United Kingdom Employment Appeal Tribunal

APPEARANCES

 

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


 


MR JUSTICE NELSON: This is a preliminary hearing in a case where the application by the Applicant to amend the Originating Application to raise an allegation of sex discrimination was refused by the Tribunal.

1. The Appellant comes before this Tribunal today represented by Mr Wilson who submits that the Chairman in refusing the amendment fell into error. The ways in which he fell into error in making his decision were in brief summary these. That he failed to take account of the underlying merits of the case, the essence of which is that the punishment meted out for the disobedience of orders, which the Appellant was found guilty of in her conduct as a police officer, was such that other officers, male officers, were only fined or given lesser punishments whereas she, who did not have a bad disciplinary record otherwise, was required to resign, failing which she was told that she would be dismissed. The merit of the potential claim was not raised by the Chairman of the Tribunal or considered at all.
2. Secondly, it is said, there was no consideration by the Chairman of the prejudice to the Appellant in losing the opportunity to pursue what might be a valid claim, as opposed to the prejudice to the Respondents which would on any basis, it is submitted to us, not be substantial. Not be substantial, Mr Wilson submits, because it would be the same prejudice as the Respondents would have faced had the claim been made in time. The reason for that is that on the basis of his submissions the time for submission of the claim of the Appellant only expired on 6 March 1999 and was therefore only a matter of weeks out of date. Even if alternatively, it was some 18 months out of date, the time having commenced to run on 17 December 1997, the same would apply and the reason for that is that there was a full internal enquiry which went to appeal, hence the documentation must exist and be there.
3. Furthermore, the attitude of the Respondents to the application for leave to amend to add a claim for sex discrimination by asking for Further and Better Particulars also exemplifies the fact that they did not regard themselves as being seriously prejudiced. None of these matters were properly weighed, one against the other, by the Chairman of the Tribunal in considering what he had to consider, namely whether it was just and equitable to allow the amendment in all the circumstances. It is further submitted he did not take into account the effect of the circumstances then pertaining in the personal circumstances affecting the Appellant such as the sad death of her mother or, indeed, other problems that she faced in respect of her children; those were not properly taken into account by him. Furthermore, he took into account that the Appellant was advised by the Police Federation and then by respectable firms of Solicitors without noting the fact that a complaint had been made against the first firm of Solicitors for her, acting in a manner other than they should have done as professional advisers, a complaint which was subsequent to his hearing in part upheld by the investigating panel for Solicitors. Finally, that he did not take into account the fact (and did not mention at all) that the Applicant (as she then was) when requested to give Further and Better Particulars of her claim for sex discrimination had in fact done so.
4. Those are all powerful reasons, Mr Wilson submits, for saying that the Chairman was in error in failing to take matters into account that he ought to have done, failing properly to weigh matters that he ought to have weighed and that, therefore, leave for a full hearing should be granted. We agree with those submissions. We are satisfied that the Chairman did fall into error in those respects and that therefore there ought to be a full hearing.
5. However, we are also satisfied that on the face of it, the correct order to make on the basis of the submissions that we have heard so far, would be simply to grant the amendment. This Tribunal does not have, we are satisfied, the direct power to make such an order at this stage but the course we propose to take is to indicate that that is the order regarded by this Tribunal as being the appropriate order to make and then to give the Respondents 14 days in which to attend and show cause as to why that should not be done, if they wish to do so and put matters before the Tribunal. Of course their arguments have not been considered because the matter is ex parte, but if they do wish to be heard then this Tribunal will obviously consider the matter entirely afresh. If they do not wish to take an opportunity to be heard inter partes on the matter, then the order can be made and become final with the effect that the amendment is granted.
6. The power of this Tribunal is to give directions in circumstances such as these and those are the directions we give, namely that the Respondents have 14 days in which to attend or give notice of their intention to attend the Tribunal in order to bring forward arguments to submit that no order to amend should be made. If they do not wish to take advantage of that opportunity to be heard inter partes, then the sensible course is for the order then to be made at the end of that period.
7. If the Respondents decide that they wish to have the matter dealt with inter partes then they have 14 days to raise the matter and thereafter, the normal time limit of 7 days in which to submit skeleton arguments and serve them on the Tribunal and the opposite party.