United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MS J BROWN (of Counsel) Instructed by: Messrs Whittles Solicitors Pearl Assurance House 23 Princess Street Albert Square Manchester M2 4ER
For the Respondent	No appearance or representation by or on behalf of the Respondent


 


MR RECORDER UNDERHILL QC

1. The Appellant, who is of Irish origin, was employed by the Respondent as a road sweeper. On 9^th November 1998 he was involved in an incident in which he is said to have used foul language to a superior and to have refused to obey a reasonable instruction. Following a disciplinary hearing on 23^rd November 1998 he was dismissed with effect from 11^th December 1998. On the same day he lodged an Originating Application with the Employment Tribunal. The IT1 identified the nature of his complaint as unfair dismissal. The details in paragraph 11 of the form read as follows:

"I feel I have been dismissed because I have reached a final warning within the Council's disciplinary procedure, based on sickness monitoring. I was off work because of an industrial injury. I injured my right ankle. When returning from the sick I was given a first stage warning for absence, and a reoccurrence of that injury, on other occasions and was subsequently given a second stage and final warning. [The meaning of that sentence is not entirely clear, but it does not need to be resolved for present purposes.]

I have now been dismissed for allegedly swearing at a supervisor and refusing to work. This would normally not carry such a severe penalty of dismissal, but on a totting-up process I have been dismissed.

I therefore claim that the dismissal was caused because of an injury I incurred at work."

2. What the Appellant now says is that that IT1 does not tell the full story. He says that the incident which led to his dismissal was provoked by the Respondent's District Inspector calling him "Semtex", an obviously offensive allusion to IRA terrorism. He now wishes to amend his application to include a claim for racial discrimination in the following terms:

"1. I am of Irish nationality.

2. I was dismissed on 11^th December 1998 for failing to obey a reasonable instruction and for foul and abusive language.

3. The request was made by Mr T Carew (District Inspector). When speaking to me he called me "Semtex".

4. I found this name calling to be both an insult and a racial slur. I had started to work for the Council at around the time of the Manchester bombing and at that time was often referred to as Semtex. This went on for several months but after I repeatedly objected to my colleagues called me this [sic], the nickname stopped on the whole but Mr Carew my Supervisor did not stop using the phrase.

5. I believe that he was well aware that I found the name offensive.

6. I believe that calling me Semtex amounted to racial harassment which provoked me into my reaction for which I was subsequently dismissed.

7. I believe that the name calling amounted to race discrimination, and when looking at the incident as a whole my employer's action is [sic] dismissing me as a result of the incident was also race discrimination."

3. Permission to amend was refused by the Employment Tribunal in an interlocutory decision sent to the parties on 2^nd February 2000. This is an appeal from that decision. The Appellant has been ably represented on this appeal by Ms Jillian Brown. The Respondent wrote to the Appeal Tribunal saying that it did not wish to appear but inviting us to uphold the decision of the Tribunal.
4. It is necessary briefly to set out the history of how the application for permission to amend came to be taken. A pre-hearing review was fixed for 3^rd March 1999. On 28^th January 1999 it was adjourned by agreement in order to allow an internal appeal to proceed. Mr Hantom, the senior partner of Whittles, who were the solicitors instructed by the Appellant's trade union to conduct the internal appeal, told the Employment Tribunal that he personally first received the papers on 6^th June 1999 and that he realised at that point that the Appellant had a possible claim for race discrimination. He explained, however, that he did not regard it as appropriate to raise that issue in the Tribunal proceedings while the internal appeal was pending. The appeal was heard on 25^th June 1999 and was unsuccessful; it appears that the allegation that Mr Carew had addressed the Appellant as Semtex was raised on that occasion. The adjourned pre-hearing review took place on 31^st August 1999. The Chairman on that occasion made a note on the file, which we understand to be accepted as substantially accurate:

"Potential discrimination issues were raised by Mr Edmonds at the pre-hearing review, but no request to amend the claim was made at the hearing."

It was not until 10^th September 1999 that an application to amend was made by letter from Whittles. It was opposed by the Respondent, which led to the hearing and decision from which the Appellant now appeals.

5. The Employment Tribunal's reasoning leading to its decision begins at paragraph 6 of the Reasons. The Tribunal there refers to the three-month time limit for bringing a claim of racial discrimination imposed by s 68 (1) of the Race Relations Act 1976, and to s-s.(6) which provides:

"A Court or Tribunal may nevertheless consider any such complaint, claim or application which is out of time if, in all the circumstances of the case, it considers that it is just and equitable to do so."

The Reasons continue as follows:

"7. In this case the Originating Application was stated to be one for unfair dismissal and the events of the dismissal had occurred on the very day the Originating Application was presented. The details of the claim contain no reference to any circumstances related to the dismissal which could even hint that an act of racial discrimination had taken place. This is not a case where a mistaken or incomplete label has been put on the circumstances.

8. We do not entirely accept Mr Hantom's submission that if we allowed the amendment, the prejudice to the Respondent would be minimal. A principal witness to the dismissal, Mr P Carew, could not be directly questioned concerning the applicant's allegations as to what had been said on 11^th December 1998 until over nine months had passed. The unfair dismissal claim has not yet been heard, and if the amendment was allowed, the total claim could be dealt with in one hearing.

9. This is not a case of incorrect advice having been given by a trade union official or legal adviser. Mr Hantom contends that the internal appeal hearing was a good reason for not applying to include a racial discrimination claim but it is not contended that the applicant held over from making a racial discrimination claim because he hoped to settle the matter on the internal appeal. It became apparent to Mr Hantom that such a claim might be made on 5 June. We do not agree with him, but in any event Mr Hantom accepts that he could have made an application to amend after 25 June. He waited until 11 September.

10. We have considered all the circumstances of the case. It is important that time limits imposed by Statute should be observed. There was delay from 25 June until 11 September to make this application to amend. This arose out of events which had occurred on 11 December 1999 when the applicant was being assisted by his Trade Union. In exercising our discretion under Section 68(6) we do not consider that it is just and equitable to accede to this application to amend."

6. Ms Brown took us clearly and fairly through the authorities relating to the exercise by Employment Tribunals of the power to allow the amendment of an originating application, particularly where the amendment seeks to raise a fresh claim to which a statutory time limit applies. The most recent authority is Harvey v Port of Tilbury London Ltd. [1999] IRLR 693. Ms Brown sought to persuade us that Harvey ought not to be followed because the Employment Appeal Tribunal in that case declined to follow the reasoning of the Court of Appeal in British Newspaper Printing Corporation (North) Ltd. v Kelly [1989] IRLR 223. But we should be very slow to depart from a fully reasoned decision of this Tribunal, after consideration of all the relevant authorities: Lindsay J in Harvey expressly acknowledged that the Tribunal was not following Kelly and gave persuasive reasons for not doing so. In these circumstances we regard Harvey as stating the correct approach. Harvey concerned an application to add a claim under the Disability Discrimination Act 1995 to an existing claim for unfair dismissal. The 1995 Act contains provisions substantially equivalent to those of s.68 of the 1976 Act as set out above. The decision on the question of principle is adequately summarised in the headnote as follows:

"Where the statutory three-month period has expired and an employment tribunal is unable to conclude that it would be just and equitable to extend time, the presentation of a complaint is as totally barred if it is sought by amendment as it would have been had it been sought then to be made by an originating application, although the fact that there are existing proceedings may feature largely in the consideration of whether or not it would be just and equitable to extend time. A complaint can be as much "presented" to an employment tribunal by way of amendment adding a claim which is analogous to a fresh cause of action as by its being a feature of an originating application."

7. That was the approach which the Tribunal in the present case purported to follow: although it did not refer to Harvey (which indeed had not then been decided), it was plainly intending to apply the s.68 (6) test. The question then is whether it in fact did so. Ms Brown submits that it did not. She makes the following points.
8. First, she submits that the Tribunal did not pay any regard to the fact that the claim was being presented in the context of existing proceedings. As the Appeal Tribunal made clear in Harvey, that is potentially an important consideration. Plainly, in many cases the existing proceedings may already raise the substance of the complaint and the amendment will do no more than attach a different, and perhaps more appropriate, label to a complaint of which the Respondent is already fully apprised. In such circumstances, it may well be just and equitable to allow the amendment. But the Tribunal did not believe that that was the case here – see paragraph 7 of the Reasons as set out above – and in our view that was an entirely legitimate assessment.
9. Secondly, Ms Brown submitted that the new facts pleaded did no more than "provide further details of particular events already complained of". She submitted that the relevant witnesses, and specifically Mr Carew, will have been aware from 11^th December 1998 at latest that they were going to have to give their own account of the incident which led to the dismissal; and that that account would not be affected by "further details" emerging of the Appellant's account of events. That may be so to some extent, but it is certainly not wholly true: a witness's evidence about an incident consists partly of his own recollection and partly of his own comments on the opposing recollection of others, and there is, realistically, a degree of interaction between the two. We do not believe that the Tribunal was unreasonable in forming the view, as stated in paragraph 8 of its Reasons, that there was likely to be a significant degree of prejudice to the Respondent in Mr Carew having to consider for the first time six months after the event an account of the incident in question which had never previously been given. The description of the new facts as merely "further details" understates the very obvious difference between the case presented in the IT1 and the case now sought to be presented by way of amendment.
10. Thirdly, Ms Brown submits that the Tribunal did not pay any proper heed to the hardship to the Appellant caused by the failure to grant the amendment. This factor is not, it is true, expressly referred to by the Tribunal; but it is inherent in all such applications, and there is no reason whatever to believe that the Tribunal did not take it into account.
11. Fourthly, Ms Brown submitted that the Tribunal failed to take proper account of the reasons for the delay in amending. She submitted that it was not unreasonable for Mr Hantom not to seek leave to amend until the internal appeal had been disposed of. As to that, the Tribunal indicated that it disagreed with Mr Hantom's judgment in this regard; but it went on to make clear that that this disagreement was not essential to its decision. It was plainly, and we believe legitimately, affected both by the surprising fact that the allegations now sought to be relied on had not been raised by the Appellant in his Originating Application in the first place, or at any time before 6^th June and by the delay in pursuing any application after 25^th June 1999.
12. Lastly, she submits that the Tribunal failed to take any account of the fact that the Respondent had knowledge of the race discrimination allegations before the application to amend was made. But it is not suggested that the Respondent had any knowledge of the allegations in question until the internal hearing on 25^th June 1999. By that time over six months had already elapsed.
13. Overall, in our view this is a case in which there were sufficient grounds on which the Tribunal could reasonably have come to the decision which it did. In particular, there had been over six months delay in raising with the Respondent what were serious allegations which should unquestionably have been included in the original grounds; and that delay could reasonably be judged to have caused significant prejudice to the Respondents. Of course there were, as there generally are, considerations weighing in the opposite balance. But the assessment of the relative weight of the competing considerations is a matter for the Employment Tribunal, and this Tribunal should be slow to intervene. We see no grounds for doing so in this case.