United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR SHELDON (of Counsel) Appearing under the Employment Law Appeal Advice Scheme


 


MR JUSTICE NELSON: This is a preliminary hearing to decide whether or not there is an arguable point of law justifying a full hearing taking place.

1. The arguments put forward on behalf of the Appellant are short. They are that, when the complaint was made by the Applicant to the Employment Tribunal, he sought as a remedy the repayment of the sum of £814.95, which was said to have been a deduction that should not have been made from his wages. He carried on:

"I only wish to recover this money and take no other action".

He went on to say:

"I tried to resolve this with my employer but had to leave in December 1998 as the situation was getting intolerable".

2. Box 10, which is the box on the IT1 form for unfair dismissal, was left blank. The only proper and sensible interpretation of that, for anyone having to meet it, was that although the circumstances might in themselves have given rise to the knowledge on the part of the employer that a claim for constructive dismissal might arise, the Applicant was seeking to make a claim only in respect of the repayment of wages and the recovery of those and no other action.
3. During the course of the hearing the Tribunal, of its own motion, gave leave to amend to the Applicant to add a claim for unfair dismissal. This was not sought by the Applicant himself, nor was it in any way dealt with by him. It is not said, in fact, in the tribunal decision what the Applicant's response to that was or not.
4. The Respondent was asked whether or not he would be prepared to accept such an amendment or whether he wanted an adjournment and, having considered the matter, decided that he would not ask for an adjournment.
5. It is said, in paragraph 15 of the decision, that the Respondent appreciated that the Applicant was making an allegation of constructive dismissal and accepted before them that he had made a conscious decision not to discuss the matter with the Applicant at the time or seek to understand the basis of the Applicant's case that he was being "forced out" of his employment. He left the matter to the warehouse manager and did not speak to the Applicant at all about it. This indicates that the Respondent knew perfectly well that constructive dismissal might be something that could have been alleged. On the other hand, he knew also from the IT1 that it was not in fact being alleged and that, in those circumstances, the only claim he thought he had to meet, when he went to the Tribunal, was one in respect of the wages alone and not unfair dismissal.
6. It is submitted to us that in those circumstances he was placed in an invidious decision, having made the decision to resist the matter without legal assistance, the claim being some £814, he then found himself in a situation where, although he might wish to call further evidence, the day had already partly passed, the amendment being granted at the conclusion of the Applicant's case and it is not surprising that in those circumstances he made a decision to accept the matter and not ask for an adjournment. That, however, was an inherently unfair result because it did not enable the Respondent the true opportunity to meet the claim with which he was now, at the behest of the Tribunal, faced.
7. The way that the matter is addressed to us is now on two grounds. Firstly, it is said, that there was no power on the Tribunal to permit an amendment at all in circumstances such as these, given that the Applicant had specifically elected not to bring a claim for unfair dismissal and secondly, because no application had been made to amend by the Applicant himself.
8. The second ground is that the decision to deal with the matter, by way of an amendment, was wrong in the circumstances and cannot be said to be rational, given the difficulties it placed the Respondent in, and that in the circumstances no amendment should have been granted.
9. We are quite satisfied that it is not properly arguable that the Tribunal had no power to amend at all in those circumstances. We are, however, equally satisfied that it is arguable that such a power should only be exercised very reluctantly and, if it is so exercised, should be exercised on the basis that an adjournment, if any further evidence is required, will have to be granted. That did not occur here. The Respondent, it is said in his own grounds, is left with a sense of unfairness and we consider that it is at least arguable that the decision to allow the amendment in the circumstances facing the Tribunal was not appropriate and we therefore give leave upon that basis. This is plainly a Category C case with a time estimate of two hours.