United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR HOWARD HORSLEY The Appellant in person
For the Respondent	MR ADAM TOLLEY (of Counsel) Instructed by: The Treasury Solicitor Queen Anne's Chambers 28 The Broadway London SW1H 9JS


 


JUDGE D SEROTA QC

1. This is an appeal by the Applicant, Mr Horsley, from a Decision of the Employment Tribunal at London South chaired by Mr C P Baron and promulgated on 23 October 2000. The Employment Tribunal dismissed his claim for disability discrimination on its withdrawal by Mr Horsley. The Tribunal determined that he had insufficient qualifying service to make a claim for unfair dismissal. It refused to allow him to amend his Originating Application to make a claim for victimisation following a protected disclosure, and it also found that the Respondent, the Secretary of State for International Development, was not in breach of contract. He also appeals against a further Decision of the Employment Tribunal promulgated on 14 March of last year, refusing a review.
2. The matter came before the Employment Appeal Tribunal on 26 November last year, presided over by His Honour Judge Clark. The Employment Appeal Tribunal considered a number of grounds of appeal and allowed effectively two matters only to go further. Firstly, whether the Employment Tribunal had jurisdiction to consider the breach of contract claim, and secondly, whether or not the findings of the Employment Tribunal in relation to a breach of contract claim were sustainable. There is some doubt in the transcript as to precisely what the Employment Appeal Tribunal had in mind in relation to the second part of the matter that was to go forward.
3. Nonetheless, whatever may have been said, the Order made by the Employment Appeal Tribunal is quite clear and that Order provides that the matters that were to go to a full hearing were firstly, whether the Employment Tribunal had jurisdiction to consider the breach of contract claim, and secondly, if the Employment Tribunal did have jurisdiction, whether its findings in relation to that claim were sustainable on appeal. The Applicant was dissatisfied with the Decision of the Employment Appeal Tribunal and the matter came before Lord Justice Pill and Lord Justice Chadwick in the Court of Appeal on 2 May of this year, and on that occasion, the application for permission to appeal was refused.
4. The issue that is raised in this case has arisen in an unfortunate way; we will explain the position. In February 1999, Mr Horsley was offered employment as an Education Field Office Manager in Ghana, by the Respondent; his employment began on 6 May 1999. Unhappily in November 1999, he contracted typhoid and was repatriated to the United Kingdom. On 6 January 2000, the Respondent gave three months notice to determine his employment in accordance with the contract which apparently provided for termination on three months' notice. When the Applicant came to issue his ET1, he gave the date for the determination of his employment as being 6 January 2000, his ET1 was issued on 4 April. When the Respondent came to complete its ET3, it ticked box 5, which asked the question "Are the dates of employment given by the Applicant correct?" in the affirmative. However, later, in the Particulars of the grounds upon which the application was resisted, one finds this in paragraph (3):

"(3) The Applicant commenced employment with the Respondent on 6 May 1999. His employment was terminated on 6 January 2000 with three months contractual notice. His effective date of dismissal was 6 April 2000"

In paragraph (5) one finds the terms of the employment contract with the Applicant stated:

"…. the Respondent had "the right to terminate this contract at any time by paying you three months pay in lieu of notice". The Applicant's contract was terminated on 6 January and he received three months pay in lieu of notice in accordance with the contractual terms. The contractual terms having been adhered to by the Respondent the application, insofar as it relates to wrongful dismissal, should be dismissed."

5. It would seem that during the course of the hearing there was common ground between the parties as to the date of determination. That is how it is described by the Employment Tribunal, in paragraph 21 which states that:

"….it was common ground at the hearing that the employment expired on 6 April, 2000."

The Employment Tribunal went on to say that it made no finding as to the date of the ending of the employment contract at common law, or the effective date of termination for the purposes of the Employment Rights Act 1996. It did appear to accept that the parties had agreed that employment terminated on 6 April 2000. The Reasons of the Employment Tribunal were given initially, orally, by the Chairman and at the very end of giving the Reasons which had dealt with the various matters on the merits, he recalled having read a case which turns out to be the case of Capek -v- Lincolnshire County Council [2000] ICR 878 to the effect that an Employment Tribunal only has jurisdiction to entertain claims of breach of contract where those claims are brought after the termination of the contract of employment.

6. We then have the Decision promulgated on 23 October, the last paragraph of which reads as follows:

"During the giving of the oral decision, the Chairman realised that there may be one issue upon which the Tribunal was not addressed, and which did not form part of our reasons for the decision. The claim to the Tribunal was received on 4 April 2000. That was before the day when the parties agreed that the employment terminated. The Chairman recalled that there was a recent authority to the effect that the Tribunal did not have any jurisdiction in breach of contract claims in such circumstances. Mr Tolley has since supplied the Tribunal with a copy of The Times Law Report dated 7 June 2000. The authority is the Court of Appeal decision in Capek v. Lincolnshire County Council."

Mr Horsley sought a review. When he sought his review, he sought to assert that the Employment Tribunal did in fact have jurisdiction to deal with his breach of contact claim. The matter was dealt with, so far as jurisdiction is concerned, in paragraph 17 of the review, which is dated 14 March of last year.

"There remains one final point with which we must deal. As mentioned in paragraph 32 of the reasons for our earlier decision, I remembered the case of Capek -v- Lincolnshire (although not its name) after giving the decision at the preliminary hearing and during the oral giving of the Reasons. The application to the Tribunal was presented on 4 April 2000, and the parties agreed that the employment terminated on 6 April 2000. On the authority of Capek, the Tribunal does not have jurisdiction to deal with the existing application in respect of breach of contract as it was presented before the employment terminated. No fresh application had been made following the termination of the employment. Mr Tolley suggested that as the matter was one of jurisdiction, we could not avoid the issue. On reflection, perhaps the Tribunal should have given notice to the parties under rule 11(3) within 14 days after the hearing that it intended of its own motion to review the reasons for the decision in the light of the realisation of the applicability of Capek. That was not done. This aspect will have to be dealt with by the Employment Appeal Tribunal if the appeal proceeds to a full hearing."

7. We would observe that the course taken in the Employment Tribunal was most unfortunate. Once the point was appreciated it should have been raised with the parties, and the parties should have been asked whether or not they wished to make any further submissions in relation to the question of jurisdiction and the date when employment terminated.
8. It is quite clear that the reason the parties were happy to agree to the date of 6 April for the date of determination, was because this was the last possible date upon which it might be argued that employment terminated, and so far as the Respondent was concerned, even this date would not bring the Applicant within the qualifying period for making an application for unfair dismissal. Furthermore, he was seeking to amend his Originating Application out of time to add a claim for victimisation for a protected act and it was therefore in his interest if the delay between the date of determination of his employment and the date when he sought to amend, was as short as possible.
9. Nonetheless, the parties simply did not have in mind, it is quite clear, and has been candidly conceded by both Mr Horsley and Mr Tolley, who appears now as he did then for the Respondent, the jurisdictional effect of the agreement. We have no doubt whatever that had the parties' minds been directed to this issue, they would have almost certainly agreed a date prior to 4 April. Mr Horsley, after all, was most anxious that all his claims should be determined, including the claim for breach of contract.
10. Further, the last thing that the Respondent would have wished was that the claim for breach of contract should go off to be determined on another day, possibly by the County Court. Nonetheless, as the parties' mind was not directed to the problem, the agreement remained in effect and the Employment Tribunal dealt with the matter on the basis that the agreed date of determination of employment was two days after the presentation of the Originating Application. It is the effect of that agreement which is said, now, to have deprived the Employment Tribunal of jurisdiction.
11. It might be thought that the position taken by Mr Horsley is somewhat opportunistic in that he is now seeking to argue that the Employment Tribunal lacked jurisdiction, having effectively lost on the merits, so that he can effectively re-open in the County Court, issues of breach of contract which have already been determined against him on the merits. However, in fairness to Mr Horsley, he invites us in fact to remit the matter to the Employment Tribunal, not only to determine questions of jurisdiction, but also questions of the merits.
12. It is trite law that parties cannot by agreement confer upon a Court or Tribunal a jurisdiction it does not have. It is also contrary to public policy for the parties to deprive a Court or Tribunal, having jurisdiction over the subject matter of the particular dispute, of that jurisdiction by agreement. In this particular case, the parties simply did not address their minds to the problem posed by the case of Capek -v- Lincolnshire County Council. As we have said, had they done so, they would doubtless have come to a different agreement.
13. Mr Tolley has sought to persuade us that, on the material that was or could have been available to the Employment Tribunal, it is absolutely clear that the date of determination of employment was some time in January. However, the matter was never investigated by the Employment Tribunal. Is Mr Tolley bound by the concession that was made? The relevant authority to which we have been directed is the case of Gale-vSuperdrug Stores [1996] 1 WLR 1089 CA. In that case the Court of Appeal approved dicta in an earlier case, unreported, called Bird -v-Birds Eye Walls Ltd The Times, 24 July 1987. Both sides agreed that the test mentioned by Lord Justice Ralph Gibson in that case was apposite to determine when an admission can be withdrawn, and that:

"when a defendant had made an admission the court should relieve him of it and permit him to withdraw it or amend it if in all the circumstances it is just to do so having regard to the interests of both sides and to the extent to which either side may be injured by the change in front"

14. It is quite clear from the judgment of Lord Justice Waite that this is an issue of discretion and the prejudice to both parties must be weighed in the balance. Lord Justice Millett put the matter in this way:

"The administration of justice is a human activity, and accordingly cannot be made immune from error. When a litigant or his adviser makes a mistake, justice requires that he be allowed to put it right even if this causes delay and expense, provided that it can be done without injustice to the other party. The rules provide for misjoinder and non-joinder of parties and for amendment of the pleadings so that mistakes in the formulation of the issues can be corrected. If the mistake is corrected early in the course of the litigation, little harm may be done; the later it is corrected, the greater the delay and the amount of costs which will be wasted. If it is corrected very late, the other party may suffer irremediable prejudice."

He then referred to a number of authorities which, perhaps no longer are as persuasive as they are, having regard to the introduction of the CPR to the effect that where mistakes can be corrected by an Order for costs, they should normally be allowed. But Lord Justice Millett said this:

"I do not believe that these principles can be brushed aside on the ground that they were laid down a century ago or that they fail to recognise the exigencies of the modern civil justice system. On the contrary, I believe that they represent a fundamental assessment of the functions of a court of justice which has a universal and timeless validity.

In my judgment the same principles apply whether or not the amendment involves the withdrawal of an admission previously made in the pleadings. The position of a defendant who belatedly seeks to raise a new defence cannot sensibly be distinguished from that of a defendant who seeks to withdraw an earlier admission Each is seeking to raise an issue which cannot be raised without amendment; the amendment will almost invariably cause some delay and expense; and it must come as a disappointment to the plaintiff who did not expect to have to litigate the issue now raised for the first time. Nor is the position of a defendant who pleads a defence which is inconsistent with an admission made before action brought materially different from that of a defendant who seeks to withdraw an admission made in the pleadings. If anything, his position should be easier, since his change of stance is signalled at an earlier stage of the litigation, and is less likely to waste time or costs."

Lord Justice Millett agreed with what had been said by Lord Justice Ralph Gibson in the passage which we have already quoted.

15. Now, it seems to us, in this case that, so far as the Applicant is concerned, he has suffered, and will suffer, no prejudice by the withdrawal of the acceptance by the Respondent of the date of 6 April. He had his trial; he had the benefit for the purposes of making his application for an amendment of the later, rather than the earlier date for the termination of employment, and he had his case fully determined on the merits.
16. So far as the Respondent is concerned, the Respondent will suffer very real prejudice if it is held to the concession in that, having made the agreement in good faith without any thought as to the effect of the admission on the jurisdiction of the Tribunal; having fought the case on the merits, it will now be faced with the possibility of having to face that claim all over again. In those circumstances it seems to us that the balance of justice comes down very clearly in favour of the Respondent and that it should be permitted to withdraw the admission that it made.
17. The next question that arises is as to the course that we should follow. Mr Tolley has sought to persuade us, on the basis of documentation and submissions that were not available to the Employment Tribunal, and on documents which were available but not considered by them, that we can, in effect, determine the issue ourselves. We are most reluctant to do so, all the more so because Mr Horsley is a litigant in person. It seems to us, albeit, we feel bound to say, that Mr Tolley's case appears quite strong, that this is an issue which should be remitted to the Employment Tribunal to determine.
18. The next matter that we need to consider relates to whether or not the Employment Tribunal was correct in finding that there had been no breach of contract. Mr Horsley, in his submissions, seeks to rely upon two matters: firstly the late disclosure of documentation by the Respondent. It seems to us that this is not a matter that he has been given permission to raise.
19. Secondly, new documentation that has come into his possession suggests that he should have been regarded as a Civil Servant so that the entire process of dismissal was flawed and of no effect. Again, this is not a matter which he is permitted to raise by the Order of the Employment Appeal Tribunal. We note, however, that these are matters which he is entitled to raise, and is raising, through Civil Service channels. We say no more about that.
20. The breaches of contract which he asserted before the Employment Tribunal were twofold. Firstly he asserted that the disciplinary procedure was a contractual right. This was a matter that was considered by the Employment Tribunal and we can see nothing in their reasoning to suggest that they came to the wrong conclusion. We refer to paragraphs 24 - 27 of the Extended Reasons.
21. The second issue related to a performance review procedure. Mr Horsley argued that if he had had the benefit of the review procedure, any defects in performance would have been identified and corrected and the dismissal would not have taken place. The Respondent submitted that the failure to follow the review procedure was not relevant, as the Respondent had terminated the contract in accordance with its terms, by giving contractual notice, and that the Applicant had not shown he would not have been dismissed before the expiry of a one year unfair dismissal qualification. That submission was accepted by the Employment Tribunal which said:

"We are satisfied that the law is that if an employer terminates the employment contract in accordance with its terms, but without having followed a contractual disciplinary or similar procedure, then the employee is potentially only entitled to damages if it can be shown that the employment would have continued until the employee had acquired the right not to be unfairly dismissed. In this case, we find that the employment of the Applicant was terminated in accordance with the contractual terms. It is pure speculation as to what might have happened if the Applicant had had the benefit of a performance review during the currency of his contract."

22. It seems to us that this was a factual matter to be determined by the Employment Tribunal and we are unable to disturb those findings. We do not consider that there is any point to be made in this regard and in fairness, Mr Horsley did not seek to persuade us otherwise. It seems to us in those circumstances that it would be wholly inappropriate for us to remit issues relating to the breach of contract to the Employment Tribunal.
23. Mr Horsley has asked us to remit the matter to a differently constituted Employment Tribunal. He is concerned that as the first Tribunal found against him, it is likely that they might do so again and, in fairness, we should send the matter to a differently constituted Tribunal. If we were sending this matter back for a full re-hearing, there would be some considerable substance in what Mr Horsley had said. However, in our view, the only matter that needs to be considered is the question of the effective date of determination and this is a matter which it seems to us will largely be determined by the relevant contractual documentation and correspondence.
24. In those circumstances, it seems to us wholly appropriate that the matter should be remitted to the original Employment Tribunal for this particular issue of jurisdiction to be determined. We will, as usual in these cases, direct therefore that the matter should be remitted to the original Employment Tribunal unless the Regional Chairman is satisfied that it is impossible or impracticable for the original Tribunal to be reconstituted, because of the availability of members of the Tribunal to sit.