United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	The Appellant in person
For the Respondent	Ms Joanna HEAL (of Counsel) Instructed By: Eversheds 85 Queen Victoria Street London EC4Y 4JL


 


MR COMMISSIONER HOWELL QC:

1. This interlocutory appeal by the Applicant is dismissed. We have not been satisfied that there was any error of law in the procedural decisions of the Chairman notified to the Applicant by letter dated 6 November 2001 (as supplemented by a statement of reasons by letter dated 30 November 2001, and confirmed by letter dated 18 December 2001 declining to vary the orders previously made) such as to warrant the appeal tribunal intervening to set them aside. The two matters in issue are first the Chairman's refusal to allow the Originating Application to be amended to add further claims and issues, and second his refusal to order the extensive further disclosure of documents sought by the Applicant from the Respondent.
2. The Applicant, Mr Walker William Sigismund, was employed by the Respondent ("HSBC") from 11 April 1994 to 3 February 2001 and at the time his employment terminated was a "Senior Manager, Traded Markets Development and Risk". On 2 May 2001, that is just within the prescribed time limit of three months under section 111 Employment Rights Act 1996, he presented the Originating Application in these proceedings, based solely on a complaint of unfair dismissal. That document shows him to be an intelligent and articulate person, well able to understand the nature of an unfair dismissal claim and also to understand and operate the procedure for making a complaint to an Employment Tribunal by Originating Application when he chose. HSBC's response and grounds of resistance dated 31 May 2001 denied his allegations of unfair dismissal and contended that he had been dismissed by reason of redundancy or other substantial reason following consultation and proper notice, with a severance payment of over £102,000.
3. On 15 June 2001 the Applicant was given leave by a Tribunal Chairman to amend this Originating Application by the addition of a further paragraph saying

"My dismissal leaves several outstanding promises to be fulfilled by the bank on behalf of the executives who have made them over the years which any fair settlement would need to resolve."

The reason for this amendment as stated in his letter of application dated 11 June 2001 was that:

"The facts related to these promises are relevant to the unfair dismissal claim and go to the core of why I find it unfair and/or of significant value to me. As a result, I hope that they can be fairly and cheaply included in this same hearing and ask for your understanding as to my oversight."

No reasonable person could have understood the grant of leave to make that amendment to his unfair dismissal claim as allowing the Applicant to bring in a fresh cause or causes of action of some different kind, separate from the unfair dismissal claim, outside the prescribed time limit from the termination of his employment. It is clear in our judgment that the letter of 15 June 2001 allowing him to add this one sentence to his Originating Application did not do so.

4. On 10 August 2001 a directions hearing took place before the Tribunal Chairman, when directions were given defining five specific issues of fact to be considered by the Tribunal on the unfair dismissal claim: in particular whether he had been genuinely, fairly and properly dismissed for redundancy, and whether alternative employment for him had been properly considered by the Respondent. There were also directions for the delivery of further and better particulars of the Originating Application; for mutual disclosure of documents relevant to the dismissal and redundancy issues by 28 September 2001 with inspection by 12 October; and for the effective hearing of the application, by that time already listed for a hearing for five days fixed to start on 28 January 2002. These directions were recorded in detail in a letter dated 15 August 2001 sent to the parties by the Tribunal (pages 17 to 19 in the appeal file), which also included the following passage:

"3 The Applicant has sought to amend his Originating Application so as to allege that his dismissal was brought about by reason of him making a protected disclosure, and, therefore, was unfair pursuant to Section 103A of the Employment Rights Act 1996.

4 Despite considerable efforts, the Tribunal was unable to obtain from the Applicant the nature of the qualifying disclosure within Section 43B of the Act, which he relies upon, or indeed the particulars of the disclosure which he relies upon. In those circumstances, the Chairman refused the Applicant leave to amend his Originating Application so as to complain of unfair dismissal contrary to Section 103A.

5 It may be that the Applicant will renew his application to amend in that regard. It was pointed out to him that if he does so, he will be required to set out in some detail the basis of his complaint and indicate how he alleges such disclosure amounts to a qualifying disclosure within the terms of Section 43B of the Act."

5. The Applicant did not seek to renew his application, or to particularise further the nature of any additional claims, for over two months after that. Then on 25 October 2001, that is after the dates for disclosure and inspection of documents in accordance with the Tribunal's directions on the unfair dismissal issue, he made the written applications which have given rise to this appeal. These consisted of a letter to the Tribunal Chairman and two annexed documents headed "Pleading" and "Discovery" respectively, running in all to 29 closely typed pages. The letter began:

"Dear Tribunal Chairman

As a litigant in person, it has been clear to me that I need to do a much better job organising my case and pleading it before the Tribunal. So I have been working to identify the applicable legal arguments and precedents.

Please find enclosed a Pleading that lays out my claims in full clarity. I would be most obliged if the Chairman would allow me to clarify and/or amend my application as described. My claims for unlawful deduction of commission and whistle-blowing should be justified through my amendments of 11 June and 6 July, but also as fresh claims due to the importation and use of my creative works in London last September, or alternatively due to justice and equity.

The second enclosure is a request for Discovery of pertinent documents. Given the fact that my claims grow out of a verbal contract and that information has been hidden by the Respondent contrary to protected disclosure legislation, this order for discovery is crucial to the fair administration of my claims."

The "Pleading" consisted of 140 paragraphs of narrative, showing that what the Applicant was seeking to do was broaden the scope of the Originating Application far beyond that of any reasonable unfair dismissal claim and to use it as a means of litigating a much broader spectrum of disputes between himself and HSBC. These included, in particular, claims against them for compensation based on an alleged verbal contract between himself and two individual employees of HSBC, relating to intellectual property of which he claims to be the author: a software system for "risk management" he had developed from 1986 when he was at the Massachusetts Institute of Technology and later when working as a derivatives trader. His contention was that these should be admitted as additional or fresh claims by reference to the Respondents having installed an allegedly similar system in September 2001, some seven months after the termination of his contract of employment. As to "Discovery", the third paragraph of his letter quoted above, together with the annexure on this topic which ran to another 42 paragraphs and identified numerous broad categories of documents he wished to investigate, showed that here too what he was seeking related primarily to these additional claims, with which his attempt to introduce an alleged "protected disclosure" claim was also, according to him, bound up.

6. The applications made in that letter and enclosures were considered and rejected by the Chairman in the decision which is the principal subject of this appeal, notified to the Applicant by letter dated 6 November 2001 at page 9 of the appeal file, as follows:

"2 Your application to amend your originating application is refused. The issues for determination by the Tribunal and the relevant Respondent's were identified at the hearing on 10 August 2001 as recorded in the Tribunal's letter of 15 August 2001. The hearing will be confined accordingly.

3 Your request for an order for further disclosure is refused as being disproportionate to the issues to be dealt with."

7. The Applicant was not satisfied with that and sent a further letter dated 8 November 2001 addressed to the Tribunal Chairman (pages 50 to 57) running to another 50 paragraphs. It first requested that the grounds for the refusal of the two applications should be more clearly stated. Then in the ensuing paragraphs it raised further contentions as to why the scope of the proceedings should be expanded to include the claim for compensation under the alleged verbal contract (described as a claim for "unlawful deduction of wages/commission") and the connected claim for alleged protected disclosure described as "whistle blowing". It contained two emphasised passages on which some reliance was placed in the argument before us:

"14 In any event the unlawful deduction of wages claim is valid as a fresh application that falls within the jurisdiction of the employment tribunal and is in time. …"

…

28 In any event, I submit that my [whistle blowing] claim falls within the jurisdiction of the Employment Tribunal and is within time as a brand new claim. …"

8. The response to that was contained in the letter dated 30 November 2001 at page 57a as follows:

"1 The Chairman has considered your letters of 8 November 2001 and 28 November 2001. As to your request to amend your Originating Application to add a complaint that your dismissal was contrary to section 103A of Employment Rights Act 1996, the Chairman does not consider that you have identified any matter capable of being a disclosure of information by you in accordance with section 43C to 43H showing one or more of the matters referred to in section 43B Employment Rights Act 1996. Accordingly for this reason, and because your application seeks to add a new cause of action well over three months after the date of termination of your employment and there being no material to suggest that it would not have been reasonably practicable to present such an application within time, your renewed application to amend your Originating Application is refused.

2 As to the other directions given at the hearing on 10 August 2001, they will continue to apply. …"

9. On 10 and 13 December 2001 the Applicant wrote further letters to the Tribunal Chairman pressing to be allowed to introduce his further claims and obtain orders for much more extensive disclosure of documents against HSBC. The first of those letters ran to 55 paragraphs, had annexed to it a substantial amount of further technical documents and other material which he contends clearly establish his title to the intellectual property rights he claims, and contained the suggestion that these had been criminally infringed by HSBC. On 18 December 2001 the Regional Secretary to the Tribunal responded that:

"With regard to your letters of 10 and 13 December 2001, the Chairman indicates that he has dealt with your applications in the Tribunal's letter of 30 November and the directions letter of 15 August. He does not propose to vary those orders."

10. The appeal to us by Notice of Appeal dated 30 November 2001 is against the two decisions embodied in the letter of 6 November 2001 refusing the applications for amendment and further disclosure of documents. We considered the decisions notified in that letter in conjunction with the later letter of 30 November 2001 amplifying the reasons, and for practical purposes also treated the appeal as extending to the confirmatory letter dated 18 December 2001 following the further representations made to the Chairman by the Applicant in the intervening correspondence. Ms Heal, who appeared for the Respondents on the appeal before us, confirmed that she had no objection to that course.
11. This is an interlocutory appeal, against decisions taken by the Employment Tribunal Chairman in exercise of his jurisdiction to determine procedural questions arising in the course of proceedings in the Employment Tribunal. Those proceedings are the ones begun by the Applicant by his Originating Application of 2 May 2001, on the sole ground of unfair dismissal, and are currently due for hearing of the relevant issues on that complaint on 28 January 2002; a five-day hearing which has been fixed since the beginning of last August. Under Rule 15(1) of the Employment Tribunals Rules of Procedure Regulations 2001 SI No. 1171 it is for the Employment Tribunal to regulate its own procedure, and in our judgment the principles which govern the approach of the Appeal Tribunal on any attempt to appeal procedural decisions of the kind in point here are well established and beyond dispute. In particular,

(1) the Tribunal's power over its own procedure includes power to decide whether leave should be granted for the amendment of an Originating Application;

(2) the exercise of that power is a matter for the judicial discretion of the Employment Tribunal or Chairman exercising it;

(3) the manner in which that discretion is exercised in an individual case is not something with which the Appeal Tribunal can or will interfere unless the power is shown to have been exercised improperly or otherwise erroneously as a matter of law, and in this context that is a heavy burden to discharge;

(4) the matters it is proper for a Tribunal Chairman to take into account in deciding whether to allow an amendment include whether the nature of the amendment is a substantial alteration pleading a new cause of action, the applicability of time limits and the timing and manner of the application itself in relation to the progress of the case:

(see Selkent Bus Company v Moore [1996] ICR 836, 842-844, per Mummery LJ);

(5) in relation to orders sought for discovery of documents, again the power now in Rule 4(5) of the Rules of Procedure is one for the discretion of the Employment Tribunal: discovery is not automatic, but may be ordered so far as necessary to dispose fairly of the issues in the case or for the saving of costs;

(6) the exercise of the tribunal's procedural powers are now expressed to be subject to the overriding objective defined in paragraph 10 of the Regulations, which includes saving expense and dealing with the case in ways which are proportionate to the complexity of the issues.

12. The Applicant's case on the appeal was that we should overrule the Chairman's exercise of discretion on these two procedural matters. His contentions were set out in writing in the grounds of appeal dated 12 November 2001 annexed to the Notice of Appeal, together with two further documents headed respectively "Skeleton arguments Monday 14 January 2002", consisting of 49 pages and 190 paragraphs, and "Skeleton arguments Tuesday 15 January 2002" a further 29 paragraphs, with further supplemental bundles of documents to which he directed our attention, and two extended addresses to us at the appeal hearing. We did find difficulty in getting him to focus his arguments into specific submissions of law directed to the relatively narrow task for us on an appeal of this nature, namely to identify whether there was anything wrong as a matter of law in the Chairman's discretionary decisions or not. So far as relevant to that task, his submissions boiled down to the following points. We were not satisfied that there was anything in the remainder of the written material and oral argument he presented to us that added materially to them for the present purpose.

(1) The Chairman had erred in failing to give more detailed reasons for his decision not to allow either of the applications. In our judgment that is not well founded. There is no requirement in the Tribunal Procedure Rules to give reasons in extended form for an interlocutory decision such as this and (accepting for this purpose that such decisions are subject to the general requirement for a sufficient explanation of a judicial decision by a tribunal to be given to enable the parties to understand the result and the reasons for it, which must be a matter of degree depending on the context) we are satisfied that the explanations given in the letters of 6 and 30 November, though succinct, were adequate in the circumstances. No reasonable person could have been left under any misapprehension that (a) the amendments sought had been declined, because an essential element of any protected disclosure claim had not been identified and in any case the fresh complaint was out of time, as pointed out in the letter of 30 November; and (b) the discovery application had been rejected as excessive and disproportionate as stated in the letter of 6 November. Even if we are wrong in that conclusion, we are quite satisfied that for the reasons given below the Chairman reached the only decision any reasonable Chairman could have reached on such applications in the context in which they were made; and accordingly there is on any footing no material error of law in the failure to explain the reasons for rejecting them more elaborately.

(2) The Chairman's refusal of the two applications was unreasonable and perverse, because (a) it deprived the Applicant of the opportunity he sought to have all matters of dispute between himself and HSBC arising out of his association with them litigated together, (b) it deprived him of the ability to obtain further documents to assist him in formulating and pursuing what he said was the major issue between them arising out of the alleged verbal contract, for which he said the compensation could run into tens of millions of pounds, and/or (c) because the Chairman having given what the Applicant personally had understood to be an indication in paragraph 5 of the directions letter of 15 August 2001 that if the additional basis of complaint was spelt out in detail it would be likely to be admitted, it was wrong not to allow the amendment after all when the Applicant had supplied as much detail as he had in his letter and enclosures of 25 October 2001 and subsequently. None of those arguments, in our judgment, is of any substance. Having looked at the extremely diffuse way in which the Applicant was seeking to extend and broaden the scope of what were otherwise straightforward and specific issues in the case on the unfair dismissal claim, we have concluded that it could not possibly be said that the Chairman was perverse in rejecting the application to amend and its associated application to extend the scope of discovery, as put forward on 25 October 2001 and subsequently. Indeed, it could be fairly said to have been perverse and oppressive to the Respondents had such applications been allowed. The point about the terms of paragraph 5 of the directions letter of 15 August 2001 is plainly unarguable, since the only indication there given is the entirely neutral one that if any renewed application to amend is to be considered the claim must be specified and spelt out properly, and in any event as pointed out in the letter of 30 November 2001 the Applicant had failed after a further two months even to do that.

(3) The refusal to allow the amendments and a related extension of discovery was additionally perverse, because in any event the additional sentence the Applicant had been allowed to add to his unfair dismissal application by the Tribunal on 15 June 2001 had the effect of adding claims for (a) unlawful deduction of wages and/or (b) protected disclosure to the Originating Application anyway, so that any later exclusion of such claims was unwarranted. That in our judgment is an absurd proposition, which we reject: for the reasons indicated in paragraph 3 above the amendment allowed in on 15 June 2001 did no such thing.

(4) That refusal was also perverse since for the reasons explained in paragraphs 14 and 28 of the letter of 8 November a fresh claim introducing these allegations was then still open to the Applicant, and these were two claims that in his own words "go to the heart of my dispute with the bank". Again we have been unable to see that there is any substance in this point: the applications to amend and extend discovery were self-evidently seeking to expand the scope of the proceedings beyond the proper ambit of the unfair dismissal claim, and as the letter of 30 November noted the attempt was being made long outside the prescribed time limit from the termination of the Applicant's employment.

(5) The Chairman had further erred in failing to accept those two paragraphs in the Applicant's letter of 8 November 2001 as being the lodging of fresh claims by way of Originating Application with the Tribunal, and further or alternatively, the decision communicated in the letter of 18 December 2001 not to alter his previous rulings had the effect of striking out the fresh claims the Applicant had thus made. Again we reject such contentions as completely unarguable in law. No reasonable person could have taken the references in the Applicant's letter of 8 November 2001 to his ability to bring fresh applications (there deployed obviously as arguments in favour of allowing an amendment to the existing proceedings) as the lodging of fresh complaints to the Tribunal without any attempt at operating the normal procedure by way of Originating Application (of which the Applicant was, of course, well aware having used it already). The Applicant's complaints of the Chairman wrongly "striking out" valid subsisting claims are completely misconceived: so is the general suggestion made at various points that the chairman had in some way erred by not entering into more dialogue with the Applicant about how his wider claims might best be pursued.

(6) Further or alternatively, the Chairman had erred in failing to order more specific disclosure of at any rate some of the additional documents the Applicant said he wanted, since these ought to have been recognised as relevant to his unfair dismissal claim even if the scope of the existing proceedings was not formally extended; if the chairman was not satisfied of their importance, he should have held a hearing into the facts about what verbal contracts existed between the Applicant and HSBC before deciding the disclosure application. We reject those submissions also. There had already been the express order for discovery in the directions of 10 August 2001, of all documents relevant to the issues to be considered by the Tribunal on unfair dismissal. We have not been persuaded that the Chairman erred in declining to add to this any or all of the further broad categories of documents asked for by the Applicant in his "Discovery" document of 25 October 2001: it seems to us he was plainly justified in rejecting these requests as disproportionate. Indeed, the specific categories to which the Applicant directed our attention in his submissions under this head still all appeared primarily directed to the pursuit of his "verbal contract" compensation claims, as the third paragraph of his covering letter had suggested. As he candidly said at another point in his argument, the basic reason he wants these proceedings extended and this additional material supplied is to get the evidence he needs to pursue the totality of his disputes against HSBC, in particular the intellectual property dispute, having so far elected not to pursue these in the ordinary courts.

13. We have concluded that nothing in any of the written or oral material the Applicant presented to us demonstrates any error of law on the part of the Tribunal Chairman in the procedural decisions complained of. For those reasons we unanimously dismiss this appeal.