United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR K PLATTEN (Solicitor) Messrs Hamers Solicitors Waterside Business Park Livingstone Road Hessle HU13 OEJ
For the Respondents	MR C BOURNE (of Counsel) Instructed by: Messrs Bridge McFarland Solicitors 19 South Street Mary's Gate Grimsby Lincs DN31 1JE


 


JUDGE PETER CLARK

1. This is an appeal by the Respondent employer, D R Simpson (Chilled Foods Ltd) against the Interlocutory Order of an Employment Tribunal sitting at Hull under the chairmanship of Mr J A Pickard on 31 January 2001 which reads as follows:

"For the avoidance of doubt and to confirm the Tribunal's determination communicated to the parties before the start of the hearing it is ordered that the Tribunal will consider complaints based on Regulation 5(1) of the Part-Time Workers (Prevention of Less Favourable Treatment Regulations) 2000 in addition to the existing complaints."

Those existing complaints were complaints of unfair dismissal and unlawful indirect sex discrimination.

Background

2. Both Applicants were employed by the Respondent at their fish processing factory in Hull originally full-time and later, following their return from maternity leave, on an agreed part-time basis.
3. Both were dismissed by reason of redundancy, Miss Allen on 7 July and Mrs Stafford on 15 July 2000. Following their dismissals each presented an Originating Application to the Leeds Employment Tribunal on respectively 21 September and 4 October 2000.
4. The nature of each Applicant's case was the same. It was that part-time employees were selected for redundancy first, with full-time staff being subject to additional/alternative criteria. It was contended that dismissal in these circumstances was unfair and further that it amounted to indirect sex discrimination in that all three part-time employees were women; that they had in the past worked full time but had transferred to part-time working by agreement with the Respondent in recognition of their child-care commitments and that by selecting part-time staff first for redundancy the Respondent was indirectly discriminating against the Applicants.
5. The claims were resisted. It was contended by the Respondent that the need for part-time employees had ceased or diminished, that the dismissals were fair and that there was no adverse impact on women in the Respondent's redundancy selection criteria.
6. On 1 July 2000, shortly before these Applicants' dismissals, the 2000 Regulations came into force. They were designed to implement the Part-Time Workers Directive 97/81/EC. The Regulations were not referred to in the Originating Applications as originally presented.
7. On 15 November 2000 both complaints were combined and on 13 December solicitors acting for both Applicants wrote to the Tribunal, the substantive hearing by then having been listed for 31 January 2001, enclosing draft Amended Originating Applications, adding a claim of less favourable treatment contrary to Regulation 5(1) of the Regulations. No amendment was made to the factual content of the Particulars of complaint.
8. In that letter the Applicants' solicitors submitted that the amendment did not alter the factual basis of the claim but accepted that the amendments sought were outside the primary limitation period and invited the Tribunal to exercise its discretion to consider the new complaint out of time if just and equitable to do so.
9. That application was opposed by the Respondent's solicitors by letter dated 18 December and on 28 December 2000 a Chairman, Mr Simpson, refused the application to amend, directing that if the Applicants wished to pursue a fresh head of complaint they should submit new applications.
10. No further applications were lodged and no appeal was then lodged against Mr Simpson's Order. The parties then appeared before Mr Pickard's Tribunal on 31 January 2001. The Reasons given by the Tribunal for their Order made on that date are contained in a written Order dated 29 March 2001 and read as follows:

" REASONS

1. A cursory glance at the IT1 an IT3 shows more than a possibility that the said Regulations apply.

2. An earlier application to amend the IT1s to include the said Regulations was already out of time.

3. The Tribunal has a general power to regulate its own procedures and often a complaint is added to those filed if it seems in the interests of justice.

4. The earlier decision of a chairman in an administrative position at the time should not preclude a full Tribunal taking a different view."

The matter was then adjourned and has not been restored before the Employment Tribunal pending the outcome of this appeal.

The Appeal

11. Mr Platten submits that the Hull Tribunal effectively granted the Applicant's permission to amend their Originating Applications to add a new cause of action under the Regulations contrary to the earlier refusal by Mr Simpson to allow that amendment, and that in the absence of any change in circumstances, of which there were none, that was an error of law and practice. See Goldman Sachs Services Ltd -v- Montali [EAT 1203/01 19 October 2001 Unreported]. Alternatively, he submits, an issue estoppel arose between the parties. See Lennon -v- Birmingham City Council [2001] IRLR 826 (CA). First City Insurance Brokers Ltd -v- Jones (EAT 897/00 12 July 2001 Unreported). Accordingly he submits that the Order of Mr Pickard's Tribunal should be set aside and the Order of Mr Simpson be affirmed, thereby precluding the Applicants from relying upon the Regulations at the substantive hearing of these combined complaints.
12. Mr Bourne submits that no amendment was in fact necessary; that Mr Pickard's Tribunal was merely giving a direction under Rule 16(1) of the Employment Tribunals Rules of Procedure 1993, then in force, identifying the true issues in the case. See Eltek (UK) -v- Thompson [2000] ICR 689; Capek -v- Lincolnshire County Council [2000] IRLR 590.
13. Alternatively, he wishes to pursue an appeal, raised in the Respondent's answer in this appeal, against Mr Simpson's Order refusing permission to amend, such appeal either being in time since Rule 3(3) of the 2001 EAT Rules specifies that time runs from the date on which the Extended Written Reasons for the Decision or Order of the Tribunal are sent to the parties and that since this was an Interlocutory Order, not being a decision for the purposes of Regulation 2(2) of the 1993 Employment Tribunal Procedure Regulations, no Extended Written Reasons could be required of the Tribunal under rule 10(3) of the Rules contained in Schedule 1 to those Regulations. Alternatively, he asks us to extend time for appealing, if that be necessary.
14. Our conclusion is that Mr Bourne fails in his first submission that the Hull Tribunal was simply giving a direction which did not conflict with Mr Simpson's Order refusing permission to amend. In reality, it seems to us that this was a reversal of that earlier refusal. In that sense it was wrong in law, as Mr Platten submits, for Mr Pickard's Tribunal to reverse the Order of Mr Simpson, in the absence of any change in circumstances, for the reasons advanced by Mr Platten. However, we shall entertain the appeal by the Applicants against Mr Simpson's Order primarily on the basis that this is an appeal against an Interlocutory Order for which Extended Reasons cannot be required under the then Employment Tribunal Rules of Procedure. The position remains the same under the 2001 Rules.
15. The Applicants' appeal succeeds as does that of the Respondent. Plainly, in our judgment, the amendment should have been granted by Mr Simpson. It added no new factual basis for the claims contained in the Originating Applications, it merely added a new label. Accordingly, the question of limitation did not arise - see Selkent -v- Moore [1996] ICR 836. Jesuthson -v- London Borough of Hammersmith & Fulham [1998] IRLR 372.
16. Accordingly, in the result, both appeals are allowed. The combined cases will now proceed to a full merits hearing on the claims of unfair dismissal, sex discrimination and under the 2000 Regulations. Permission is granted to the Applicants to amend the Originating Applications in the form of the drafts originally submitted to the Employment Tribunal, under cover of the Applicants' solicitor's letter dated 13 December 2000. The Respondent has permission to lodge amended Notices of Appearance in answer to the amended Originating Applications within twenty eight days of today, if so advised.