United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MS M FAGBORUN Free Representation Unit 4th Floor, Peer House 8-14 Verulam Street London WC1X 8LZ
For the Respondent	MR R BRONKHURST Interchange Legal Advisory Service Interchange Studios Hampstead Town Hall Centre 213 Haverstock Hill London NW3 4QP

SUMMARY

Practice and Procedure

Should ET have allowed amendment? ET appears to have had regard to part only of ET file in making decision. Remitted to ET to reconsider the application at commencement of hearing.


 


HIS HONOUR JUDGE J R REID QC

1. This is an appeal by the Applicant, Edward Parsons, against a decision of the Chairman of Employment Tribunals, Mr Hall Smith, at London (South) on 7 June 2004 by which he refused an application dated 1 June, made by the Free Representation Unit on behalf of Mr Parsons, for leave to amend his Originating Application so as to formally include a claim for unfair dismissal on the grounds of protected disclosure, the point being that Mr Parsons was dismissed by the Respondent, Southwark Carers, before he had completed a year's service and he could not therefore claim ordinary unfair dismissal.
2. The reasons for refusing the application are contained in a short letter in these terms:

"The issues were defined at the Hearing For Directions on 27^th February 2004. At such hearing and [on his] earlier letter to the Tribunal the Applicant was not contending that he would seek unfair dismissal as a result of noticing protected disclosures [sic]. The Applicants claim will proceed on the basis that he suffered detriments as a result of making the alleged disclosures. The Chairman will not allow amendment at such a late stage involving a total change of the basis of the Applicant's claim. The Applicant had not made a complaint of unfair dismissal in his Originating Application."

3. The history of the matter is that Mr Parsons who appears to have been rather less than frank about precisely what legal representation he had from time to time, put in an Originating Application with the assistance of his union which was not in a particularly good form. He gave the dates of his employment as Chief Executive of the Respondent's Southwark Carers as being from 6 January 2003 to 5 September 2003 and said in Box 1, in answer to the question "Please give the type of complaint you want the tribunal to decide (for example, unfair dismissal, equal pay)... If you have more than one complaint list them all":

"Protected Disclosure

Disability Discrimination

Failure to Comply with Statutory Obligations"

I should say that those latter two have gone.

4. He did not complete Box 9 which says this:

"If your complaint is not about dismissal, please give the date when the matter you are complaining of took place."

As I say, that was blank. There was then attached to the document a chronology of events.

5. The response to that was a document which does not appear to be dated, in which the Respondents said, amongst other things, at paragraph 9:

"The Applicant has particularised without giving details events that he alleges amount to protective disclosures. However, he has failed to specify what detriment he alleges he suffered and what remedy he is seeking. This failure to comply with the rules to particularise his claim leads the Respondent to conclude that, in so far as it is deemed that this is a live complaint, the Respondent applies for it to be struck out. It is also significant the Applicant has failed to complete Question 9 on the Application Form."

6. The Chairman of the Tribunals of his own motion then made a directions order. That order was in fact made on 19 November but the copy of it sent to the Applicant was evidently lost in the post, perhaps not surprisingly since it was sent to the wrong address I notice, and a further copy of it was sent on 2 December.
7. By that, Mr Parsons was required, amongst other things, to say:

"2. Of the complaint relating to a protected disclosure:

…

(d) are you complaining that you were dismissed because you made a protected disclosure?

(e) are you complaining that you were subject to a detriment because you made a protected disclosure? If so provide details of the detriment."

8. Mr Parsons responded on 9 December and in answer to those questions he said as follows:

"(d & e) I cannot prove that I was dismissed on such grounds but once the Trustees were made aware, it was detrimental to my employment. The subsequent external investigation of the governance proved that the Trustees were lacking in any of the skills required, none of them had received any induction or internal/external training and were not aware of employment law. The previous Chief Executive was dismissed after four months based on the Chair's version of events."

9. What followed after that was that on 11 February following a letter from Mr Bronkhurst of Interchange Legal Advisory Services, representing Southwark Carers, by which he was invited to withdraw his application, Mr Parsons wrote a letter which first of all he said sorry for the delay in replying. He had to seek legal advice from his solicitor at Russell Jones & Walker before replying:

"I [now] agree to withdraw the two complaints as requested in your letter and will seek a remedy to my main complaint regarding my unfair dismissal under the Public Interest Disclosure Act 1998, Section 3, through an Employment Tribunal. I will notify the Chair of the Tribunal in due course."

10. There followed, on 27 February, a directions hearing which was substituted for the hearing which was previously listed to take place on that day in relation to the case and which was aborted as a result of the withdrawal of two secondary complaints. The Applicant put in written submissions to that hearing which contained the following passages:

"The PIDA is to protect workers regardless of the one-year rule under current employment law, and should give immunity to dismissal in the event of the employee 'Whistle blowing' if they discover any breaches of a legal obligation by an employer.

…

Southwark Carers constructed my dismissal after discovering I had made disclosures to the PRTC and Local Authority…"

11. At the hearing on 27 February directions were given for further and better particulars and to set out what the issues were. Following on from that order Mr Parsons put in two documents described as "Reply to Further and Better Particulars". The first which was put in without having received the order contained at the end a reference to the PIDA and concluded:

"The detrimental affect as a direct result of my disclosure caused great stress and health problems, as well as the loss of a ten-year career."

12. The second response under cover of a letter of 3 April concluded:

"PLEASE NOTE

My original IT1 clearly states the main complaint as protected disclosure and therefore encompasses the detriment suffered by way of unfair dismissal under Section 103A of the 1996 Act."

Then it sets out the section, and continues:

"Accordingly, my complaint falls within the time limits for making such a complaint. Regardless of the wording used in the IT1, as unfair dismissal would not comply due to my employment being under one-year. I therefore request that my complaint be deemed a valid complaint and dealt under the Public Interest Disclosure Act based on the interpretation of the above Act Section 103A. I hop that this now clarifies the case, as the discussion on the 27^th February regarding the wording used on the IT1 seemed to be misunderstood."

13. The Order, headed a 'Case Management Order', had said:

"1. The Applicant's complaint before the Employment Tribunal is that he suffered detriments as a result of making protected disclosures. In response to an Order from the Tribunal dated 19 November 2003 which asked the Applicant whether he was complaining that he had been dismissed because he had made a protected disclosure, the Applicant alleged that the making of such disclosures had been detrimental to his employment. The Applicant had not made a complaint of unfair dismissal in his Originating Application which was presented on 10 October 2003."

So that appeared to be construing the IT1 in a manner contrary to that for which Mr Parsons contended.

14. That Order was not subject to any appeal and there matters effectively rested when the Free Representation Unit in the person of Ms Fagboran came on the scene in May, though it appears that Mr Parsons had indicated considerably earlier than that that he hoped to have them on board.
15. It was as a result of her coming on the scene that on 1 June the FRU wrote to the Tribunal in these terms:

"I should be grateful if you would put before a Chairman my request to clarify the issues involved in the case.

It is clear from the Applicant's ET1 that Mr Parsons is claiming both to have been subjected to detriment and unfairly dismissed because of the protected disclosure.

Mr Parsons was unrepresented at the Directions Hearing on 27 February 2004, in which he submitted that one of the issues to be determined was whether or not he was unfairly dismissed by the Respondent for making a protected disclosure. My instructions are that this submission was rejected on the basis he did not have the requisite qualifying period of service. The Employment Rights Act 1996, section 108 (3) (ff) provides that the qualifying period of one year does not apply to section 103A cases (unfair dismissal on the grounds of a protected disclosure).

Paragraph 1 of the Case Management Order dated 29^th March 2004 does not appear to include unfair dismissal as one of the issues to be determined. The date set for service of the Further and Better Particulars was 26^th March 2004. This meant that Mr Parsons had not received the Order before sending the Further Particulars, and so would not have been aware of paragraph 1.

I should be grateful if you would put before a Chairman my request to formally amend the originating application in this matter, so that box 1 now reads:

Whether I have been subjected to a detriment, alternatively unfair dismissal, by my employers for making a protected disclosure.

The Respondent responded to the claim on the basis that dismissal was implicit in the claim. In paragraph 9 of their ET3, they state 'If, however, he is alleging that he was dismissed because of protected disclosure…' Therefore, this amendment/clarification will not cause hardship or injustice to the Respondent.

It is submitted that as the claim for unfair dismissal is implicit in the facts already pleaded, but not expressly identified as a claim, the issues to be determined should be amended to include the unfair dismissal."

It was that letter which led to the Order which I have already read, against which appeal is now made.

16. I have heard helpful arguments on both sides, but at the end of the day it seems to me that I have to come back to what it is that is said in the decision letter and the problem I have when I see that decision letter is that it is far from clear precisely what it was that the learned Chairman had before him when he made his decision. He could properly have started from the point that the Order of 27 February determined as between that parties that the Originating Application did not include a complaint of unfair dismissal and that is what he appears to have done.
17. However, it is far from clear what else he had in mind. He had not had the advantage of any submissions, oral or in writing, from either side when determining this matter. He merely had the letter and whatever he had happened to see on the file. It appears that the matters which were in his mind were the Order of 27 February and the earlier letter of 9 December, but it also appears that he took the view that this application, made at a very late stage, because the hearing of the matter is due next Monday, involved a total change of the basis of the Applicant's claim. Whilst it is true that the Applicant had not made a complaint of unfair dismissal in his Originating Application on the construction adopted by the Tribunal at the end of February and not appealed, there were explicit statements that this was the basis of his claim in a number of documents going back at any rate to the submissions made on 27 February and also the request for further and better particulars of 2 April.
18. Given that those matters are not expressly referred to, I cannot see either expressly or implicitly or inferentially how it was that the Chairman came to discount those matters as seeking to raise an allegation of unfair dismissal admissible under section 103A. Therefore it seems to me that the reasons that we have for this decision are not, to use the old-fashioned expression, "Meek compliant".
19. I have been referred to the well-known passages in the Selkent case and to other cases which have sought to apply Selkent, including in particular Childs v Pegasus decided by the President and two members on 22 January 2003, and Street v Derbyshire decided in September 2003 by Judge McMullen and two members.
20. Overall, I am not clear that, though the learned Chairman clearly had Selkent in mind, he had also in mind the other material which was there on the file. It follows that in my judgment therefore the decision is not one which can stand but equally it does not seem to me that it is appropriate in a case of this sort where the Appeal Tribunal is confronted with a short Notice of Appeal and a comparatively brief appeal bundle, that I should substitute my own discretion and make my own decision as to what the appropriate answer to the application for leave to amend is.
21. I take the view that this is a matter which should go back, the decision of 7 June having been quashed, to be reheard (and it can conveniently be reheard on Monday morning) and that on that occasion, with the benefit of argument from both sides, the Tribunal can decide whether the ET1 did contain such a claim under section 103A, whether that matter has already been determined between the parties and, in either event, whether, against the background as they find it, it is then appropriate, taking all the appropriate Selkent factors into account, for leave to amend to be granted so that this section 103A claim appears loud and clear on the face of the application.
22. No doubt there will be ferocious argument as to whether this is the introduction of a wholly new claim out of time, whether it is unfair to the Respondents to seek to introduce it at such a late stage, whether there is good reason why the application is being made at so late a stage and all the other matters which are customarily argued on applications to amend of this sort. Those matters can then be resolved by the Tribunal and, having done so, the Tribunal can then determine whether or not to proceed with the hearing or whether the hearing needs to be adjourned.
23. So, my formal decision is that the Order of 7 June is discharged, the appeal is allowed and the matter is remitted to be reheard by the Employment Tribunal at the commencement of the hearing on Monday.