limits laid down by Parliament in a different context and with that I would agree. It seems to me that there is sufficient evidence here that the [Industrial] Tribunal probably misdirected itself for us to affirm the decision of the Employment Appeal Tribunal setting their decision aside".

The other two judgments were concurrences and the Court of Appeal remitted the question of the amendment to another Industrial Tribunal to look at the matter in the light of its judgment.

The case is puzzling. It seems the Employment Appeal Tribunal concluded only that the majority in the Industrial Tribunal "may well have misdirected itself", not usually, we would think, a conclusion powerful enough to justify the EAT setting aside an exercise by an Industrial Tribunal of the discretion conferred upon it by the legislature. Further, the Court of Appeal concluded only that the Industrial Tribunal had "probably misdirected itself". However, more importantly for our purposes, the short-coming identified by the Court of Appeal in the majority's decision in the Industrial Tribunal was that the Industrial Tribunal could not be seen adequately to have raised and to have answered questions posed by the line of cases begun by Cocking -v- Sandhurst Ltd supra as to relative injustice and hardship upon the granting or refusal of the amendment. Cocking -v- Sandhurst Ltd did involve an amendment in the context of a statutory time-bar but gave rise to very different considerations. An employee there had presented a complaint for unfair dismissal within time but named the wrong employer as his employer, naming the subsidiary rather than the parent company. After the expiry of the time-limit (then only 4 weeks) he presented a second complaint and this time named the right employer. The Industrial Tribunal in effect stopped both from proceeding further; the first had the wrong party and the second was out of time. The National Industrial Relations Court allowed an appeal. It held that the first complaint, having been in time, had to be ruled upon; the claim was against the employer and was in time and the mere misnomer could be cured by amendment. At p. 656 the NIRC gave general guidance beginning:-

"In every case in which a tribunal is asked to amend a complaint by changing the basis of the claim or by adding or substituting respondents they should proceed as follows".

The NIRC then set out an itemised 7-part list. So far as concerned cases in which the time-bar might be relevant the NIRC said, at p. 657:-

"(3) ... the Tribunal should ask themselves whether the unamended originating application was presented ... within the time limit appropriate to the type of claim being put forward in the amended application.

(4) If it was not, the tribunal have no power to allow the proposed amendment.

(5) If it was, the Tribunal have a discretion whether or not to allow the amendment."

When, in its numbered paragraph (7), NIRC added the passage which is cited at paragraph 9 of Kelly it was dealing only with cases in which, they having survived the point raised in (4), they were cases of a discretion being available under (5). Cocking not only does not say that a discretion as to amendment falls for exercise even where the time-bar applies and does not describe how the discretion is then to be exercised but in terms it says that in such a case - (4) above - "the tribunal have no power to allow the proposed amendment". How, then, had the Court of Appeal in Kelly been able to put to one side the question of the time-bar? The answer appears at page 224 paragraph 10 where Lord Donaldson said:-

"Now, 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-bar which is laid down for the lodging of an initial application for compensation for unfair dismissal is contained in Section 67 (2) ..."

which he then cited in full. In fact, as will have been seen, Section 67 (2) makes no reference to "the lodging of an initial application" but rather speaks of "a complaint" being "presented". We have not been referred to any other authority on the subject but in our judgment a "complaint" can be as much "presented" to an Industrial Tribunal by way of an amendment adding a claim which is or is analogous to a fresh cause of action as it is "presented" by its being a feature of the original IT1. Indeed, if that were not the case there would be no provision directly relating to the later introduction by way of amendment of causes of action already statutorily barred. Such a consequence might encourage delay and also the invention of other complaints (not time-barred, albeit complaints improbable of success) intended as mere vehicles for later amendments which would then introduce the real complaint which was otherwise barred. The relatively cut-and-dry operation of Industrial Tribunals ruling upon out-of-time complaints (including sex discrimination, race discrimination and disability discrimination as well as unfair dismissal) would be supplanted by lengthy and expensive examinations of, for example, whether the original claim had been abusive and merely intended as a vehicle for the later hoped-for amendment and by considerations of the relative hardships and injustices attendant upon granting or withholding leave to amend in each particular case. In our judgment the legislature, in using the broad term "presented" rather than its laying down of a time limit applicable only to the lodging of an initial application, has deliberately chosen not, so far as concerns the time-bar, to distinguish between the making of a claim from the beginning or, for example, making it by way of counterclaim or by way of later amendment.

The word "presented" is used not only in Schedule 3 but also in Section 8 (1) and (2). If, in Schedule 3, it referred only to the introduction of a claim by way of an Originating Application then it would be, at lowest, arguable that the word must surely have meant the same in Section 8. If that were right then one could never have a disability discrimination complaint other than one expressed in an Originating Application. Any other type of introduction of a complaint, - for example, counterclaim or amendment, - would, on that construction, not have been "presented" to the Industrial Tribunal within Section 8 (1), nor could the Industrial Tribunal grant relief upon it under Section 8 (2). Indeed, if to "present" meant only "to apply for by way of Originating Application" then the Court of Appeal in Kelly could only have reversed the Employment Appeal Tribunal and have upheld the majority of the Industrial Tribunal in that case.

A further difficulty with Kelly is that if there was, relative to an introduction of a complaint way of amendment, no statutory time-bar at all (which the Court of Appeal does not in terms say) then the majority in the Industrial Tribunal in that case would have been wrong not merely as to "the emphasis that it gave or appeared to give, to the time limit laid down by Parliament in a different context" but would have misdirected itself by paying regard, in the exercise of its discretion, to a statutory time-bar which, if the reasoning of the Court of Appeal was right, was totally inapplicable.

It will have become plain that we have grave doubts about Kelly. It is, however, not for this Tribunal to say that Kelly is wrong but we are entitled to say that we shall not adopt its reasoning, deriving from Section 67 (2) in the 1978 Act and from the misnomer in Cocking supra, to the case before us involving Schedule 3 para 3 of the Disability Discrimination Act 1995 which, unlike Cocking, involves no mere misnomer but the introduction of a new form of claim. In our judgment where the statutory three months has expired and where an Industrial Tribunal is unable duly to conclude that it is just and equitable to extend time under para (2) then the presentation of a complaint is as totally barred if it is sought by amendment as it would have been had it been sought then to be made by an Originating Application (although, of course, the fact that there are existing proceedings may feature largely in the consideration of whether or not it would be just and equitable to extend time).

We are emboldened in this view of Kelly by some further considerations. Firstly, no case in which Miss Bather's construction has been adopted has been shown to us, notwithstanding that Kelly is 10 years old. Secondly in Selkent Bus Co Ltd -v- Moore [1996] IRLR 661 the Employment Appeal Tribunal (Mummery J., President, Mr Dawson and Mr Manners) were plainly intending to give general guidance when they turn - see paragraph 18 page 663 to summarising:-

"... Our understanding of the procedure and practice governing amendments in the Industrial Tribunal".

Despite that, Kelly was not mentioned at all and, at paragraph 23 of the decision of the Employment Appeal Tribunal they say:-

"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 1978 Act."

Their comment a little later that there were no time limits laid down in the rules for the making of amendments was under a different heading. That later comment may have been doing no more than mentioning (as was the case under the then-applicable High Court rule - RSC O. 20 r. 5) that in point of jurisdiction amendments may, with leave, be made at any stage of the proceedings. As the cases of statutory time-limits had been dealt with under another heading the later comment is likely to have been dealing only with cases where the statutory time limits did not apply at all or were proper to be extended in accordance with the justice and equity of the case or where the "reasonable practicability" test or whatever other test that was applicable to the particular case was satisfied. We cannot read the later comment as a licence, at a Tribunal's discretion, to override a statutory time-bar otherwise applicable.

Thirdly, Miss Brown for the employer drew our attention to a transcript of Bryant -v- The Housing Corporation (unreported) in the Court of Appeal on the 21st May 1998. There, again, the Industrial Tribunal had been reversed by the Employment Appeal Tribunal. Mrs Bryant had claimed, inter alia, for unfair dismissal and sex discrimination. The sex discrimination complaint was outside the three-month time limit and the Industrial Tribunal struck it out upon that ground. The day after that hearing before the Industrial Tribunal Mrs Bryant's advisers wrote a letter headed "Application to amend the Originating Application" and urged that the material Mrs Bryant had already alleged in her Originating Application was sufficient to make out a case for victimisation under Section 4 (1) of the Sex Discrimination Act. The Chairman refused "the application" (which Buxton L.J. in the leading judgment in the Court of Appeal described as ".... properly meant, the amendments specifically to allege victimisation") on either the sole or a principal basis that it was out of time, The Chairman of the Industrial Tribunal had said:-

"The case as pleaded reveals no grounds for such a claim. The application is out of time and it is not just and equitable to extend the time limits".

Kelly was twice referred to in the leading judgment in the Court of Appeal given by Buxton L.J. (albeit not on the point which Miss Bather relies upon). Buxton L.J.'s judgment consists largely of a scrutiny and rejection of the reasoning of the Employment Appeal Tribunal which had reversed the Chairman of the Industrial Tribunal but it would hardly have been likely, if Miss Bather's argument based on Kelly were correct, that the Court of Appeal would have restored the decision of the Industrial Tribunal, the central point of which was that the application to amend was out of time under the statute. Peter Gibson L.J. said that the Chairman's decision had not been shown to have involved any error in law and Nourse L.J. agreed with both judgments given in the matter.

Miss Bather does not resist that the amendments here sought represent the addition of a new cause of action or at any rate a new claim analogous to a new cause of action. Nor does she resist that on that basis the application was out of time under the provisions of the statute. If she is wrong in her argument based on Kelly then she can have no complaint when the Chairman in the case we are dealing with said that he considered:-

"That the key question arising is whether or not it could be said to be just and equitable to allow the amendment ...".

Nor does she, if she is wrong in her argument based on Kelly, have any real grounds for urging that the Chairman's exercise of the discretion in refusing an extension of time and in refusing the application made to him as to amendment could be set aside. Indeed, if Miss Bather's argument on Kelly fails we cannot see that the Chairman could have arrived at any conclusion than that at which he did in relation to the amendment.

However, we now turn to considering the case as it would be if we are wrong in our decision that the time-bar applied to the proposed amendment and that of itself it denied any discretion in the matter, at any rate when coupled with the decision (not challenged) that it was not considered just and equitable to extend time.

Had that been the case, contrary to our view of the matter, then we would accept that the paramount considerations were the relative injustice and hardship involved in refusing or granting an amendment - see Selkent supra at paragraph 24 page 664. Questions of delay as a result of consequential adjournments and additional costs, particularly where they are unlikely to be recovered by the successful party, would also be relevant in reaching a decision - Selkent supra. However, before we turn to the particular features of Miss Bather's argument it cannot be over-emphasised that we can only deal with errors of law. It is irrelevant if, had we been the Tribunal below, we would have concluded in the Appellant's favour. It is equally irrelevant if many or most Employment Tribunals would have concluded in the Appellant's favour. Where what is in issue is the Employment Tribunal's exercise of a discretion, as (if we are wrong about the time-bar) is incontestably the case here, an error of law is sufficiently demonstrated only if the Employment Appeal Tribunal is satisfied that the Employment Tribunal either took into account, in the exercise of its discretion, material which it should not have taken into account or failed to take into account material which it should have done or otherwise had come to a conclusion to which no Employment Tribunal properly directing itself on the law could have come. With such general considerations in mind we now turn to the particular headings under which Miss Bather argues that the Chairman's decision was in error.

She argues that the Employment Tribunal failed to consider the question of relative hardship and relative injustice consequent upon the granting or refusing of the amendment. As to that, the Chairman had said:-

"The Chairman has taken particular note of the requirement that all material circumstances should be taken into account, balancing the injustice and hardship to be suffered by refusing the application with that to be suffered by its grant."

Immediately before that citation he had referred himself to Selkent Bus supra. In the case before us the chief factors of hardship and injustice were so obvious as hardly requiring to be set out. The employee would be denied any complaint under Section 8 of the Disability Discrimination Act if leave were to be refused. On the other side, the employer would be denied an accrued defence to any claim under that Act if leave were to be granted. It is settled law in the Employment Tribunal field that one cannot conclude that a factor has not been in an Employment Tribunal's mind simply because it has not in terms been mentioned in the Tribunal's decision. Even more so there is difficulty in this case in asserting that the questions of relative hardship and injustice were not in mind when the Chairman in terms said they were. We would accept that many of the factors which the Chairman mentions in paragraphs 7, 8, 9 and 10 of his letter are factors relevant or more relevant to the "justice and equity" case for an extension of time rather than to relative injustice and hardship but the parties had agreed that both the "justice and equity" considerations and the question of the amendment should be run together. The Chairman had said in his letter:-

"The principal matter arising for decision was the application by Mr Harvey to amend his Originating Application by adding thereto a complaint under the Disability Discrimination Act 1995, an application opposed by the Respondents. Although the notice of this hearing suggested that the Chairman would consider first the amendment request and then go on to hold a Preliminary Hearing to determine whether or not it was in time, with the consent of both parties, the question of the amendment has been treated as embracing the time point. The Chairman considered it appropriate to take time for deliberation, recognising the importance of the point from the stand point of both parties".

Given that it was agreed that both points should be run together some intermingling of the considerations cannot fairly be complained of by the Appellant.

Next Miss Bather takes a point as to the overlap of issues between Mr Harvey's case as to unfair dismissal and his case, were it to be permitted to proceed, as to disability discrimination. We would agree that even under the unfair dismissal case alone questions will be likely to arise as to whether Mr Harvey's condition amounted to a disability within the Act and whether it was taken into account in his dismissal and whether, if it was, that was improper. But it appears to us that the Chairman took that factor into account. The Chairman recognised the overlap when he indicated that:-

"albeit not as a free-standing complaint, [Mr Harvey] will be in a position to invite the Tribunal to conclude that a reason for his selection/dismissal was one rendered unlawful by the Act and, therefore, as a factor pointing to unfairness".

The weight to be given to such a factor in the overall balance is very much a matter entrusted by the legislature of the Employment Tribunal. This argument does not, in our view, provide an example of something being omitted which should have been taken into account or as reliance upon something which should have been omitted.

Next Miss Bather argues that no delay would be caused in the overall conduct of the case if leave were to be granted for the amendment. However, the Chairman did not rely upon the amendment being likely to cause delay. There is thus nothing in the Appellant's favour in the point. In any event, we would be far less optimistic than Miss Bather might be as to whether delay would be likely to be caused. A Disability Discrimination Questionnaire has been requested. It has not yet been answered. Quite what, if any, further amendments it might lead to can only be guessed at. We would hesitate before feeling assuredly able to conclude that no delay would be caused if the new cause of action were to be added, although we reiterate that the Chairman does not seem to have regarded the possibility of delay as a factor against Mr Harvey.

Next Miss Bather argues that there is no significant prejudice to the employers if leave is granted. However, it is quite plain that if leave is granted then the employer loses what is at the moment a sound defence to what the Chairman called a "free-standing" claim for disability discrimination. It is not simply that the employer may be liable in respect of unfair dismissal for a larger sum than otherwise would be the case. The amendment adds a wholly new cause of action for direct discrimination leading to compensation, if it is successful, of a kind not possible in unfair dismissal cases. Injury to feelings, for example, can be compensated. It is even theoretically possible, however unlikely in practice, that there could be a claim for disability discrimination which could succeed even were the unfair dismissal claim to fail. We do not feel able to conclude that the case is one that is without significant prejudice to the employer but, more relevantly, we are unable to conclude that the Chairman gave too much weight to prejudice to the employers.

As for prejudice to Mr Harvey, he would lose the ability to recover any award for such compensation as is available to him only under the Disability Discrimination Act - for example, injury to feelings - but whether or not that particular head would be likely to be substantial we cannot guess. Mention has been made by Miss Bather (and the point appeared in the decision of the Chairman) of a possibility that somehow Mr Harvey stands to be denied a disability pension. We have quite failed to see how that can be said to have any real connection with the granting or withholding of leave to amend. We have not been shown the terms, nor was the Chairman shown the terms, of whatever scheme the employer has for disability pensions. It seems to us highly improbable that any liability to Mr Harvey under the scheme on account of his having some disability is related to whether or not he had made a timely or other complaint to an Industrial Tribunal of disability discrimination and was upheld. It could well be that had he made a timely complaint of disability discrimination which had been successful his approach to the trustees of the scheme would be facilitated but that is far from saying that his being denied a complaint to the Industrial Tribunal denies him a pension. We were not even told whether Mr Harvey had approached the trustees of the scheme on the ground that he had suffered some relevant disability. Moreover, the Chairman had the point in mind. It will be remembered that in dealing with Mr Harvey's reaction on learning, from the employer's IT3, that the employer had taken the view that a history of back disorder and corrective surgery had prevented Mr Harvey from undertaking the full duties of a working chargehand, the Chairman said:-

"That discovery was a matter of great concern to Mr Harvey. Not only did it confirm the suspicions formed at the time of his dismissal but it suggested that he may have been deprived of a right to a disability pension".

It may be that for the Chairman to have had that point in mind operated unfairly against the employers but it is hard to see how Mr Harvey can make any complaint on this score.

Then there is a complaint that the Chairman took into account delay in some manner unfair to Mr Harvey. The Chairman said he:-

"... takes particular note of the fact that it was only on the 16th April 1997 that Mr Harvey was confronted with evidence that he might have a complaint under the Act. He could not, reasonably, have brought his complaint before then".

The Chairman also had in mind that, thereafter, it was not until the 17th September 1997 that Mr Harvey sought leave to amend his complaint by adding the complaint of discrimination under the Act. Even supposing (as, under this part of the argument, we are supposing) that the expiry of the three months provided by the statute is not necessarily, even in the absence of an extension of time, a total bar, a delay between the 16th April 1997 and the 17th September - over 5 months - can fairly be labelled as serious unless explained. Miss Bather seeks to rely upon Mr Harvey suffering, she says, from depression in this period. The Chairman does refer to Mr Harvey suffering from depression as a result of the loss of his employment and his ability to secure alternative employment. He thus had the point in mind. The Chairman also referred to Mr Harvey's back problem plainly being a source of pain and discomfort to him and being a factor certain to have had an effect on his state of mind. These factors, therefore, were in the Chairman's mind and it cannot be said that he has given them so much less weight than should fairly have been given to them as to make his exercise of his discretion an error of law. Indeed, so far as concerns depression, the Chairman's conclusion seems perhaps to have been more favourable to Mr Harvey than the evidence might have suggested. The only evidence Miss Bather has shown to us as to depression was a letter of the 9th March 1998, shown also to the Chairman, from Mr Harvey's General Practitioner. It does not speak of clinical depression but of "a decline in mood bordering on depression", nor does that letter in terms relate that decline in mood to the period between April 1997 and September 1997. The letter said that that decline in mood had had an adverse effect on Mr Harvey's rehabilitation and decision making but it does not say that either of those disadvantages was present in the period we have mentioned. If that letter was the only medical evidence (and, we reiterate, it is the only medical evidence mentioned to us as having been before the Chairman) then it manifestly does not say that at any time in the period between April 1997 and September 1997 Mr Harvey was not in a fit state to manage his affairs properly, nor that he was not fit enough to seek advice nor that he could not have taken advice and have lodged or procured the lodging of the claim for disability discrimination which he now seeks to add by amendment. Given, in particular, that the Chairman in terms mentions depression, we cannot see Mr Harvey's medical condition as leading to any argument that the Chairman exercised his discretion without taking into account material in Mr Harvey's favour which he should have done.

Lastly, of Miss Bather's principal complaints, she argues that the Chairman took into account in his paragraph 11 a factor which should not have been taken into account. What the Chairman there says, part of which we have already cited, is as follows:-

"The Chairman is reinforced in his view by the fact that, as acknowledged by Mr Clarke [the Employer's Solicitor], Mr Harvey may place reliance, at the forthcoming hearing, on such inconsistency as has emerged between the reasons for dismissal as given at the time and as have subsequently emerged. Further, albeit not as a free-standing complaint, he would be in a position to invite the Tribunal to conclude that a reason for his selection/dismissal was one rendered unlawful by the Act and, therefore, as a factor pointing to unfairness".

We understand the Chairman there to be saying, in effect, that to exclude the amendment would not be quite as grievous to Mr Harvey as it might otherwise have been as in any event he will still be able to urge, in his unfair dismissal claim, that disability was included in the reasons for his dismissal and that his selection for redundancy or dismissal was unlawful on that account. That, it seems to us, is a factor which the Chairman was entitled to take into account. In any event, as the quotation indicates, it merely "reinforced" the Chairman in a view at which he had already arrived. The weight to be given to such a consideration is, again, very much best left to the Chairman himself.

Even if, as, at this point in the argument, we are assuming to be correct, a balancing of the injustice and hardship to be suffered by refusing the application on the one hand and upon granting it on the other was the chief consideration, we accept Miss Brown's argument that the Chairman did, indeed, conduct such an exercise. In a passage we have already cited he indicated that he had taken particular note that all material circumstances should be taken into account in such a balance and when, later, in his paragraph 10, the Chairman said "The Chairman regards the balancing exercise as a difficult one but he is influenced particularly by the following matters" he was plainly referring back, as Miss Brown argues, to the balancing exercise that he had referred to, that between the respective injustice and hardship consequent upon granting or withholding leave. Miss Brown also points out, correctly, that when the Chairman set out the factors by which he said he was "particularly" influenced, he was plainly not to be taken to be setting out every factor which had had any influence upon him at all.

We have, we think, examined the Chairman's decision in the light of every principal objection raised in Miss Bather's argument on this part of the case. We do not feel able to say that the Chairman erred in law; on the assumption that, notwithstanding the time-bar, a discretion nonetheless was available to him, we have not found that he took into account to any material extent anything which he should not have taken into account nor has he, in our view, omitted any consideration which he should have taken into account. As we have already noted, the weight to be given to the individual considerations is best left to the Chairman; we are not satisfied that in the exercise of his discretion he erred.

Our primary view is that the Employment Tribunal, having duly decided that Mr Harvey's new claim was out of time and that the time would not be extended, had no discretion to admit the amendment. If our primary view is right then the Employment Tribunal reached the only conclusion open to it. If, however, we are wrong in our primary view and if, therefore, the Employment Appeal did have a discretion then for the reasons we have given we are unable to upset its exercise. Either way we must dismiss the appeal.