United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MS J EADY (of Counsel) Messrs Thompsons Solicitors Richmond House Rumford Place Liverpool L3 9SW


 


JUDGE PETER CLARK:

1. This is an appeal by Mrs Ryan and 120 other cleaners who, prior to 23rd October 1992, were employed by the Aintree Hospitals NHS Trust ['the Trust'] to work at Walton Hospital, Liverpool.
2. On that date the cleaning services at the hospital were contracted out to the first respondent, Taylorplan Ltd. The applicants then continued working at the hospital in the employment of Taylorplan.
3. On 15th January 1993 they presented Originating Applications to the Employment Tribunal, seeking a declaration as to their particulars of terms and conditions of employment with Taylorplan and complaining of unlawful deductions from their wages. They contended that the terms and conditions under which Taylorplan were prepared to employ them were less favourable than those enjoyed with the Trust. They did not then complain that they had been unfairly dismissed by the Trust in circumstances where Taylorplan, as transferee was liable to compensate them for such unfair dismissal.
4. Taylorplan defended the claims on the footing that no relevant transfer had taken place. That contention was rejected, first by the Employment Tribunal, then by the EAT, and finally by the Court of Appeal when leave to appeal was refused on 4th October 1995.
5. The subsequent history of these proceedings is helpfully set out in the detailed skeleton argument submitted by Ms Eady. We are indebted to her for her careful analysis of the procedural background and the issues sought to be raised in this appeal, which comes before us at a preliminary hearing against a decision of the Liverpool Employment Tribunal promulgated on 24th May 1999, refusing the applicants' application to amend their form IT1's to add a complaint of unfair dismissal in the light of the final resolution of the Wilson/Meade and Baxendale litigation by the House of Lords. [1998] IRLR 706.
6. Without wishing to oversimplify the issues in this appeal, we would identify the following points which, we think, are at the least arguable:

(1) whether the tribunal erred in treating this application to amend as one falling within the third, rather than the second category of case, following the classification suggested by the Editors of Harvey at section T paragraph 311.03.

(2) as a consequence, whether the tribunal was wrong to base their decision on the approach taken by the Court of Appeal in Biggs v Somerset County Council [1996] IRLR 203, a case in which the applicant, a part-time employee, did not present a claim of unfair dismissal immediately following her dismissal in 1976, but did so following the House of Lords ruling on part-time workers' qualifying period of service in R v Secretary of State for Employment ex parte Equal Opportunities Commission [1994] IRLR 176. It was there held that it was reasonably practicable for the applicant to present her claim within time; as opposed to the Court's decision in Jesuthasan v Hammersmith & Fulham London Borough Council [1998] IRLR 372, where again a part-time worker, the applicant, was permitted to add claims of unfair dismissal and redundancy to a claim of racial discrimination presented within time, relying on the EOC case, some two years after dismissal.

(3) whether the tribunal were wrong, in carrying out the balance of hardship exercise, to take into account the fact that two witnesses whom Taylorplan indicated they might wish to call in support of an ETOR defence, were unable to give relevant evidence as to the Trust's reasons for dismissing the applicants.

7. In addition to those points, Ms Eady has, very properly, this morning drawn our attention to an unreported decision of this tribunal, Lindsay J presiding, in Harvey v Port of Tilbury London Ltd (EAT/663/98 – 12th May 1999). Without going into that very full judgment in detail, for present purposes a question arises as to the proper approach to be taken in applications for leave to amend and, in particular, whether the Court of Appeal decision in British Newspaper Corporation Ltd v Kelly [1989] IRLR 223 and its reasoning, should be applied in the lower tribunals. Again, that is a matter which we think ought to be ventilated at the full appeal hearing.
8. We should emphasise that we have made these points in an attempt to assist the division of this tribunal which hears this full appeal, and because this hearing is strictly ex parte. We should not be taken to be limiting the argument for the appellant/applicants, nor, indeed, the respondents in any way. The appeal will proceed as presently constituted.
9. Although there are two respondents to the appeal, Taylorplan and Initial Healthcare Services Ltd, who picked up the cleaning services contract at a later date, we understand that the submission on behalf of the respondents are likely to dovetail and, in these circumstances, we think the correct time estimate is one of one full day. We shall classify it Category A. There will be exchange of skeleton arguments between all three parties with copies to be lodged with tribunal, not less than 14 days before the date fixed for the full appeal hearing. No further directions are required.