United Kingdom Employment Appeal Tribunal

APPEARANCES

 

FOR GMB TRADE UNON	MR OLIVER SEGAL (of Counsel) Instructed By: Messrs Thompsons Solicitors Price House 37 Stoney Street The Lace Market Nottingham NG1 1NF
FOR MRS K JONES AND MR J WHITEFOOT	MISS MELANIE TETHER (of Counsel) Instructed By: Messrs Morgan Cole Solicitors Buxton Court 3 West Way Oxford OX2 0SZ


 


JUDGE D M LEVY QC:

1. On 21 October 1999 Mrs K. Jones and Mr J. Whitefoot ("the Applicants") presented complaints to an Employment Tribunal that they had been subjected to detriments and/or dismissed by the GMB Trade Union ("GMB") as a result of:

"Certain breaches of section 44 of the Employment Rights Act Health and Safety; alternatively in breach of section 47B of the Employment Rights Act; alternatively section 152 of the Trade Union Labour Relations (Consolidations) Act 1992; alternatively in the case of Miss Jones on the grounds of her sex. In the case of Mr Whitefoot on the grounds of his disability".

The claim as framed under section 44 of the Health and Safety Act was in these words.

"In the premises in breach of section 44 of the Employment Rights Act 1996 the Respondents subjected the Applicant to detriment, and in particular caused her to be victimised at work and/or ostracised by colleagues and/or dismissed as a result of her bringing to its attention circumstances connected with her work which she reasonably believed were harmful to health and safety." [our italics]

2. The italicised words have, we think, have led to the bringing of these appeals by both Applicants and the GMB in the events which happened after. We will set out the material facts and first consider the appeal of the GMB.
3. On 16 November, the Employment Tribunal received the IT3s of GMB. The Applicants' claims were denied. GMB contended there was dismissal for related reasons of capability. As to section 44 they invited the Employment Tribunal to determine that:

"Section 44 has no application in the circumstances that the Applicants contend for and generally in relation to claims of detriment dismissal they contended that the Applicants failed to identify the legal basis of those claims and requested the Applicants to clarify the grounds/sections of the relevant act relied on".

4. On 18 February 2000 the Applicants wrote to the Employment Tribunal a letter in the following terms:

"We write to inform you [that] both Applicants have withdrawn their claims in these matters save in respect of the claims both are pursuing [1] in relation to section 44 of the Employment Rights Act 1996 and [2] non-payment of wages."

5. On 21 February 2000 there was interlocutory order on a hearing for directions before a Chairman sitting alone at Birmingham where both parties were represented. The Applicants were represented by counsel; a solicitor represented GMD. The order made by the Chairman does not say the words "By Consent" but later correspondence shows that it was so made. He gave directions, the second of which reads:

"The claims relating to sex discrimination and dismissal on grounds relating to union membership or activities in both cases and in the case of Mr J. Whitefoot the claim relating to disability discrimination be dismissed on withdrawal by both applicants. The applicants now only pursue their claims for unlawful deduction of wages relating to holiday payment entitlement, damages for breach of contract relating to payments in lieu of notice and their claims under the provisions of Section 44(1)(c) (i) and (ii) of the Employment Rights Act 1996." [our italics]

6. For the purposes of this appeal it is the last of those three claims, the claims under the provisions of section 44(1)(c) (i) and (ii) of the 1996 Act which are material. The learned Chairman then gave directions, which were largely followed, as to disclosure, exchange of witness statements, preparation for bundles, exchanging skeleton arguments and a date for hearing was fixed on 14 and 15 August 2000 commencing on each day at 9:35 am.
7. On 26 May 2000 GMB asked the Applicants for Further and Better Particulars of their claim under section 44. That application not having been answered, in the course of a letter dated 26 May 2000 the GMB's solicitors again asked the Applicants' solicitors for Further and Better Particulars of their claims under section 47 by reference to the order which it had made. The letter stated:

"Is it really your client's case there was n o relevant representative in relation to health and safety. For our part the Respondents consider that the ONC representatives had long … performed that role.

If … there was no appropriate representative how and when do they say they (as opposed to the ONC representatives) brought health and safety issues to the attention of their employer? The Respondents case will be that any of the issues … were brought to the Respondents attention not by themselves but by their ONC representatives."

8. On 20 July 2000 the Applicants' Solicitors wrote to the GMB's Solicitors giving the particulars sought on 26 May and in a final paragraph wrote:

"Finally, please find enclosed by way of service the amended Originating Applications of both Applicants together with the letter we have sent to the Tribunal requesting leave to amend. We note that while the amended Originating Applications both give rise to a new cause of action, they both arise [out] of the facts pleaded in the original Originating Applications. Accordingly, could you please confirm that you will not be objecting to the amendments."

It is notable that the solicitors for the Applicants considered there was a new cause of action being introduced. An application was sent to the Tribunal and on 21 July GMB wrote to the Employment Tribunal objecting to the proposed amendments.

9. On 25 July a letter was sent by the Employment Tribunal by the same Chairman who had given the directions replying to the Applicants' letter submitting amended Originating Applications. That letter stated:

"Thank you for your letter dated 20 July 2000 which has been referred to a chairman, Mr A.B. Rees who directs as follows:

'This is an entirely new application and an entirely new form IT1 will need to be registered'."

He copied the correspondence to the GMB solicitors

10. Among the Witness Statements which had been lodged or were exchanged about that time there was one by Mr Ken Gregory, Regional Secretary of GMB. In paragraph 5 of that he said:

"I understand that both Ms Jones and Mr Whitefoot now pursue only 2 allegations, a failure to pay correct holiday pay/notice pay upon the termination of their employment and an allegation that they were victimised contrary to Section 44."

The statement dealt with those allegations.

11. There was in fact no need for a new IT1, there was a need to amend that which had been presented. That was considered by the Tribunal at the start of the hearing and in due course the answer was given that:

"The applicants have permission to amend their applications by including a clear reference to claims brought under section 100 of the Employment Rights Act 1996."

12. The written Decision of the Employment Tribunal was sent to the parties on 13 December 2000. The Extended Reasons, having set out the alleged breach of section 44 of the 1996 Act set out in paragraph 1 of this judgment, read:

"4 It was accepted that the words 'and/or dismissed' were not covered by section 44 of the 1996 Act but were specifically provided for by section 100 of the same Act. Furthermore, [GMB] conceded that were it not for an interlocutory order of the tribunal … the applicants would have had reasonable grounds for arguing that the failure to specifically refer to section 100 in the Notice of Application should not prevent them from proceeding with a claim under that section since the relevant words had been included.

5 The main submission by [GMB] was that the order of 21 February 2000 confirmed that the applicants, in addition to withdrawing part of their claim, only [emphasis added] intended to pursue their claims for 'unlawful deduction of wages relating to holiday payment entitlement …' . The respondents case was that if there was a section 100 claim in existence as of 21 February 2000 it was dismissed and/or withdrawn at such hearing."

13. Mr Segal, who appears for GMB here and appeared for GMB at that hearing, tells us that the word "only" was not the submission he made and, indeed, it was the last sentence of that paragraph which was his submission to the Tribunal. Paragraphs 6 to 9 of the Extended Reasons reads:

"6 The applicants' case was that whilst their solicitors should have referred to section 100 in the Notice of Application and their Counsel should have applied to amend such notice as at 21 February 2000 hearing, to make it clear that a section 100 claim was being pursued in addition to section 44, this did not result in the claim being dismissed or withdrawn. The applicants were pursuing a claim based, inter alia, on being dismissed having brought health and safety issues to the attention of the respondents. In such circumstances, the applicants maintained that section 44 was a label for claims brought under both section 44 and section 100 and the failure to refer to a section number was not fatal to a claim which had been clearly stated on the facts from the outset. The tribunal had not referred to section 100 in its order of 21 February 2000 because the applicants had failed to clarify the position; the words 'and/or dismissed' were still included under the section 44 label.

7 The tribunal unanimously decided that the applicants had included a section 100 claim in their Notice of Application by virtue of the words 'and/or dismissed' at paragraph 11 of the original Notice of Application. If such words had not been included, the situation would have been completely different. Furthermore, the applicants had all been dismissed from their employment, so that section 100 was clearly appropriate on the facts alleged [and there was a reference to two cases which we have not been referred to]. The only question that remains is whether the interlocutory order of 21 February 2000 which only refers to claims under section 44(1)(c)(i) and (ii) proceeding (in addition to the other claims) meant that the applicants were no longer able to rely on section 100.

8 Clearly the applicants' legal representatives were at fault in not making it clear that they were pursuing claims under section 100 of the 1996 Act. Although the words 'and/or dismissed' protected such claims, at least until the interlocutory order of 21 February 2000, the applicants' legal representatives were under a duty to explain clearly and precisely the nature of the claims. The fact that the relevant words in section 100 had been included in the Notice of Application more by accident than design is illustrated by a fax from the applicants' solicitors dated 20 July 2000 in which they refer to the 'amended Originating Applications both give rise to a new cause of action'. Consequently, the respondents cannot be criticised for seeking to take a preliminary point on this issue. However, the tribunal unanimously decided that the failure of the legal representatives to correctly label the claim at paragraph 11 of the original grounds did not mean that the section 100 claim was dismissed or withdrawn on 21 February 2000, since it was incorporated into the section 44 claim. Unfortunately, the tribunal that dealt with the interlocutory order were not informed that the section 44 label included a section 100 claim when the parties' representatives agreed a Consent Order.

9 The tribunal decided that the order of 21 February 2000 when referring to section 44(1)(c) (i) and (ii) simply referred to those claims in the Notice of Application, including paragraph 11 of the grounds. Furthermore, the order of 21 February 2000 did not dismiss or exclude the words 'and/or dismissed'. The unanimous view of the tribunal was, therefore, that the order did not dismiss the pre-existing, albeit wrongly labelled claim, under section 100 of the 1996 Act. Consequently, the applicants are given permission to amend their Notice of Application by including a clear reference to section 100 of the Employment Rights Act 1996."

14. From that decision GMB have appealed and Mr Segal has appeared before us, as he appeared before the Tribunal. On this occasion the Applicants have the benefit of Miss Melanie Tether of Counsel and we are obliged to her for her submissions in attempting to support the order made by the Employment Tribunal.
15. In our judgment the order which was made is one which on the construction of the Consent Order was not one which could have been made. It clear beyond peradventure that looking at the order what was the subject of the litigation after the order was that which was set out. We return to the words of the order:

"The claims relating to sex discrimination and dismissal on grounds relating to union membership or activities in both cases and in the case of Mr J Whitefoot the claim relating to disability discrimination be dismissed on withdrawal by both applicants. The applicants will now only pursue their claims … under [3] provisions of Section 44."

Any fair reading of the order makes it clear beyond peradventure that what was to be litigated about were the claims made under the specified section. It will be noted that the original Originating Application did not specify the sections which were referred to and this, as we have demonstrated, was a Consent Order.

16. In our judgment the reliance on the words which were found hidden in paragraph 11 by the Tribunal are simply not warranted on what was a clear order and any fair construction of that order could only have concluded that what was in paragraph 11, other than subsections of section 44, had been withdrawn.
17. We have heard submissions by Miss Tether as to the exercise of discretion by a Tribunal. However, when there has been a clear withdrawal of a claim and a clear acceptance of what is to go forward to a hearing by the parties in our judgment, we have concluded that the Tribunal was not entitled to exercise discretion to put the clock back. We are fortified to some extent in the approach we have taken by the unreported judgment of Burton and The Management Committee of the Gateshead Law Centre & Others v Miss Khan, a matter which was heard in the EAT on 13 October 2000. The judgment of Judge Peter Clark was sent to the parties on 25 October 2001. Counsel, both of the same chambers in this appeal, only discovered it on the web site on 15 November 2001. Paragraph 37 of the judgment reads:

"37. The difficulty is that before the Employment Tribunal Mr Newton expressly conceded that s.33 did not apply in this case. However, during the course of the argument before us he has sought to withdraw that concession."

18. He was not allowed to do so. Obviously, there is a different scenario to the one we have to consider but once a concession is made, then the parties are not, in our judgment, entitled to rely on the matter conceded in an attempt to resuscitate that matter further into the ongoing litigation. As the Tribunal did not go on to exercise any discretion in this case, it is not necessary for us to debate whether in reaching the wrong decision they properly or otherwise exercised their discretion.
19. In these circumstances we will allow the appeal by GMB.
20. We now turn to consider the appeal of the Applicants
21. The Applicants' appeal is against that part of the order where the Employment Tribunal refused leave to the Applicants to amend their application so as to include a reference to section 44(1)(ba) of the 1996 Act.
22. The Employment Tribunal dealt with this part of the claim quite succinctly and paragraph 10 of the Extended Reasons reads:

"10 The situation concerning section 44(1)(ba) is completely different. This section refers, inter alia, to

'The employee took part (or proposed to take part) in consultation with the employer pursuant to the Health and Safety (Consultation with Employees) Regulations 1996 or in an election of representatives of employee safety within the meaning of those Regulations (whether as a candidate or otherwise)'.

However, there was no reference to this [subsection] or to any facts in support thereof in the Notices of Application. Consequently, this would be a wholly new ground upon which the applicants rely, which is well out of time, and the application for permission to include this claim is refused. [italics added]

11 In reaching their decision the tribunal had full regard to the skeleton arguments helpfully submitted by Ms Burnham on behalf of the applicants and Mr Segal for the respondents. [There is then a reference to authorities]. The simple fact is that a new cause of action and/or estoppel does not apply in the case of section 100 since it was included from the outset and not dismissed, despite the lack of clarification. However, as mentioned, section 44(1)(ba) is a completely different cause of action which was not described at all in the Originating Applications."

23. In her submissions Miss Tether has attempted to persuade us that the finding which we have put in italics in the citation of paragraph 10 was wrong. She has referred us to the grounds of application themselves. In response Mr Segal has said to us that the only facts which are material to this point are grounds 4 and 8 of the grounds of application (as unamended). Ground 4 reads:

"4 On 11 June 1999 the Applicant [and this is the same with slightly different words in both applications] attended a meeting of the Respondent's West Midland Branch Officers Negotiating Committee (ONC) meeting. At the meeting concerns surrounding the health and safety of Officers employed by the Respondent, and in particular Officer morale, were raised. At the meeting the Applicant was amongst a majority who voted in favour of such concerns to be dealt with by ONC representatives on a collective basis."

Ground 8 reads:

"On 4 July 1999 the Applicant attended a meeting of the ONC. The only other Recruitment Officer present was Mr Whitefoot. At the meeting the ONC representatives presented a report dealing with their investigations into Officer morale pursuant to the previous ONC meeting. In response to the report a proposal was put forward to raise the issues of stress, harassment and bullying on a collective basis [with] the line manager above Mr Gregory, the General Secretary of the Respondent, John Edmunds. The Applicant voted in favour of this proposal."

24. We think that the references by Mr Segal to the grounds of claim on this point were those which he submitted and in that context we turn to the Health and Safety (Consultation with Employees) Regulations 1996. It is clear from the paragraphs to which we were referred by both counsel that the "Duty of employer to consult" is the beginning of Regulation 3. The "Person to be consulted" by the employer is dealt with in Regulation 4. The "Duty of employer to provide information" is dealt with in Regulation 5 and the "Functions of representatives of employee safety" is dealt with in Regulation 6. We turn to the subsection of the Act which was sought to be introduced at section 44(1):

"(1) An employee has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that -…

(ba) the employee took part (or proposed to take part) in consultation with the employer pursuant to the Health and Safety (Consultation with Employees) Regulations 1996 or in an election of representatives of employee safety within the meaning of those Regulations (whether as a candidate or otherwise),

(c) being an employee at a place where -

(i) there was no such representative or safety committee, or

(ii) there was such a representative or safety committee but it was not reasonably practicable for the employee to raise the matter by those means … ."

25. It is the GMB's case, as I understand it, that there was a safety committee here and therefore it was only with that committee the employer was to confer. Miss Tether's submissions were based on the fact that there was no such committee and therefore these are matters which are raised in the two paragraphs mentioned, were matters which the Applicants wished to raise.
26. We assume against Mr Segal that, for the purposes of this hearing, that there was no such committee but if it were these matters that the Applicants were meant to raise, we do not understand how in the context what was mentioned in the grounds of application arose under the Health and Safety Regulations 1996. We agree with the submissions made by Mr Segal that, on this ground, the Tribunal was right. However, if we are wrong on that we refer to the Consent Order of 21 February 2000 made when the Applicants were differently represented other than by those who represent them today. It is common ground that the order was made by consent. The Tribunal:

"HEREBY DIRECTED that:

"The claims relating to sex discrimination and dismissal on grounds relating to union membership or activities in both cases and in the case of Mr J. Whitefoot the claim relating to disability discrimination be dismissed on withdrawal by both applicants. The applicants now only pursue their claims for unlawful deduction of wages relating to holiday payment entitlement, damages for breach of contract relating to payments in lieu of notice and their claims under the provisions of Section 44(1)(c) (i) and (ii) of the Employment Rights Act 1996."

27. For the reasons given earlier in this judgment it was not open to the Applicants to seek to enlarge the matters which they had agreed were to be the subject of their complaints to the Tribunal. Mr Segal tells us that that was a submission he made to the Employment Tribunal we have been referred to the guidance given, though it is not reflected in their judgment. However that may be, we have been referred to the guidance given in Selkent Bus Co Ltd v Moore [1996] ICR 836 as to matters which are to be borne in mind when leave to amend is sought. We have borne that guidance in mind.
28. In our judgment, the Employment Tribunal was entirely right to reject the application to amend at the very late stage in the hearing when it was made. The application appears to have surfaced as an afterthought of counsel arising from correspondence between solicitors. In particular, it arose because there was a letter from the solicitors for the GMB to the Respondents dated 21 July 2000 in reply to which the former solicitors for the Applicants wrote in a letter dated 24 July:

"I would ask you to note that we propose also, in our claim under s.44 of the Employment Rights Act, to rely on s.44(1)(ba). This subsection was omitted in the further particulars served this morning but, on counsel's reflection, is now included. Please find attached .. ."

29. Further down in the letter, there is a discussion on the provisions of section 44(1)(ba) and section 44(1)(c)(i) or (ii), suggesting that no additional work would be required to be done. The issue arose at a very late stage shortly before a hearing, which had been arranged pursuant to an order made and directions agreed. In our judgment, those were factors which properly had been taken into account by the Tribunal when it decided to dismiss the application to amend.
30. In the circumstances, we will dismiss this appeal by the Applicants against the order made by the Employment Tribunal.

Application for permission to appeal

31. Miss Tether, we have considered your application for permission to appeal. We do not think that, given the context of the case, there are grounds which call for review by the Court of Appeal of this decision. You will therefore have to apply elsewhere.