United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MISS TESS GILL (of Counsel) Instructed by: Messrs Ward Hadaway Solicitors Sandgate House 102 Quayside House Newcastle upon Tyne NE1 3DX


 


JUDGE D SEROTA QC

1. This is an appeal by the Respondents from the Decision of the Chairman, Mr Milton, at London South, granting the Applicant permission to amend its Originating Application and refusing a review. There is an issue raised in this case by the Respondents as to whether or not there are time limit problems giving rise to jurisdictional issues, so far as the claim for discrimination on the grounds of race is concerned. They will have to be determined by the Tribunal in any event. There are also claims relating to unfair dismissal which are manifestly within time and will have to be dealt with on the merits.
2. The Applicant, apparently, was unrepresented when he filed his Originating Application and he now seeks to supplement his Originating Application by making an additional claim of victimisation. He also seeks to refer to certain incidents which he had not previously referred to. The matter came before the Chairman who dealt with the matter ex parte.
3. It seems to us, and we only mention this in a provisional way as we have not heard submissions on it, that it might have been better had the Chairman followed the guidance given in the Selkent case, once he appreciated that there may have been limitation problems in the amendment and to have invited the comments of the Respondent. Nonetheless, he granted the amendment and the Respondent then invited him to review his Decision, but he declined to do so.
4. He declined to review his Decision and in terms stated that this was a case where there had been a timeous complaint of race discrimination and the amendment mainly amounted to further particular of the claim already presented. It seems to us that this is clearly wrong because the original complaint was made outside the three-month period. Of course, the Employment Tribunal, if it thinks it appropriate, has power to extend that period and, doubtless, he will be asked to do by the Applicant at the hearing which is fixed for next week, 30 September.
5. It seems to us that it is clear that the Chairman has misdirected himself on an important matter and that, therefore, opens the way for Miss Gill to invite us to quash the leave to amend that has been given. Although Mr Martin has sought to justify the Order that was made, it seems to us that by far the best course to adopt is that we should quash the Decision and send it back to the Employment Tribunal. The Employment Tribunal will, in any event, in determining the merits of whatever case goes before it, have to determine whether it is just and equitable to extend time, but it seems to us that there are other matters raised by Miss Gill which she should be entitled to ventilate before the Tribunal.
6. Now, we do not in any way intend to dictate to the Tribunal how they consider the application to amend which will be made again on behalf of the Applicant. Nothing that we say should be taken as being an indication to the Employment Tribunal that they should hold a preliminary hearing or whether they should deal with this matter prior to dealing with the merits of the application, or whether they should deal with it so as to speak in the course of the application.
7. It seems to us that this is a matter that the Employment Tribunal can well determine themselves, and they will have the benefit of submissions and of appropriate evidence in assisting them in coming to a conclusion. If the Tribunal decide to deal with the matter as a preliminary point, then obviously, that can be embarked upon on 30 September.
8. Equally, if they come to the conclusion that they will deal with the matter, so as to speak, as part of the main hearing then, again, they will deal with that on 30 September, but it is entirely a matter for the Employment Tribunal as to how they feel it is appropriate to deal with the application for permission to amend. We are quite willing to give any directions that may assist parties in preparing for that application and we will hear what Miss Gill and Mr Martin have to say.

[Miss Gill] Well, I am rather anxious that my clients may not be ready to proceed on 30 September if, indeed, they are going to have to deal with the victimisation claim, as of that date, because the evidence is not at one. I accept that the scope of the evidence is not very large in this case but, nevertheless, the victimisation complaint does raise a totally different comparison than a direct discrimination complain, and, indeed, an ordinary unfair dismissal complaint, they then have to consider how they resist the allegation that they treated the …

But your client's case is clearly that the dismissal was not on grounds of race and was nothing to do with the complaints that have been made.

Well, that is their case, but the evidence to support that case will vary depending on whether or not the victimisation complaint is to be heard.

9. Well, Miss Gill, this case is within very narrow boundaries and we do feel that the parties should, perhaps, devote their resources to getting the case ready for next week and, again, if you find that as a result of the application you are disadvantaged, and you cannot deal with the matter then the Employment Tribunal can consider whether to grant you an adjournment.

But are there any directions you would to give, for example, do you want any evidence from the Applicant to support his application for permission to amend?

Well, certainly, if he is applying for the primary time limit to be extended, then it would require evidence from him.

Well, Mr Martin, that seems reasonable, does it not?

[Mr Martin] Yes, sir.

When could you do that by?

It would have to be by close of business on Friday, so you appreciate that the 25^th, today ….

10. Well, it could be sent by fax could it not? Yes? Very well, we will direct that the Applicant serves any evidence in support of his application to amend and extend time limits by fax, by 4 pm on the 27^th.

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Now are you going to want to respond to that evidence, Miss Gill?

[Miss Gill] Well it is difficult to know when you do not have any evidence, but it may well be that we will want to respond, but I think it is going to be difficult to do so prior to the actual hearing.

It is not going to be difficult, it is going to be inconvenient - there is a difference.

Yes, I have no solicitor here, it is difficult for me to take instructions.

11. Well, we will give you permission to respond and I am afraid Mr Martin, you are not going to get it until you turn up at the Tribunal.

Now, are there any other directions that you would like us to give? So far as the hearing is concerned, have you agreed a bundle of documents?

[Miss Gill] I have only been instructed on the appeal

[Mr Martin] Yes, I am afraid I have too, my solicitor does not have the full file.

So you do not know?

No, that is the short answer.

Well, I shall imagine you will get a very dusty response if you turn up without a proper bundle. Miss Gill, it has been a pleasure seeing you, and thank you very much for your help Mr Martin, and I hope you will forgive us if we rather truncated your submissions.

[Mr Martin] Sir, one other matter occurs to me, I am legally aided; I am wondering if I need any direction …

If you need one, you can have it, but you should tell us whether you need one. Thank you very much indeed.