United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	The Appellant in person


 


JUDGE PETER CLARK

1. This is an appeal by Mrs Collins, the Applicant before the London South Employment Tribunal, against an order made by a full Tribunal chaired by Mr D Booth sitting on 28 June 2000, refusing her permission to amend her Originating Application to add a complaint of unlawful disability discrimination. That order, with written reasons, was promulgated on 7 July 2000.

Background

2. The Appellant was employed by the Respondent Bank from 1977 until her dismissal effective on 29 June 1999. Prior to her dismissal, by notice given on 1 April 1999, she had been off work due to sickness since late 1996. At that time she was employed on clerical duties involving keyboard work. It seems that the cause of her sick absence was a form of upper limb disorder, possibly carpal tunnel syndrome on both sides, worse on the right side.
3. Whilst off sick she brought two separate sets of Tribunal proceedings against the Respondent, in March 1997 and January 1998. Both those claims were settled.
4. On 28 September 1999 she presented the current proceedings to the Tribunal, following her dismissal, just within the ordinary three month limitation period following the effective date of termination of her employment. In that Originating Application she listed her complaints as (1) unfair dismissal (2) race discrimination (3) victimisation (4) reduction from wages (we think that is unlawful deductions) (5) breach of contract. Neither in box 1 of the Originating Application form nor in box 11 of that form did she intimate a claim of disability discrimination. However, at the end of the particulars given in box 11 she said "Full particulars to follow".
5. A copy of the Originating Application was sent to the Respondent Bank on 27 October 1999. The following day the Bank's solicitors wrote to the Tribunal asking that a Chairman direct the Applicant to set out particulars of her claim before the Respondent submitted a substantive response.
6. On 2 November 1999 a Chairman directed that the Appellant provide full particulars of her claim on or before 12 November. On 8 November solicitors then acting for the Appellant appeared on the scene by writing to the Tribunal asking for a fourteen day extension to the time for compliance contained in the 2 November order. That extension was granted by a letter from the Tribunal dated 10 November 1999.
7. The Appellant's solicitors lodged full particulars of the Appellant's claim dated 26 November 1999. In addition to those claims indicated in the Originating Application was a claim of disability discrimination. The Bank responded by a Notice of Appearance with detailed grounds for resistance dated 17 December 1999.
8. On 28 January 2000 the case came before a Chairman, Mr D N Milton, for a directions hearing. On that occasion he directed, among other things, that the case be listed for a preliminary hearing starting on 28 June 2000 to deal with the questions as to:

(1) whether the Appellant was disabled within the meaning of section 1 of the Disability Discrimination Act 1995, and

(2) whether the disability claim was time-barred.

It was that matter which came before Mr Booth's Tribunal on 28 June 2000. A full merits hearing was listed to commence on 18 September 2000.

9. The Booth Tribunal treated the particulars of the Appellant's complaint, received, they held, by the Tribunal on 29 November, as an application for permission to amend the Originating Application to add a complaint of disability discrimination. They refused to permit the amendment, holding that the Appellant was well aware of the Tribunal's procedure, had received advice and could have presented her discrimination claim within time. It was not just and equitable to extend time.
10. There has been a further development since the order now under appeal was made. On 28 June the Appellant was ordered to serve further and better particulars of her case by 24 July. She did not do so.
11. On 28 July it appears that the Tribunal wrote to new solicitors then instructed on behalf of the Appellant. On 3 August those solicitors replied stating that they had taken instructions from the Appellant and understood that the discrimination complained of consisted of both racial and disability discrimination, and further stated that the Appellant was not in possession of details in support of her claim until after the Respondents had given discovery.
12. On 7 August the Chairman, Mr Booth, wrote to those solicitors indicating, among other things, that unless a discovery request made to the Respondent was received by the Tribunal within seven days, the Originating Application would be struck out.
13. No such request was received and on 16 August that Chairman promulgated an order striking out the Originating Application. The Appellant's solicitors applied for a review of that decision by a letter dated 25 August 2000. By a decision dated 14 September 2000 the Chairman refused that review application.

The Appeal

14. Against that background, we come to consider the points made by Mrs Collins in support of her appeal against the Tribunal's order promulgated on 7 July. She submits that it was made clear in her Originating Application that full particulars would follow. An order was made on 2 November requiring those particulars to be given; time was then extended on the application of her solicitors until 26 November and on that date her solicitors delivered full particulars by fax to the Tribunal, setting out among other things, the disability discrimination claim.
15. In these circumstances she submits that no question of amendment arose; the particulars should be treated as forming part of the Originating Application which was itself submitted just within time. We cannot accept that submission. It seems to us that the Tribunal were entitled to take the view that the Originating Application, as such, contained no hint of a disability discrimination claim, whether in box 1 or in the particulars, under box 11.
16. We have in mind the Court of Appeal decision in Housing Corporation v Bryant [1999] ICR 123 in which an Originating Application was presented to the Tribunal complaining of unfair dismissal and sex discrimination. The sex discrimination complaint was subsequently dismissed by a Tribunal; thereafter, the Applicant applied for leave to amend her Originating Application to include a complaint of victimisation, under the Sex Discrimination Act. That application was refused by a Chairman; the Application successfully appealed to the EAT, but on further appeal to the Court of Appeal, the Court restored the Chairman's Order. That case makes it clear that it is vital that an Applicant at least sets out a basis for a cause of action, even if it is not formally identified in the Originating Application.
17. That was not done in this case, consequently the Tribunal Chairman was entitled to treat the particulars as an application for permission to amend, insofar as the claim of disability discrimination was concerned, that was out of time. Whether the relevant date was taken as 26 November or 29 November, the Tribunal were entitled to conclude, for the reasons which they gave, that it was not just and equitable to extend time.
18. That disposes of the Appeal but the Appellant has a further difficulty which we canvassed with her this morning. Even had her appeal been not only arguable, but also successful, the result would be that the disability claim would be included, within the Originating Application, along with the other claims to which we have referred. Her difficulty then would be that that Originating Application having been struck out, and an application for a review of that decision having been dismissed, in the absence of an appeal against either the strike-out order or the review decision, it would advance her nothing to have the disability discrimination claim included in the original claim.
19. We have made enquiries ourselves, and are unaware of any such appeal having been lodged within time, or at all, and Mrs Collins, today, tells us that she is unaware of any such appeal having been lodged. In these circumstances, and for that additional reason, we are driven to conclude that this appeal must be dismissed.