United Kingdom Employment Appeal Tribunal

APPEARANCES

EAT/902/00 & EAT/1379/00

 

For the Appellant EAT/903/00 For the Appellant	MR K BRYANT (of Counsel) Appearing under the Employment Law Appeal Advice Scheme MR A BARI (Father)


 


JUDGE J ALTMAN:

1. This is an appeal raising four matters. The first is an appeal from a direction of the Employment Tribunal sitting at Stratford on 7 June 2000, when the Chairman made an Order that the Appellant should pay £100 towards the Respondent's costs to date.
2. The second is an appeal from the decision of the same Tribunal on 16 May 2000, that the Tribunal does not have jurisdiction to hear the Applicant's ordinary unfair dismissal claim because the Appellant did not work for a year for the Respondents. The third is the refusal to permit an amendment to allege breach of trust and confidence and finally, there is a failure to order Further and Better Particulars pursuant to the request of the Appellant allegedly of the 11 September.
3. Dealing with each in turn, the Order for Costs seems to have come about in the following way. On 26 May 2000 the Employment Tribunal wrote to the parties with a number of directions and in section B9 the following observation was made:

"There has been poor compliance with the orders of the Tribunal on behalf of the Applicant to date and the Respondent is, legitimately, offended by this. The Tribunal drew to the attention of the Applicant's representative the importance of complying fully and timeously with the directions and orders of the Tribunal and explained that failure so to do would be regarded as misconduct of the sort likely to attract an order for costs."

4. Thereafter, certain particulars were furnished by the Appellant in a letter dated 31 May but on 5 June a reply was sent from the Tribunal threatening a strike-out of the Originating Application because of the failure to comply with the directions, particularly those recorded at paragraph 3, which included some of the particulars. That was followed, even though that letter gave seven days to show cause why there should not be a striking-out, only two days later by an Order made in the following terms:

"The Chairman has determined that the proper course is to order that the Applicant should pay £100 towards the Respondent's costs to date (a modest sum in consideration of the fact that the Applicant is a schoolboy and presumed not to be in gainful employment)."

5. It is suggested to us, and we agree, that it is arguable that that order was unheralded save in the most general terms, and it is pointed out to us that the order for provision of particulars was not an "unless" order. Failure to comply never had the specific sanction attached to it. Further, it is arguable that the Employment Tribunal had no evidence that the Respondents had incurred costs. They were not engaging professional representatives. There was no investigation of the Appellant's means, save that he was a schoolboy and, perhaps most important, it is arguable that the Tribunal erred in law in failing to give the Appellant the opportunity to show cause why such an order should not be made, before making such an order.
6. We give leave for the matter formally to proceed to a full appeal hearing on that issue. However, we are mindful of the fact that such appeal could not take place before 12 December, listed for the main hearing of this claim, and we are also mindful of the enormous public costs involved in that matter being the subject of an appeal in the Employment Appeal Tribunal.
7. Assuming that the interests of justice can include the incurring of substantial sums of public money, we would invite the Employment Tribunal at the main hearing to consider whether they would wish to review their decision such as, for instance, to substitute an order that the Appellant should have an opportunity to show cause why he should not pay such an order and to give him the opportunity to address it.
8. We are not expressing a view as to the merits of that course, or the outcome of any such review, but it seemed to us a device that may avoid the unattractive proposition of this matter having to be dealt with on an isolated occasion at some other time and itself subject to substantial costs.
9. The next matter related to an amendment to add an allegation of breach of trust and confidence (on page 4 of the bundle). On 25 September 2000 Mr Duncan, sitting at Stratford, refused to admit an amendment on the ground set out in that paragraph. On 14 August the Appellant had given leave to amend the Originating Application to include such a claim and there was an order that it must be served within 14 days of receipt of the letter. Of course it does not appear, having looked at that letter, that the leave was conditional upon compliance with the time limit.
10. Furthermore, whilst it is true that the time limit was not complied with, the Appellant says that he personally did not receive the letter until 31 August, so that there was an argument that the amendment was in time by being handed in on 14 September. Be that as it may, the learned Chairman then observed that not only did there appear to be a breach of the time limit but that the law did not support the contention that the manner and reason for dismissal could result in damages covering losses beyond any notice period.
11. It seems to us arguable that that is an incorrect statement of law. Of course in most wrongful dismissal cases, the breach of contract is the failure to give notice and therefore the only damages are the loss of notice pay. But, for instance, where there is a contractual disciplinary procedure which is not followed, there may be damage suffered by the loss of employment during the period that procedure would have been pursued and before notice is given. Similarly, it may be that where there is a breach of a term of trust and confidence which, if not broken, would have led to an employer taking longer before reaching a decision to dismiss, it may be arguable that that too could sound in damages.
12. Accordingly, it seems to us, it is arguable first that there was no failure to provide the amendment within time, secondly, that the Tribunal erred in considering that there was no legal basis for the amendment and thirdly, that the amendment should not have been struck out without this having been preceded by a time limit for compliance which was stated to be a prerequisite for the admission of such particulars.
13. Again, we would invite the Employment Tribunal to consider whether they would wish to review their decision in relation to that, in advance of the appeal hearing, so that at least it can be considered on the day of the hearing. If that is not an appropriate device in the view of the Employment Tribunal, they may even wish to hear the issue and reach a conclusion which is expressed to be conditional upon the outcome of any subsequent appeal.
14. Thirdly, we come to the request for particulars. A request was made for Further and Better Particulars to the Employment Tribunal and on 14 August the Tribunal, in accordance with usual practice as we understand it to be, declined to order such particulars to be furnished by the Respondents because the application to the Tribunal had not been preceded by an informal request to the Respondents direct. The Appellant complied with that and on 11 September he wrote to the Tribunal again enclosing a letter of 23 August demonstrating that he had requested from the Respondents the particulars and stating that he had had no reply.
15. We have seen the particulars listed and we have seen the Notice of Appearance which was in very general terms. Essentially the general basis of the application was a request for the particulars giving rise to the criticism of the Appellant's work, without which an Appellant would be unable to argue and prepare for a case before the Employment Tribunal. The phrasing of the request may have benefited from the assistance of a Chairman.
16. The Employment Tribunal do not appear to have given any direction upon that request, and it seems to us arguable therefore, that the Employment Tribunal has declined to make the order and certainly it is arguable that it erred in law in failing to address the application in time for the hearing. The same matter really applies here as it relates to the first matter that we referred to, that of costs.
17. We direct that this matter can proceed to a full hearing, if necessary, before the Employment Appeal Tribunal. However, it is obviously desirable that the December hearing of this application be not vacated and we would invite the Employment Tribunal to consider whether they would wish immediately to make an order in response to the Appellant's letter of 23 August, so that the Appellant can arrive either at the Tribunal even if only on the day of the hearing, in receipt of the necessary information.
18. Bearing in mind the scale and nature of this case, however, we would not imagine that the Appellant would have any cause to seek an adjournment of the main hearing, providing he was in receipt of the particulars, hopefully beforehand or at the very least on the day in advance of the hearing, with time to consider them before the hearing started.
19. The final matter that we have been asked to deal with is the appeal from the finding of the Tribunal on 16 May 2000, that the Tribunal does not have jurisdiction to hear the Applicant's ordinary unfair dismissal claims. This relates to the part of the decision which found that the Appellant did not have the necessary one year's service.
20. Before the Tribunal the Appellant produced statistics and presented an argument to show that the proportion of women who could comply with such a time limit was less than men and that therefore, they were discriminated against by the statutory requirement, with the result that that requirement is unlawful. If it is unlawful, it is argued, both men and women can benefit from that proposition because the unlawfulness must apply to both, so that a male with one week's service would become entitled to present a complaint, there being no time restriction.
21. Reference has been made to the famous case of R v Secretary of State ex parte Seymour Smith [2000] IRLR 263 and part of the decision of the Employment Tribunal was based on some statistics that the Appellant produced and today the Appellant's father, Mr Bari has produced statistics, which purport to bring up to date in the last three years the position, so that a view can be taken of the position in relation to service of less than one year and a comparable picture be presented.
22. It seems to us clear that the following propositions follow. First of all, the factual information was put before the Employment Tribunal. They made a judgment on the material before them which we maintain that, not only in relation to period of time, but in relation to the type of statistic, was much more limited than the Seymour Smith case and, it seems to us, that the Tribunal came to a conclusion on the material before them which they were entitled to come to.
23. Secondly, the material before us is in the nature of new evidence which was not before the Employment Tribunal. We know that, exceptionally and after hearing full argument, the Court of Appeal in the Seymour Smith case did agree to entertain new evidence, which had not been presented at first instance, but that was a special case and the quality of the evidence was much more extensive. Furthermore, it does not seem to us right in this case, bearing in mind all the circumstances, to give such leave. Furthermore, the approach of the Employment Tribunal on this particular issue was careful and analytical and dealt with a number of different arguments which they found pointed to the same conclusion and it seems to us that no point of law arises upon their conclusions. One can disagree with them but there is no point of law and we are also mindful, of course, that the House of Lords in the Seymour Smith case came to the conclusion on the basis of justification so that it is, it seems to us, unarguable that the Employment Tribunal erred in that respect. That aspect of the appeal is dismissed.
24. We wish to record that in relation to the other matters, we had the assistance of Mr Bryant, who has given of his time and considerable ability without charge, under the ELAAS Scheme. We and the Appellant have cause to be enormously grateful to him for his submissions which have assisted both.