United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR A ELESINNLA (of Counsel) Instructed by: Quantum Employment Law Consultants 45 Laleham Road London SE6 2HS
For the Respondents	NO APPEARANCE OR REPRESENTATION BY OR ON BEHALF OF THE RESPONDENTS


 


THE HONOURABLE MR JUSTICE BURTON (PRESIDENT)

1. This is the full hearing of an appeal by Karen Corcoran against the refusal by the Chairman of the Employment Tribunal sitting alone on 2 August 2002 to allow her to amend her Originating Application dated 11 July 2002.
2. That Originating Application was in time and was in respect of her dismissal by the Respondents on or about 28 January 2002. The allegation in the Originating Application was for compensation for unfair dismissal. She sought, by the amendment, to add two fresh causes of action and the amended Originating Application is dated 11 July 2002 and it was drawn by Quantum Employment Law Consultants, the representatives of the Applicant, who sent a letter to the Regional Secretary for the Tribunals, dated 12 July 2002, in which they requested permission to amend on her behalf, indicating that they had only recently been instructed.
3. That proposed amended Originating Application, as well as repeating the case for unfair dismissal, sought to add the following two causes of action:

(i) Automatically unfair dismissal on the grounds of pregnancy; and

(ii) Sex discrimination;

the asserted case being that the dismissal of the Appellant, which the Respondents have claimed to be a fair dismissal, was by virtue of her pregnancy. So far as sex discrimination is concerned, the particulars given of that case were simply that she was dismissed when she was four months pregnant and thus the Respondents unlawfully discriminated against her on the grounds of her sex.

4. The Chairman refused the amendment, as I have indicated. The main ground for his refusal is set out as being the imminence of the hearing date, which was then fixed for 12 August. When the hearing took place on 12 August, it became apparent that, the claim being against a partnership, in the Tribunal's opinion a recent ex-partner ought to have been joined, on the basis that the partnership had ceased trade and dissolved on 25 January, and that that fact might have some relevance to the determination of the Appellant's employment. Indeed, on the basis of the Respondents' case, the very dissolution of the partnership was said to be the only reason (or at any rate the primary reason) for such termination, both in itself and by virtue of the consequential drop off (or anticipated drop off) in business.
5. So, the Tribunal Chairman hearing the matter on 12 August (a different Chairman) ordered joinder of Shore Lettings (which has turned out to be a Mr Christopher Shore) as the second Respondent, and adjourned the hearing to another date. It appears to be conceded that the matter would have to be started again. That is certainly the belief of the representative Mr Elesinnla, who is here today on behalf of the Appellant, as being the likely outcome.
6. But, in any event, insofar as it is restored, it is not going to be restored, it seems, for some time. That is obviously unfortunate given the relatively short nature of the dispute between the parties, but there is no presently fixed date for restoration of the hearing, and the matter ought plainly now to be restored as soon as possible, but imminent this hearing can, unfortunately, no longer be said to be. Therefore, insofar as imminence was the primary (or possibly major) factor in the view of the Tribunal Chairman who refused this amendment, that is no longer a factor. But of course imminence would only have fallen under the heading of prejudice, and it would plainly have been prejudicial to a Respondent to have to face a new case so shortly before a hearing and there would also have been the inconvenience to the court and the parties arising out of a very late amendment. The matter must, nevertheless, still be considered under the usual principles of law relating to amendments of Originating Applications in the Employment Tribunal, in which objections as to prejudice or inconvenience are only part of the factors to be considered.
7. The leading case on the topic, as indeed was recognised by the panel of this Appeal Tribunal which allowed the appeal to proceed on the Preliminary Hearing, is Selkent Bus Co Ltd v Moore [1996] ICR 836. It is in that context in which the matter has been considered before me today.
8. Whereas Mr Elesinnla has appeared on behalf of the Appellant, the Respondents indicated, as they are entitled to do by a Notice to that purpose, that they did not intend to incur further costs by attending before me today, but relied upon the Respondents' Answer, which they duly filed in time. The new second Respondent plays no part.
9. The first question is whether it can be said that the cases now put forward by these two new causes of action fall inside or outside the Originating Application which was served in time. If, albeit on a charitable approach, it can be said that the cause of action was explicit or implicit, or arises out of the same facts without more as a cause of action which was covered by the Originating Application, then to that extent the interference with the ordinary limitation period is the less. Selkent is itself a helpful source for consideration as to the factors to be taken into account in that regard.
10. So far as this case is concerned, the Originating Application, as I have stated, was one for simple unfair dismissal, setting out the facts inter alia that the Applicant went to work at 9.30 a.m. on 28 January, and was told by Mr Curtis on behalf of the Respondents that he would have to make her redundant, because he did not want her doing lettings any more and was dissolving the partnership with Mr Shore.
11. That was said to be unfair dismissal, both because of the shortness of the notice and the circumstances in which it was given, but also by virtue of what was set out as follows:

"The reason he gave is a hollow one, as adverts in our local newspaper The Mercury continue to carry adverts for property lettings. Also he advertised for a trainee lettings negotiator after my dismissal."

12. The fact is recited that this made things very difficult for the Applicant, because she was four months pregnant, but it does not specifically assert that she was dismissed for that reason. The Originating Application continues:

"I took advice from Plumstead law centre, which was that I had a case for unfair dismissal and they gave me some numbers of solicitors who might be able to help. I did speak to a solicitor who gave me the paperwork, which I filled in and sent off."

The Originating Application is, as I have said, opposed by the Respondents, and their grounds are set out in a lengthy Notice of Appearance in the Employment Tribunal.

13. Mr Elesinnla relies on the mention of the pregnancy in the Originating Application as bringing the matter within Selkent, and such that, upon what I referred to earlier as a charitable approach, it can be said that although there is no claim for automatic unfair dismissal by virtue of pregnancy the claim should be so read; or at any rate, if it is now permitted to be amended it is not doing anything other than spelling out what was implicit in the original pleading.
14. The Respondents have in their Answer vigorously opposed the amendment in order to plead the automatic unfair dismissal claim. In a lengthy and well-argued Respondents' Answer the case is set out by way of reliance on Mr Peter's decision which include the following:

"Whilst it is appreciated that the Applicant mentioned pregnancy in her Originating Application, there is no indication of an unfair dismissal on grounds of pregnancy as the particulars attempt to show that there was no redundancy."

15. It further relies on the fact that the Chairman exercised his discretion judicially, that there was no satisfactory explanation as to why the new grounds, which must have been known to her at the time of the Originating Application, had not been put forward in the original Application, and that the reliance by the Chairman on the timescale should not now be ignored simply because time had moved on, but rather that this Tribunal should only interfere where the Tribunal Chairman failed to exercise his discretion judicially and correctly at the time.
16. There is a separate and additional defence made out in relation to the sex discrimination claim which reads as follows:

4.8 "The sex discrimination claim was an entirely new claim unconnected with the original claim as pleaded (which was an unfair dismissal claim)."

That is expanded in a number of sub-paragraphs of the Answer.

17. It is pointed out that the limitation period for the bringing of the sex discrimination claim expired on 28 April 2002 and that it would not be just and equitable to permit the sex discrimination claim to be brought outside the limitation period. That would of course be the test if this were not an application for leave to amend an existing Originating Application but were a fresh application. But they submit that because it is so plainly not covered within the present Originating Application, and that no explanation is given as to why it was not included, it should be treated as if it were an application for an extension of time. They submit that no such extension should be granted, for the reasons there set out.
18. I turn then to my conclusions:

(1) The Automatic Dismissal on Grounds of Pregnancy

19. It appears to me that this does just fall within the terms of the Originating Application and that consequently this is the kind of amendment for which a more sympathetic approach can be adopted by a Tribunal faced with an application for an amendment. The cause of action, namely unfair dismissal, is the same. The facts remain the same and this is now a new express allegation that the dismissal was by virtue of the pregnancy.
20. So far as prejudice to the Respondent is concerned, the delay to the hearing or imminence of it is no longer a factor and I am satisfied that if there had not been that factor the Chairman would have exercised his discretion if he had addressed himself plainly to the decision in Selkent Bus Co Ltd v Moore [1996] ICR 836, which, although well-known and although I am sure in the mind of the Chairman when he reached the decision, is not expressly spelt out by him.
21. I would grant permission to amend this claim in order to add the particulars limited to automatic unfair dismissal on the grounds of pregnancy.

(2) Sex Discrimination

22. So far as sex discrimination is concerned, this was not an application for sex discrimination and to turn it into one would undoubtedly make it different in terms of cause of action from what it was. It cannot be ignored that the real reason why the Appellant is seeking to amend in this regard is in order to expand the jurisdiction of the Tribunal and increase the recovery of compensation, because of course the limit of £50,000, if that ever becomes appropriate to be considered, is not applicable in sex discrimination cases as it is in unfair dismissal cases and there is doubt in unfair dismissal cases, to say the least of it, as to whether damages for injury to feelings is recoverable, while there is no such doubt, if proved, in relation to a sex discrimination claim.
23. That appears to be the motivation lying behind the amendment of this claim, and of course the very recital of possible advantages to the Applicant carries with it the concomitant detriment to the Respondents, who are entitled to say that there should be some good reason put forward as to why that claim, which enlarges a case already made and is different from it, should be allowed out of time with the inevitable disadvantage to the Respondents.
24. The Respondents recite among others in the Answer, as being disadvantages, not simply the compensation considerations as to compensation to which I have referred, but also potential cost consequences for them in determining a comparator. I am far from persuaded, in the light of Mr Elesinnla's helpful submissions, that that is in fact a relevant factor, or that it would be necessary for a comparator to be identified in this case. But leaving that aside, it is plain that if this amendment is allowed there would be more than the usual detriment suffered to a respondent by the addition of an extra cause of action.
25. So, the issue comes outside Selkent Bus Co Ltd v Moore, because I am satisfied that this is a claim which did not fall within the Originating Application as originally drawn, such that I must ask whether, in the exercise of discretion, this fresh case should nevertheless be admitted.
26. Although this is not an application for an extension of time on the just and equitable ground, plainly similar considerations arise, as I said earlier. Mr Elesinnla pointed out that in the letter seeking an amendment, dated 12 July, to the Chairman, the fact was prayed in aid that the Applicant did not receive legal advice and/or representation prior to the law consultants who wrote the letter being instructed. That is not, as I see it, the case, as Mr Elesinnla has accepted in argument, because of the very recital which I quoted earlier in her own Originating Application that she had taken advice from Plumstead law centre, and indeed from another solicitor.
27. It appears to me that this is a case in which there was the opportunity to bring a sex discrimination case if it had been appropriate to do so, that she had plenty of time in which to consider it, and indeed took legal advice from not one, but two, sources, and did not bring it.
28. In the light of the authorities and the prejudice to the Respondents, and in the absence, in those circumstances, of any adequate explanation at all as to how a claim for sex discrimination did not come to be made in the original Originating Application, I refuse the amendment in that regard.
29. I will require an amended Originating Application which deletes the sex discrimination claim to be served within 3 days on the Respondent; but leave is otherwise granted for an amendment to add the automatic dismissal on grounds of pregnancy cause of action only.