United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR IDEH (of Counsel) Instructed by: Richard Thorn & Co Solicitors 6 Marlborough Place Brighton BN1 1UB
For the Respondent	MR N DE SILVA (of Counsel) Instructed by: Messrs Bond Pearce Solicitors Oceana House 39-49 Commercial Road Southampton SO15 IGA


 


HIS HONOUR JUDGE PROPHET

1. By an application to the Employment Tribunal at Southampton, dated 4 December 2002, and received by the Employment Tribunal on 10 December 2002, Mr Wheeler complained of an unfair dismissal. He had been employed as a postman for over eighteen years prior to his dismissal.
2. The first point which is apparent from that application, which Mr Wheeler prepared without representation, is that there is no mention in Box 1 of the application form of a complaint of disability discrimination. Furthermore, although the word "discrimination" appears twice in paragraph 11 of the application form, Mr Wheeler does not there state that he was claiming to have a disability.
3. Clearly the employer did not discern from the application form the possibility of a complaint of disability discrimination being put to them because the Notice of Appearance as submitted deals only with a defence to unfair dismissal. That defence was in essence that the reason for dismissal was Mr Wheeler's poor attendance record and that his dismissal for that reason was fair.
4. The case was duly listed for a hearing before the Employment Tribunal in Brighton for Wednesday 26 March 2003. On 19 March of that year Mr Wheeler instructed solicitors to act for him. They immediately sought a postponement of the hearing saying that Mr Wheeler was also claiming disability discrimination, for which further time was needed in order to obtain medical evidence related to that. Leave was also sought to amend the Originating Application.
5. The request for a postponement was refused. That refusal was appealed to the Employment Appeal Tribunal, and we will refer to that hereafter as the first appeal. The President, Mr Justice Burton, held a telephone conference with the representatives and that was followed by an Order issued on 26 March 2003, which recorded that the representatives had agreed that the Employment Tribunal hearing on 26 March 2003 should deal only with the request to amend the Originating Application. Notwithstanding that, on the face of it, that agreement effectively dealt with that first appeal, the Order also stated that the appeal be set down for a full hearing before the Employment Appeal Tribunal.
6. The Employment Tribunal at its hearing on 26 March 2003 duly dealt with the request for amendment and refused it. There was prepared a Decision and Reasons from the Employment Tribunal, under the chairmanship of Mr Bridges, on the amendment issue. That unanimous Decision and Extended Reasons was provided by that Tribunal on 22 April 2003.
7. That led to a further Notice of Appeal, in other words a second appeal, received by the Employment Appeal Tribunal from Mr Wheeler's representative on 13 June 2003. Mr Justice Cox ordered that appeal to go forward to a full hearing. It appears that at that stage a date had already been fixed for the full hearing on the first appeal, in accordance with the Order from Mr Justice Burton, and that was for today's date, 9 July 2003. Therefore Mrs Justice Cox took advantage of that by listing the second appeal to be heard at the same time. We have, therefore to deal with both appeals. We can quickly dispose of the first appeal by accepting Mr Ideh's request for that appeal now to be withdrawn and it is accordingly dismissed.
8. We turn, therefore, to the substance of the second appeal. As already mentioned, Mr Ideh, of Counsel, today represents the Appellant. Mr De Silva, of Counsel, represents the employers. Mr Bridges, in giving his Extended Reasons for the Employment Tribunal's refusal to allow the amendment, referred to what is usually regarded as the essential starting point for any Employment Tribunal faced with an application to amend, i.e. the Judgment of the Employment Appeal Tribunal under the chairmanship of Mr Justice Mummery, as he then was, in Selkent Bus Company Ltd -v- Moore [1996] IRLR 661. That, in our view, is the correct approach, and we are not able to accept Mr Ideh's challenge to that as being an incorrect approach in this particular case. It is clear to us that the Employment Tribunal gave proper consideration to the guidance indicated by that case.
9. The exercise of the discretion which was vested in the Employment Tribunal has to include whether, notwithstanding the absence in Box 1 of the Originating Application of a complaint of disability discrimination, it can properly be ascertained from what is set down elsewhere in the application, and in particular in the details of the complaint, that the application, nevertheless, includes a complaint of that nature. Mr Ideh relies on an unreported judgment of the Employment Appeal Tribunal, presided over by His Honour Judge McMullen on 7 February 2003, i.e. Lewis -v- Corus Group Ltd, but the difficulty with that submission is that each case of this nature turns on its own particular facts. Furthermore, as Mr De Silva correctly submits, our function is not to consider the merits of the request to amend, ab initio, but whether the Employment Tribunal reached a decision which it could properly reach within its discretion.
10. Notwithstanding that there were references in documents before the Employment Tribunal to Mr Wheeler's health problems, the Employment Tribunal considered, with considerable care, what could be ascertained from those documents as being relevant to the issue before them. Furthermore, they clearly had in mind that Mr Wheeler completed the application form himself, but we have noted that he did have access to assistance from his union during the internal procedures related to his dismissal.
11. We are unanimously satisfied that the Employment Tribunal gave all proper regard to whether the references to discrimination in Box 11 of the IT1 could be sufficient to indicate that a complaint of disability discrimination was being made in the Originating Application, as well as a complaint of an unfair dismissal. Their decision that they could not, and their consequential refusal to allow the amendment, was, in our view, a proper exercise of their discretion. It follows that this appeal is dismissed.
12. The Employment Tribunal may now proceed to hear Mr Wheeler's complaint of an unfair dismissal. I have asked for the written version of this judgment, as given extempore today, to be expedited to enable that matter to be attended to by the Employment Tribunal as soon as possible.