United Kingdom Employment Appeal Tribunal

APPEARANCES

 

 

For the Appellant	Mrs Sarah Medlam, Representative 9 Kirkhill Terrace GOREBRIDGE EH23 4LL
For the Respondents	Mrs C Mitchell, Solicitor Of- Messrs Shepherd & Wedderburn Solicitors Saltire Court 20 Castle Terrace EDINBURGH EH1 2ET


 


LORD JOHNSTON:

1. This is an appeal at the instance of the former employee appellant against a decision of the Employment Tribunal not to permit an amendment of her original submission by form of IT1 to the Employment Tribunal. That application was timeously made within the statutory time limit but referred only to a claim for redundancy. The subsequent attempts to amend, which are being presented outwith the statutory time limit, related to a claim for constructive dismissal.
2. The decision of the Tribunal is as follows:-

"Employment Tribunals have a general discretion to grant leave to amend the originating application. There is no time limit per se for making an application to amend. In the present case, it was considered appropriate to hold a hearing in view of the proposed amendment and the objections thereto. In broad terms, a distinction may be drawn between (1) proposed amendments which merely seek to alter the basis of an existing claim, without raising a new distinct head of complaint; (2) amendments which add or substitute a new cause of action but one which is linked to, or arises out of the same facts as, the original claim; and (3) the amendments which add or substitute a wholly new claim or cause of action which is not connected to the original claim at all.

In our view the proposed amendment in this case plainly does not fall within category (1) above. Category (2) is generally described as putting a new "label" on facts already pleaded. The Tribunals have always shown a willingness to permit an applicant to amend to allege a different type of claim from the one originally pleaded, if this can be justified by the facts set out in the original claim. This is often necessary to avoid prejudice and to allow the proper question between the parties to be properly focussed. In "relabelling" cases, it is not appropriate to look at the time limits in relation to the new claims.

Having said that, it is necessary to be able to show that the new claim arises out of facts already disclosed. In the present case, this involves a comparison between the IT1 as originally lodged and the applicant's two letter received by the EOT on 20 November, 2001 and 18 January 2002.

Taking the IT1 first of all, the claim is briefly stated in the narrative at Box 11 but in the context of the claim made in Box 1, the clear inference to be drawn is that the applicant is alleging that her post disappeared. The applicant's letter received on 20 November 2001 mentions "constructive dismissal", but does not in any way disclose the circumstances in which the applicant's resignation was or might have been linked to conduct (i.e. a breach of contract) on the part of the respondents. Similarly, the letter received from the applicant on 18 January 2002 does not say anything that might be construed as suggesting a breach of contract on the part of the respondents. If anything that letter tends to confirm that the applicant accepts that the existence of her post continued to exist. Taking these two letters at their highest, the most that can be said is that the applicant's complaint is that she resigned because the respondents had unreasonably decided to introduce a new layer of management and the introduction of that new layer of management amounted to a breach of contract entitling the applicant to resign and claim unfair dismissal.

In our view, such an exercise is not a "relabelling" one and instead amounts to a proposed amendment which adds a new claim which is only connected with the original claim in the sense that the events complained of occurred in same period. That being so, the time limits referable to the proposed new claim have to be considered and it is to that issue we now turn."

3. Mrs Medlam, appearing for the appellant as a friend, submitted a competent and comprehensive argument that the Tribunal should have considered that what was being attempted by way of amendment was merely a re-labelling of the original claim. She maintained that there being no statutory time limits for amendment the approach of the Tribunal was therefore wrong. She referred us to a passage from Harvey and also to two decisions also bearing on the issue of lay representation, namely, W F Chapman v Goonvean & Rostowrack China Clay Co Ltd [1972] IRLR 124 and British Newspaper Printing Corporation (North) Ltd v Kelly [1989] IRLR 222. She further submitted that a broad approach should be taken because of the lack of representation by a qualified legal person and that, in any event, prejudice to the appellant far outweighed that accruing to the respondents if the amendment was not allowed.
4. Mrs Mitchell, for the respondents, replied to the effect that this Tribunal could only interfere if the Tribunal below had been shown to have either reached a perverse decision or misdirected itself as a matter of law in the exercise of its discretion. It had done, she submitted, neither of these things. Reference was made to the recent case of Yeobah v Crofton [2002] IRLR 634 on the meaning of perversity. The Tribunal had properly considered the facts and had determined the issue both of re-labelling or not, reasonable practicability and prejudice.
5. We have considerable sympathy for the position in which the appellant finds herself but the fact of the matter is that claims of this sort are governed by statutory time limits which must be adhered to unless there is a good reason within the statute for not so doing. The fact that there was no time limit for amendment does not mean that amendments which raise a new case outwith the three months period should necessarily be allowed. The matter here was essentially one for the Tribunal and, whatever may be our own view of the matter, we cannot find any way in which the Tribunal's approach to the matter can be faulted. As Mrs Mitchell submitted, they considered the evidence, particularly the contents of the IT1, and determined the proposed amendment was not a re-labelling case but was, in fact, an attempt to present a new case. We cannot interfere with that decision which was one they were entitled to reach. Equally, we consider their approach both to the question of reasonable practicability and prejudice to be unimpeachable within the exercise of their discretion.
6. In these circumstances, given the limited jurisdiction of this Tribunal, this appeal must be refused.