United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MISS K NEWTON (of Counsel) Instructed by: Messrs Hodge Jones & Allen Solicitors Twyman House 31-39 Camden Road London NW1 9LR
For the Respondent	MR J WALTERS (of Counsel) Instructed by: South Wales Police Legal Services Police Headquarters Cowbridge Road Bridgend CF31 3SU


 


HIS HONOUR JUDGE D SEROTA QC

1. This is an appeal from an Interlocutory Decision of the Employment Tribunal sitting in Cardiff on 10 July 2003, chaired by Dr Rachel Davies who in fact was sitting alone; and on that occasion she declined to permit an amendment to the Originating Application of this claim to make allegations of discrimination on grounds of race, discrimination on ground of sex, the claim being treated as simply a claim for unfair dismissal.
2. The background circumstances are these. The Appellant, Mrs Matthews, commenced employment with the South Wales Police as long ago as 1989 as a Traffic Warden. She claims that as a result of harassment at work which spilled over to uncalled for visits to her home during the period when she was ill, she went off sick in May 1999. She was sick, she maintains, with some kind of stress-related or depression-related illness which has not really been clearly spelled out.
3. The Respondent, faced with the fact that the Applicant had been absent from work for some considerable time and showed no signs of being able to return to work in the immediate future, gave notice to terminate her employment to take effect on 20 March, giving an effective date of termination of 11 June.
4. On 9 June the Applicant issued her Originating Application. She was acting in person and it was necessary to look at her Originating Application, in particular box 11, in which she sets out the details of her complaint.

"After ten years of dedicated service, my contract was terminated after ten months off work suffering from stress/anxiety and latterly depression due to being bullied in work, and additionally harassed at home whilst recovering from surgery.

The decision to terminate my contract is not based on medical evidence available to the Police force at the date of my dismissal.

The force have been informed of the bullying I have experienced, I have attempted to carry out a grievance but this was deliberately thwarted.

I have offered work access to my medical records before I was dismissed and in my appeal, work has chosen to act unreasonably by ignoring the medical evidence.

Work have made no effort to seek independent medical evidence, but have relied on the force's doctor's out of date opinion, the fact that the force's doctor was still requesting me for attendance at medical reviews indicates the need to keep abreast of my medical condition, rather than rely on outdated information."

5. At some point in time, and I am not altogether certain when, Mrs Matthews' proceedings were stayed as a result of disciplinary enquiries and proceedings taken by the Respondent in relation to other persons. These proceedings had a relationship to the allegations being made by Mrs Matthews.
6. There was a pre-hearing review in January 2001 and further and better particulars were provided in manuscript by a gentleman I believe to be her partner who was acting on her behalf. It is right to say that these further and better particulars made no reference whatever to disability discrimination but do refer to discrimination and less favourable treatment in relation to a potential claim for victimisation. The Respondent maintains that it did not appreciate that there was pregnant in the Originating Application a claim for disability discrimination as well as one for unfair dismissal.
7. New solicitors came on the record acting for Mrs Matthews and a directions hearing took place on 9 February when Mrs Matthews was ordered to give a summary of her case which she provided dated 11 April, followed by a document dated 19 June entitled "Disability Summary". It is right to say that those documents suggest that the Applicant's claim includes claims for discrimination on the grounds of sex, discrimination on the grounds of disability; both in relation to dismissal and also in relation to a failure to make reasonable adjustments under section 6 of the Act.
8. At some point in time Mrs Matthews' solicitors appreciated they needed to get their tackle in order and made an application to amend; and it is that application that came before the Employment Tribunal in Cardiff and in respect of which there is an appeal today.
9. I am extremely grateful to Miss Newton who appears today on behalf of Mrs Matthews.
10. There is no appeal against the decision to refuse permission to add a claim of discrimination on the grounds of sex and although initially Miss Newton had sought to persuade me that there was pregnant in the IT1 a claim for compensation in respect of failure to make adjustments under section 6 she told me in reply she did not pursue that particular application; but she did pursue her appeal in relation to the question of dismissal on the grounds of disability, which would constitute of course direct discrimination under section 5 of the Act.
11. The Employment Tribunal dealt with the matter in this way:

15 "With regard to whether Box 11 reveals an issue to disability, I recognise of course that illness and disability can sometime be connected. But there is no indication in Box 11 that Mrs Matthews is connecting the two in this case. She asserts "stress/anxiety and depression", which is not a "clinically well-recognised illness". Her complaint is that she was dismissed on the basis of "the Force's doctor's out of date opinion". She complains that the respondents "made no effort to seek independent advice". The implication there is that if they had she would not have been dismissed. There is nothing there to suggest disability discrimination."

12. The law in relation to amendment has been settled for some time and the most helpful case is of course the decision that Mummery J in Selkent Bus Co Ltd v Moore [1996] ICR 836 and in that case Mummery J (as he then was, then President of the EAT) drew attention to the need to scrutinise carefully the original Originating Application to see if the amendment was in fact an amendment intended to make entirely new factual allegations which changed the basis of the existing claim or whether it is simply the addition or substitution of another label for the facts already set out in the Originating Application.
13. This Originating Application, as I have said, was prepared by Mrs Matthews in person. Reading it fairly, as I think Mr Walters came to accept himself during the course of his very helpful submissions, I think the Employment Tribunal was wrong to come to the conclusion that it did not sufficiently provide the basis for a claim for dismissal on the grounds of disability. To that extent, and to that extent alone, I am with Miss Newton. I had already indicated to her that I did not consider that the Employment Tribunal could be faulted in relation to its view that there was no section 6 claim pregnant in the Originating Application.
14. How then does that leave the case? Mr Walters, I think with some embarrassment because he recognises the point is an extremely technical point, has submitted that there can be no application to amend in order to add or make clear that there is a claim for disability discrimination because the act complained of, that is to say the dismissal, took place two days after the Originating Application had been issued. He submits that in those circumstances it was premature. He drew my attention to paragraph 3 of the third schedule to the Act which makes it clear that an Employment Tribunal shall not consider a complaint unless presented:

3 (1) "…before the end of the period of three months beginning when the act complained of was done."

15. This Originating Application would have been therefore premature and as the amendment will relate back, it is not possible, he submits, for there to be an amendment because the Originating Application was premature in any event. Miss Newton has very helpfully and candidly conceded that there are authorities that support the view taken by Mr Walters although I have not been referred to them. For present purposes I work on the basis that what she has told us is correct and I am grateful to her for her candour.
16. It seems to me, in those circumstances, as this is a matter that goes to jurisdiction, that I have no jurisdiction to allow an appeal because the Employment Tribunal would not have jurisdiction to permit the amendment. The Employment Tribunal would, however, have jurisdiction to consider an application to allow a fresh Originating Application to be presented out of time on the basis that in all the circumstances of the case it is just and equitable to do so.
17. I have already indicated that in my view (and contrary to that of the learned Chairman of the Employment Tribunal) this Originating Application did have pregnant within it at least a claim for dismissal on the grounds of disability.
18. The point that the application was premature was never taken at any stage. Had it been taken, then an application no doubt would have been made to extend time and a fresh application issued for that purpose. The point indeed was only taken for the first time before the Employment Appeal Tribunal. With his usual and most helpful candour Mr Walters conceded it was not a point that had been made to the Employment Tribunal.
19. In those particular circumstances, and while of course I cannot possibly give any directions to the Employment Tribunal as to the approach it should take, should such an application be made I would confidently expect such an application to be received sympathetically having regard to the fact that, firstly, the Originating Application did contain within it the claim which I have mentioned. Secondly, the fact that as this was a matter that went to the jurisdiction of the Tribunal a point could have been taken at any time by the Respondent but was not and having now been taken it is extremely late in the day. Of course the decision will be for the Employment Tribunal and I can only hope that the Chairman finds what I have had to say of some assistance. The appeal must, therefore, be dismissed.