United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR DOUGHTY (Of Counsel) Appearing under the Employment Law Appeal Advice Scheme


 


JUDGE PETER CLARK

1. The Appellant, Mr Horsley, commenced these proceedings by an Originating Application presented to the Employment Tribunal on 4^th April 2000. He complained of unfair dismissal, wrongful dismissal (breach of contract) and disability discrimination on the part of his former employer, the Respondent, DFID. He there gave the dates of his employment with the Respondent as 6^th May 1999 until 6^th January 2000.
2. By their Notice of Appearance dated 17^th April 2000, the Respondent contended that

i) He had not completed one year's continuous service for the purposes of grounding the Tribunal's jurisdiction to entertain a complaint of unfair dismissal under The Employment Rights Act 1996 Section 108(1)

ii) There was no breach of contract

iii) He was not disabled within the meaning of the Disability Discrimination Act 1995

3. On 20^th June 2000, a Directions Hearing took place at the London (South) Tribunal before a chairman sitting alone, Mr John Warren. That Chairman identified the following preliminary issues to be determined at a hearing on 20^th September 2000

i) whether or not the Appellant had the right not to be unfairly dismissed, Section 108 Employment Rights Act 1996

ii) whether or not the Respondent was in breach of any term of the Appellant's contract

iii) whether or not the Appellant was disabled

He further gave directions as to medical evidence and disclosure of documents by the parties.

4. On 20^th September 2000, those preliminary issues came on for hearing before a full Tribunal, sitting at London (South) under the chairmanship of Mr C P Baron. By a decision with full reasons dated 23^rd October 2000 (the original decision), the Tribunal found the following material facts. That the Appellant's employment was in Ghana. It commenced on 6^th May 1999. On 6^th January 2000 the Respondent terminated the employment on three month's notice. Although on the face of the parties' Forms ET1 and ET3 it was agreed that the effective date of termination of the contract of employment was 6^th January 2000, before the Tribunal it was in fact common ground between the parties that the effective date of termination was 6^th April 2000, that is at the expiry of the three month notice period. The Tribunal went on to deal with the three preliminary issues as follows

i) The right not to be unfairly dismissed

5. The Appellant had less than one year's continuous employment for the purpose of Section 108(1) ERA 1996. However, at the hearing the Appellant sought to advance a case, raised in his witness statement for the first time, which was served on the Respondent shortly before the hearing, that the reason for his dismissal by the Respondent was an inadmissible reason, that is his making a protected disclosure contrary to Section 103(A) ERA 1996. There is no qualifying period for such a claim.
6. In these circumstances the Tribunal considered whether permission ought to be given to the Appellant to amend his Originating Application to add a claim of unfair dismissal under Section 103(A) ERA 1996. They declined to give that permission holding that

1) This was a new claim not apparent from the Originating Application

2) It was out of time and it was reasonably practicable for the claim to have been brought within time.

They therefore refused the Appellant's application to amend and held that the Tribunal had no jurisdiction to consider his claim of "ordinary unfair dismissal"

ii) Breach of contract

7. The Tribunal found

a) The disciplinary procedure relied upon by the Appellant was non-contractual

b) The performance review procedure was contractual but irrelevant since it could not extend the effective date of termination for the purposes of bringing an ordinary unfair dismissal complaint

8. The Tribunal added, in their written reasons, a point which had not been explored during the hearing, namely that since the ETI was presented on 4^th April, and the effective date of termination was 6^th April 2000, the claim for breach of contract was presented prematurely and the Tribunal had no jurisdiction to entertain it, see Capek v Lincolnshire County Council [2000] IRLR 590 (CA)

iii) Disability discrimination

9. The Appellant withdrew that claim by letter to the Tribunal dated 24^th August 2000. Accordingly it was dismissed on withdrawal.
10. The Appellant applied for a review of the original decision and a review hearing took place before Mr Baron's Tribunal on 16^th February 2001. By a decision, with what are to be treated as Extended Reasons, dated 14^th March, the Tribunal dismissed the review application (the review decision). In that decision the Tribunal considered the following issues

i) whether the public interest disclosure claim sought to be raised by the Appellant relied on the same facts set out by him in documentation attached to his form ET1; alternatively that it was just and equitable to extend time to allow him to pursue that claim. The Tribunal were not persuaded that the factual basis of that claim was raised in the form ET1.

ii) whether fresh evidence ought to be admitted. They decided not to do so. The evidence they found could have been obtained for the original hearing. In these circumstances they held that there were no grounds for a review.

11. Finally they returned to the point in Capek. It was submitted on behalf of the Respondent that since the decision of the Court of Appeal in that case went to the Tribunal's jurisdiction to hear a claim for breach of contract, the Tribunal could not avoid it. The Tribunal observed that, on reflection, perhaps the Tribunal ought to have, of its own motion, given notice to the parties of its intention to review it's decision in that respect. That was not done. It would be a matter for the Employment Appeal Tribunal to consider on appeal.
12. Mr Horsley has appealed against both the original decision (EAT/1482/00) and the review decision (EAT/863/01). Further, he seeks from us permission to adduce fresh evidence on appeal and for an order for further disclosure by the Respondent. That was the state of play before this preliminary hearing took place.
13. Today he has the advantage of representation by Mr Doughty, Counsel under the ELAAS pro bono scheme. Mr Doughty does not, on behalf of the Appellant, pursue his applications for further disclosure, nor for the admission of fresh evidence on appeal. Instead he focuses his submissions on two points of law. The first is in relation to the Tribunal's refusal to permit the Appellant to amend his Originating Application to raise the public interest disclosure reason for dismissal. As to that, we have been taken to a letter which the Appellant wrote to the Employment Tribunal on 20^th August 2000 in which he refers specifically to his concern that if he were to raise certain matters in these proceedings, then he would be subject to the Official Secrets Act and he there says that the Respondent had specifically warned him against infringing that Act.
14. Mr Doughty submits that the Tribunal failed to attach sufficient weight to that reason put forward by the Appellant as rendering it not reasonably practicable for him to have presented the complaint of public interest disclosure dismissal within the ordinary three month time limit.
15. That is not how we read the Tribunal's reasons for the original decision. It seems clear to us that the Tribunal took into account that matter when considering the overall question as to whether or not it would have been reasonably practicable for the Appellant to have raised that claim within the time. At paragraph 17 of their reasons they set out the Appellant's case and they say this

"In summary he said that his reasons for not having made reference to protected disclosure previously were his concern about the Official Secrets Act. He was not initially aware of the legislation concerning protected disclosures and he wanted to resolve matters with the Respondent amicably"

It seems to us that the Tribunal took all of those matters into account in reaching the conclusion that it was reasonably practicable for this complaint to have been lodged within time.

16. Having reached what we regard as a permissible conclusion on that aspect of the matter, it seems to us, bearing in mind particularly the approach of the Court of Appeal in Housing Corporation v Bryant [1999] ICR 123, that the Tribunal were entitled to reach the conclusion that this was not a proper case in which to grant permission to amend, bearing in mind that this was an entirely new cause of action not foreshadowed in any way in the Originating Application, nor indeed raised when the opportunity was presented at the Directions Hearing before Mr Warren. To have granted permission to amend would have caused the Respondent prejudice in that it would have been necessary for that part of the hearing, at least, before the Baron Tribunal to be adjourned so that the Respondent could deal with it properly. See also the approach of Mr Justice Mummery (President) in Selkent v Moore [1996] ICR 836.
17. The second point raised by Mr Doughty goes to the Tribunal's findings on the breach of contract claim. It seems to us arguable that the Tribunal first ought to have considered the jurisdiction point with the parties, giving both sides an opportunity to make submissions on the effect of the Court of Appeal decision in Capek, and secondly had they found that they had no jurisdiction because of the application, in so far as it related to a claim for damages for breach of contract that was presented prematurely, ought not then to have gone on to consider the merits of the breach of contract claim.
18. In these circumstances, this being an ex parte preliminary hearing at which the Respondent has no right to make representation, other than in relation to directions for a full hearing, it seems to us right in the interests of both parties that we permit this part of the appeal only to proceed to a full hearing. Consequently at that full hearing, the only matters for consideration will be first, whether or not the Employment Tribunal had jurisdiction to consider the breach of contract claim in the light of the decision of the Court of Appeal in Capek and secondly, if so, whether or not the Tribunal's findings in relation to that claim are sustainable on appeal.
19. Since those are the only issues, the three separate large bundles of documents which are before us will be unnecessary for the final disposal of the appeal. The matter can be dealt with on the basis of the documents contained in the EAT bundle only. The case will be listed for half a day, category B. There will be exchange of skeleton arguments between the parties not less than 14 days before the date fixed for the full appeal hearing. Copies of those skeleton arguments to be lodged with the EAT at the same time.