United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR D IBEKWE REPRESENTATIVE PUBLIC TRANSPORT (STAFF) CONSORTIUM 31B MERVAN ROAD BRIXTON SW2 1DP
For the Respondent	MR D BROWN (COUNSEL) MS H GARNETT MESSRS BAXTER CAULFIELD SOLICITORS 13 STATION STREET HUDDERSFIELD HD1 1LY


 


HIS HONOUR JUDGE SMITH:-

1. Now we have got to deal with an Interlocutory Appeal that is made by the Applicant in proceedings pending before the Employment Tribunal, Ms Kaur and we have had the benefit of hearing from Mr Ibekwe on behalf of Ms Kaur in relation to the Interlocutory Appeal, and of hearing Mr Brown on behalf of the Respondents before the Tribunal, John Brierley Ltd.
2. The Appeal is against the decision of a Chairman of the Tribunal in Leeds which is to be found at page 4 of the bundle of documents in front of us and, it is a letter dated 11^th January of this year to Baxter Caulfield Solicitors.

"Dear Sirs

MS C K KAUR v JOHN L BRIERLY LTD

Your faxed letter dated 24^th December 1999 was referred to a Tribunal Chairman who has given directions as follows:-

Your amendment seeks to introduce a breach of contract claim. The Employment Tribunal has no jurisdiction in such a case if the contract is continuing. Accordingly your request for leave to amend to introduce a breach of contract claim is refused".

So that is the decision, and it is against that decision that this Appeal has been brought.

3. Now the position is that the hearing of the substantive complaint of the Applicant, Ms Kaur, against her employers, John Brierley Ltd, is due to be heard tomorrow so that we note straight away, that it is very late indeed in the day for this Appeal to be brought and that is so, despite the fact that the Chairman made his decision about two weeks ago. The history of the matter is this; that the Originating Application is made by Ms Kaur against the employers John Brierley Ltd and is based on a claim for unlawful deductions from her pay under section 13 and section 24 of the 1996 Act.
4. Looking at the particulars of claim, which were enclosed with the Originating Application, there is a reference to a claim based on this; that there have been unlawful deductions made from the wages of the Applicant pursuant to a breach of agreed terms on the part of the Respondent and contrary to section 13 of the 1996 Act, and then there is a reference to an agreement in writing under which she had been employed in November 1993, as a beamer, and then a reference to the terms of that employment and then, at paragraph 2D, the terms are set out that were applicable on 1^st October 1999, and then it is alleged that on the 1^st October there was the imposition of a unilateral variation and the variation is then set out, and it is alleged that there was no consultation over the variation and there was a protest and that the Respondent has failed to rectify matters or enter into negotiations and so the claim is made that the unilateral variations amounted to an unlawful variation and amounted to unlawful deductions being made from the Applicant's wages contrary to section 13. Then it is said that the Applicant claims that the Respondent refused to pay the Applicant as per the correct and contractually binding terms and instead has chosen to pay the Applicant upon the unlawfully varied terms, so there is claim for appropriate remedy, namely for unlawful deductions under section 24 and full particulars are going to be given of loss.
5. So that was the claim that was made and there is a substantial ground of resistance put forward - what the merits are, of course, we do not enter into - but there is a Notice of Appearance by the Respondents and there are various matters set out by the Respondents as justifying their conduct in relation to the matter, and ending up by saying that there has been full consultation over whatever has happened and that there have been no deductions from the Applicant's wages. She has not lost earnings, so it is alleged, and she is still working the basic 40 hour week as she was on before the shift patterns changed and has suffered no other loss. So there are all those issues that are joined in that way.
6. Now then, as of 20^th December 1999, as appears from the bundle, there was put forward an application to amend the Applicant's complaint. There was a letter in relation to that from the Union, PTSC, at page 12 in the bundle and annexed to the letter for consideration by the Tribunal was enclosed the amended particulars of the Applicant's claim. The amendments which were sought were to add a claim at 3B and 4(ii) of the Originating Application as follows:-

" b) The application equally claims that the unilateral variation referred to in para's 2(d –h) above, amounts to an unlawful variation of terms of service/contract tantamount to breach of contract and for which the respondent is liable for damages".

(ii) Damages for breach of contract pursuant Industrial Tribunal Extension of Jurisdiction Order 1994 [As amended by Industrial Tribunal Act 1996].

dated 20^th December 1999.

7. Now the way that the matter was dealt with was that the Chairman then invited the Respondents to make their representations in relation to the proposed amendment and the Respondents wrote to the Tribunal setting out their attitude to the application for leave to amend in their letter of 24^th December 1999 and what they said in that letter was this:-

"it appears to us that the Applicant is now seeking to introduce a completely new claim for breach of contract. Her claim was originally in respect of an alleged unfair deduction from wages".

They refer to Article 3 of the Extension of Jurisdiction Order and also to Article 7 which relates to a time limit from the effective date of termination of the contract and they go on to say:-

"Ms Kaur is still employed by our client and her contract has not been terminated. In our view, the tribunal does not have jurisdiction to entertain the proposed amended claim and accordingly we object to the proposed amendment".

8. What the Chairman then did was that, having in front of him the proposed amended Originating Application and the Respondent's comments in their letter of 24^th December, he then proceeded to arrive at his decision by consideration of those written representations on each side, so to speak. He did not hold an oral hearing, so he did not actually hear the parties or allow them to make oral representations to him but he reached his conclusion in the light of the written representations in the way which we have already referred to, that is to say by his letter of 11^th January.
9. Now in our judgment, the first thing we have to decide is under which Rule of the 1993 Regulations the Chairman was proceeding. Mr Ibekwe submits to us that he should have been considering the matter under Rule 6 of the Employment Tribunal Constitution etc Regulations 1993, Schedule 1. Rule 6 is concerned with this situation:-

"The Tribunal may at any time before the hearing of an Originating Application, on the Application of a party made by notice to the Secretary or of its own motion, herein determine any issue relating to the entitlement of any party to bring or contest the proceedings to which the originating application relates".

And then importantly sub-Rule (ii) of Rule 6:-

"The Tribunal shall not determine such an issue unless the Secretary has sent notice to each of the parties giving them an opportunity to submit representations in writing and to advance oral argument before the Tribunal".

So that had the Chairman been proceeding under Rule 6 there might well have been an argument for saying that he should have held an oral hearing before he made his decision.

10. We are quite satisfied, however, despite the advocacy of Mr Ibekwe that in fact when considering an application to amend, there is no doubt that the Tribunal is exercising its powers under Rule 13, not under Rule 6. Rule 6 is concerned with questions that go to jurisdiction arising from the terms of an Originating Application that has already been issued. Thus it might be concerned with the question of whether an Application was in time, for example, but it is not concerned with powers to amend an Originating Application. Matters relating to amendments are to be dealt with by the Employment Tribunal under Rule 13. That is clear in our judgement from the decision of the President, as he then was, in giving the decision of the Employment Appeal Tribunal in Selkent Bus Company Ltd v Moore 1996 ICR page 836, particularly at pages 842 to 844 inclusive.
11. In Selkent the Employment Appeal Tribunal gave very helpful guidance as to how the discretion of a Tribunal should be exercised in relation to applications for amendment and we really cannot improve in any way on the reasoning and guidance set out in that judgment relating to the procedure and practice governing amendments. It is clear from paragraph 1 of that summary that applications to amend Originating Applications are made under Rule 13 of Schedule 1 to the Regulations 1993, that it is a discretionary power, and that there is a wide discretion as to how the power is exercised. It must be exercised in a judicial manner i.e. in a manner which satisfies the requirements of relevance, reason, justice and fairness, and then very helpful guidance is given as to how to proceed in any given case. As it is pointed out by the Employment Appeal Tribunal in that judgment there may be very many different kinds of amendments thus particularly under (5)(a) at page 843where the Employment Appeal Tribunal point out that applications to amend are of many different kinds and conclude by saying:-

"The Tribunal had to decide whether the amendments sought is one of the minor matters or is a substantial alteration pleading a new course of action."

12. This was clearly an application for a substantial amendment by pleading a new cause of action and that falls to be dealt with under the procedure laid down at 3(b) of the guidance in Selkent. Where the amendment is arguable and is one of substance which the Tribunal considers could reasonably be opposed, the Tribunal should then ask of the other party whether they consent or whether they oppose and if they oppose it to state the grounds of opposition. In such cases the Tribunal would then make a decision on the question of amendment after hearing both sides, and then the party disappointed with the result might then appeal to this Appeal Tribunal.
13. In our judgment, that is the procedure which the Chairman followed here. He sought representations from the Respondents. He already had the nature of the amendment clearly in before him since a draft of the proposed amendment was in front of him. He was entitled to take into account the difficulties in the way of the application arising from the terms of Article 3 of the Extension of Jurisdiction Order which make it clear that a claim for breach of contract can only be made before an Employment Tribunal if the claim arises or is outstanding on the termination of the employee's employment, and he was, in our judgment, entitled to reach the conclusion that there would not be any jurisdiction to hear such a claim if the contract is continuing.
14. In our judgment, there is no way in which we can interfere with his decision. In our judgment, it does not have the result that it shuts the applicant out from bringing a fresh claim, should she be so advised to do, relying on breach of contract. It could not be said to be decisive in that regard and indeed Mr Brown, on behalf of the Respondents, has made it clear to us today that no such point would be taken and there is no question of the decision on the application for leave to amend being regarded as decisive in that way. We simply cannot interfere in our judgment with the decision of the Chairman who exercised his discretion as far as we can see properly in accordance with the Rules and accordingly, for those reasons, this appeal will have to be dismissed.