United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MISS S HANIF (of Counsel) Pro Bono Unit
For the Respondent	MISS EMMA SMITH (of Counsel) Instructed by: Messrs Withy King Solicitors James Street West Green Park Bath BA1 2BT


 


SUMMARY

Practice & Procedure: Amendment

In determining the Applicant's application to amend his originating application so as to include allegations of post employment victimisation. Is it fatal in such an application that the instances of victimisation (or his knowledge of them) post dates the receipt of the originating application by the Employment Tribunal.


 


HIS HONOUR JUDGE PUGSLEY

1. This is an appeal from the Decision of an Employment Tribunal, sitting in Stratford in which, in a decision promulgated on 30 November 2004, they dismissed the Claimant's complaint that he had suffered direct discrimination, victimisation, post-employment discrimination and harassment, contrary to the Race Relations Act 1976.
2. The Tribunal took some five days to hear and determine the case. Looked at in its totality, this is a clear and well drafted decision. There were, as the Tribunal identified in its Decision, some 15 issues which were raised in the Originating Application. There was an issue as to whether certain matters were out of time and the Employment Tribunal dealt with these matters in paragraph 4 of its Decision. Although the Tribunal decided that there were certain of the matters over which it had no jurisdiction, it correctly directed itself that it could still continue to consider matters to see if such incidents could assist in drawing inferences.
3. However, the Claimant wished to amend and make complaints in respect of which matters had arisen after the presentation of the Originating Application on 10 February 2004. These concern the allegations that the Respondent had been guilty of post-employment victimisation/harassment for refusal to provide a job reference or providing a negative reference.
4. The Employment Tribunal dealt with these matters in terse terms at paragraph 2.3 of its Decision:-

"Both of these matters arose after the Claimant presented his complaint. The Tribunal has no jurisdiction to deal with claims which have arisen after the presentation of the Originating Application. In the circumstances, the Tribunal decided that it did not have jurisdiction to deal with these matters and leave could not be granted to amend".

5. This case has to be seen against the background that the original Notice of Appeal was a 72 page document. At the preliminary hearing before HHJ McMullen QC and Sir William Morris and Mrs M V McArthur, the grounds of appeal were refined to one issue:-

"In the light of:

(a) the amendments to domestic legislation introduced by the Government pursuant to its obligations under European directives; and

(b) the overriding objection

and in determining the Applicant's application to amend his originating application so as to include allegations of post-employment victimisation, the Employment Tribunal erred in law in determining necessarily that it was fatal to such an application that the instances of victimisation (or his knowledge of them) post dated the receipt of the originating application by the Employment Tribunal".

6. We have been referred by Counsel for the Respondent to such authorities as Hendry v Chartsearch [1998] CLC 1 and Maradive & Oil Services (SAE) v Can Insurance Company (Europe) Ltd [2002] EWCA Civ 369 concerning the powers of courts to allow amendments in cases in which claimants seek to include wholly new causes of action or where the complainant seeks to include new causes of action not arising out of the same or similar facts and not raised until after the relevant limitation period has expired.
7. Although we have been grateful for the help we have received from Counsel, we should acknowledge that it was the Appellant who, in written submissions, referred to us an extract from the decision of British Medical Association v Chaudhary [2003] EWCA Civ 645. It is not necessary to deal with the factual basis of that case in any detail. Mr Chaudhary is a surgeon specialising in urology. He has initiated a number of proceedings alleging direct and indirect race discrimination. The cases centre on the application of the criteria for entry into the new grade of Specialist Registrar and entry onto the Specialist Register. The relevant parts of Mummery LJ's judgment are set out at paragraph 79 onwards.

"79. The position was that, at the time when Mr Chaudhary presented his application to the Manchester tribunal (23 December 1998), it was open to him to apply to amend the Southampton proceedings to raise allegations of fresh causes of action, which post-dated the institution of those proceedings. It was submitted that it was not a permissible course of action for Mr Chaudhary to present a fresh complaint, when he was faced with a jurisdictional point in the Southampton proceedings which, if successful, would dispose of the whole cause of action. The presentation of the Manchester complaint was a second bite at the cherry. It was precisely the type of conduct which the principle in Henderson v Henderson (1843) 3 Hare 313, as considered by the House of Lords in Johnson v Gore-Wood [2001] 2 WLR 72 and by this court in Divine-Bortey v. Brent London BC [1998] IRLR 525, is designed to prohibit, with its inevitable risk to the applicants of duplication of costs, time and effort. All the matters raised in the Manchester proceedings could have been resolved at the same time as the preliminary time limit point in the Southampton proceedings.

80. It was submitted that, as well as falling into errors on detailed points of law, the tribunal and the appeal tribunal had fatally failed to take into account the public interest in the finality of litigation, the need to avoid a multiplicity of litigation and the principle that a party should not be vexed twice in the same matter. If they had taken those matters into account, they would have concluded that Mr Chaudhary's conduct in presenting the Manchester complaint was an abuse of process: there was no good reason for his decision to present a second complaint, instead of applying to amend the first complaint in the Southampton tribunal, which he could have done, even though the letter of 15 December post-dated the Southampton proceedings; the Manchester complaint was intimately connected with the events, which were the subject of the Southampton complaint, rather than with the other Manchester proceedings against the STA and others; the preliminary issue as to whether Dr Platt made a new decision in his letter of 15 December 1998 could have been determined at the same time as the preliminary time point in Southampton, where a similar point arose on Professor Temple's letter of 20 November 1997 and was awaiting the decision of the tribunal; abuse of process did not require any element of blame or dishonesty; and the issue of the Manchester complaint posed the clearest possible risk of prejudice to the applicants in terms of duplication of evidence, cost, waste of time and inconsistent findings and decisions arising from a multiplicity of proceedings.

81. As for the relevant principles of law I agree with the appeal tribunal that the relevant point of time at which to consider whether proceedings are an abuse of process in this case is the date when they were instituted (23 December 1998); that the principle in Henderson v Henderson is not limited to cases in which there has been a full hearing on the merits; and that it was open to the Southampton tribunal, if an application to amend had been made, to permit amendment of the complaint to raise allegation post-dating the original complaint."

82. As for the application of the principles, I conclude that, in all the circumstances of this case, the chairman of the employment tribunal was entitled to conclude that Mr Chaudhary's conduct in presenting the Manchester complaint was not an abuse of process. In reaching that conclusion I must not be taken as necessarily agreeing with all the legal and factual reasons given by the employment tribunal and by the appeal tribunal for reaching their respective decisions. The important point is that, as pointed out by Lord Bingham in Johnson v. Gore-Wood at p. 90A-F, it is not appropriate to adopt

'…too dogmatic an approach to what should in my opinion be a broad, merits based judgment which takes account of the public and private interests involved and also takes account of the facts of the case, focusing attention on the crucial question whether, in all the circumstances, a party is misusing or abusing the process of the court by seeking to raise before it the issue which could have been raised before. As one cannot comprehensively list all possible forms of abuse, so one cannot formulate any hard and fast rule to determine whether, on given facts, abuse is to be found or not.'

8. Miss Smith, who has appeared for the Respondent, has pointed out that the Act has been in force for over 30 years and that there was a paucity of authority on the issue which suggests the normal course will be to present a further application and to consolidate the new allegations with those contained within the original Originating Application. It may well be that faced with this type of problem, Tribunals take this pro active course of suggesting to the party that a new Originating Application is obtained and an application made to consolidate the two actions.
9. Quite simply, we have come to the view that the Employment Tribunal pulled up the drawbridge on the moat too quickly and left themselves stranded, viewing this matter in isolation, without considering the broader issues of whether it was just and equitable to allow the matter to proceed under the statutory formula set out in s68(6) of the Act. Their approach does smack of "too dogmatic an approach stigmatised by Lord Bingham in Johnson v Gore-Wood.
10. With great enthusiasm, Miss Hanif has suggested that we should embark upon that, ourselves. Our answer to that is - no. This is fact sensitive and the Respondent to this appeal in this action has every right to call evidence on the issue. There are real issues that arise on this and we do not feel that we should arrogate to ourselves the responsibility to deal with that matter. We simply do not have the information before us.
11. The essence of our criticism is that the Tribunal did not consider the application to amend and the application of the time limits on its merits but reached a precipitate decision on a narrow basis without considering the broader picture. We do not wish to sound a critical note since the Employment Tribunal did not have the benefit of the argument we have had.
12. We consider the case should be remitted to the same Tribunal. We refuse the Appellant's claim for costs: we give leave to appeal to the Respondents. Miss Smith has pointed out that the giving of leave does not mean that an appeal is inevitable but, quite properly, wants to safeguard her client's position. We see no basis for ordering this matter to be heard before another Tribunal and we see no basis for saying that it will be appropriate to order the Respondents to pay the costs of this appeal. We regret the intemperate terms of the Appellant's correspondence to the Tribunal.