United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR ROBERT MORETTO (of Counsel) Instructed by: Messrs Thompsons City Gate East Toll House Hill Nottingham NG1 5ES
For the Respondent	MR JONATHAN GIDNEY (of Counsel) Wolverhampton City Council Legal Services 2nd floor Civic Centre St Peters Square Wolverhampton WV1 1RG

SUMMARY

The Claimant was employed on a fixed term contract. During the terms of the contract he was dismissed for misconduct and made an application to the Employment Tribunal (ET) claiming unfair dismissal. He appealed but the appeal was heard after the date when the contract would have expired by effluxion of time. The appeal was allowed. The Claimant maintained that the effect of the successful appeal was to extend the contract beyond the date when it would have expired. The ET rejected this submission and refused permission to amend the Claim Form so as to allege that the dismissal occurred subsequent to the appeal hearing. The EAT held:

a. Where an employee on a fixed term contract is dismissed prior to the expiry of the fixed term, but on appeal overturns the dismissal, the appeal does no more than reinstate the original fixed term contract. If the appeal takes place after the expiration of the original fixed term, the successful appeal does not, without more, have the effect of extending the fixed term contract beyond the date when it would expire according to its terms.

b. An ET has jurisdiction to exercise its discretion to allow a claim that is presented prematurely to be amended so as to permit a claim to be included that could not have been included when the claim form was originally presented, because the claim had accrued at a later date. A claim may be presented pursuant to section 111(2) of the Employment Rights Act 1996 by way of amendment to an existing claim form as well as by the presentation of a claim form. The discretion to allow such an amendment must be exercised by the ET in accordance with the well-known principles set out in Selkent Bus Company v Moore [1996] IRLR 661.


 


HIS HONOUR JUDGE SEROTA QC

Introduction

1. In this case, we have decided that:

(i) where an employee on a fixed term contract is dismissed prior to the expiry of the fixed term, but on appeal overturns the dismissal, the appeal does no more than reinstate the original fixed term contract. If the appeal takes place after the expiration of the original fixed term, the successful appeal does not, without more, have the effect of extending the fixed term contract beyond the date when it would expire according to its terms;

(ii) an Employment Tribunal (ET) has jurisdiction to exercise its discretion to allow a claim that is presented prematurely to be amended so as to permit a claim to be included that could not have been included when the claim form was originally presented, because the claim had accrued at a later date. A claim may be presented pursuant to section 111(2) of the Employment Rights Act 1996 by way of amendment to an existing claim form as well as by the presentation of a claim form. The discretion to allow such an amendment must be exercised by the ET in accordance with the well-known principle set out in Selkent Bus Company v Moore [1996] IRLR 661.

2. This is an appeal by the Claimant from a decision of the ET at Birmingham (N W Beard, Chairman) sent to the parties on 7 December 2005. The ET held that it had no jurisdiction to determine the Claimant’'s claim for unfair dismissal, neither did it have jurisdiction to deal with an application to amend his claim to allow the substitution of a claim for unfair dismissal at a later date and for unlawful deduction of wages. The appeal was referred for a full hearing by Keith J on 1 March 2006.

Factual background

3. The Claimant, according to his witness statement, has some thirty years experience in local government and is known nationally for his work in partnership, start up, and development schemes and in developing successful regeneration programmes. For much of his career he has held senior positions.
4. On 1 November 2001, the Claimant began employment with the Respondent as Executive Director of a community project known as the All Saints and Blakenhall Community Development Project, sometimes referred to as “"ABCD”". The contract was for a fixed term of three years. The contract would terminate according to its terms on 31 October 2004.
5. In early 2003, complaints were made to the Respondent about the Claimant in relation to alleged bullying and sexual harassment. Consequent upon those complaints, there was a four day disciplinary hearing and ultimately, a decision to dismiss the Claimant as from 23 October 2003. We stress at this point that neither we nor the ET were in any way concerned with the merits or otherwise, of the complaints against the Claimant and we say nothing further about them.
6. 23 October 2003 was the EDT (Effective Date of Termination) as originally contended for by the Respondent. The Claimant was dismissed from his post and no wages were paid to him thereafter. The post held by the Claimant was subsequently filled.
7. The Claimant availed himself of his right of appeal, but it is a matter of significant regret that we note the appeal did not take place until some 16 months after the dismissal.
8. On 15 January 2004, that is within three months of 23 October 2003, but before the appeal had been heard, the Claimant presented an originating application in which he asserted that he had been summarily dismissed on 23 October 2003. It is perhaps convenient at this point in time to refer to section 111(1) and (2) of the Employment Rights Act 1996:

“"111 Complaints to employment tribunal

(1) A complaint may be presented to an employment tribunal against an employer by any person that he was unfairly dismissed by the employer.

(2) Subject to subsection (3), an employment tribunal shall not consider a complaint under this section unless it is presented to the tribunal—

(a) before the end of the period of three months beginning with the effective date of termination,

(b) within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period of three months.”"

9. As we have noted, the Claimant’'s contract of employment would have expired according to its terms on 31 October 2004. That date was found by the ET to be the EDT. This is the EDT now contended for by the Respondent. The contract of employment was never renewed in any formal sense.
10. On 3 February 2005, the appeal meeting concluded and the Claimant was told his appeal would be allowed and he would be reinstated. It is perhaps important at this point in time to refer to the Claimant’'s Disciplinary Capability and Grievance Procedure and Appeal Panels Notes of Guidance. We understand that these were all contractual documents.
11. Paragraph 11 of the Disciplinary Procedure makes clear that redeployment can be an alternative to dismissal. Appeals against dismissal are to the Human Resources Appeal Panel (12.4). We understand that the Human Resources Appeal Tribunal comprises elected members only.
12. It is clear from the Guidance to Appeal Panels that an Appeal Panel has two options:

“"3:2 After considering the above questions the Appeal Panel will consider the following options:

a) Disallowing the Appeal and upholding the dismissal

b) Allowing the Appeal, thereby overturning the decision and approving reinstatement.

Note: Reinstatement may be subject to conditions including a further review period.”"

13. There is nothing in the contractual documentation relating to Appeals to suggest that the Appeal Panel, comprising of elected members only as we have noted, were given any power to extend a fixed term contract. Indeed it would be surprising if they were given such power because this would not be the regular way of extending contracts of employees on fixed term contracts.
14. The ET considered that the Respondent was in breach of contract as shortly appears. The formal letter confirming the effect of the appeal differed from what the ET found the Claimant had been told on 3 February. The letter referred to is dated 9 February 2005. The letter indicates that the appeal had been upheld and a lesser sanction would be imposed of a two year warning to remain on the Claimant’'s file for two years. The Claimant was to be offered re-engagement in a suitable post and his details were to be placed on the redeployment register.
15. The Claimant remained on the redeployment register for six months. This allowed him to be informed of vacancies within the Respondent’'s workforce. The Claimant did not apply for any posts.
16. On 16 March 2005, the Respondent’'s solicitors, in a letter, made clear that the Claimant would receive no pay until he had accepted another post.
17. On 3 June 2005 there was a directions hearing. On that occasion, the Respondent for the first time raised the issue that the dismissal of the Claimant took effect at the end of the fixed term. It was permitted to amend its response to that effect. The Respondent had not originally taken the point upon which it ultimately succeeded, i.e. that the proceedings had been premature. On 17 June 2005 the amended response was lodged. The six month period on the redeployment register expired on 9 August 2005. The Claimant accordingly maintains that the EDT is 9 August 2005. In the further alternative the Claimant submits that the EDT is 10 October 2005, being the date when the Claimant was actually removed from the redeployment register.
18. On 24 October 2005 the Claimant applied to amend his claim form and assert that the EDT was after 23 October 2003. On 1 November 2005 the ET directed that there should be an issue as to the question of amendment, to be dealt with at the start of the hearing which took place on 7 November 2005. On 8 November 2005, as a precautionary step, the Claimant issued a new claim form which we have not seen asserting, so we are told, that the EDT was on 9 August 2005 or 10 October 2005. The Claimant would also have wished, if necessary, to assert by way of amendment, were the dismissal to have taken effect on 31 October 2004 that it was not reasonably practicable for the complaint to be presented within three months of that date and that the amendment had been sought within a reasonable period.
19. The Claimant issued a fresh Wages Act claim (with which we are not concerned) on 20 December 2005, having had to wait to go through internal appeal procedures.
20. The Claimant argued before us, as he had before the ET, that the decision to offer re-engagement was effective to bridge the gap between his original dismissal and the appeal hearing, so his contract of employment was automatically extended to the date of the appeal hearing at the earliest. The Respondent’'s case was that the result of the Appeal hearing was to bring the Claimant’'s contract of employment back to life, but according to its terms, which included the term, it should expire on 31 October 2004. We shall refer to these submissions in greater detail later in this judgment.

Decision of the Employment Tribunal

21. The ET directed itself by reference to the decision of the House of Lords in West Midlands Co-operative Society v Tipton [1986] 1 A11ER 513 to which we shall refer later in this judgment. The ET recognised that the authorities made clear that a successful appeal against dismissal of an employee resurrected the contract that had been brought to an end.
22. The ET rejected the contention that 23 October 2003 was the effective date of termination.

“"14. In our judgment the 23 October 2003 cannot be the effective date of termination. The appeal held in consequence of the terms of the contract terminated on 23 October 2003 arose out of a freestanding right. Following a request by the employee, an appeal must be followed through. Failure to do so on the part of the employer would amount to a breach of contract. A successful domestic appeal reinstates a person to employment under the terms of the contract of employment under which they were originally employed, albeit that the details of employment can be different if such sanction is permitted under the terms of the contract. This creates a continuous contract and effectively puts an employee in a position where there was no dismissal. As a matter of law the decision of the appeal panel to reinstate recreates the contract and the original date of termination is removed by a legal construct.”"

23. The ET then went on to consider as the effective date of determination 31 October 2004, that is, the date when the original fixed term contract would have expired. The ET then went on to say this:

“"15. The next potential date of termination is 31 October 2004. We ask ourselves what is the meaning of reinstatement under the terms of the contractual arrangements between the parties. The contractual disciplinary procedure provides for the removal or the change of a sanction. The declaration of a reinstatement must, in our judgment, amount to a removal of the sanction of dismissal. If there is a removal of the only sanction then what must be reinstated is the initial contract between the parties. The initial contract between the parties was on a fixed-term basis. Unless there is an extension of that arrangement, then by means of effluxion of time, the fixed-term contract will come to an end.”"

24. The ET went on to reject submissions made by Mr Moretto, who appeared for the Claimant before the ET, as he appeared before us, that the termination could not take place in October 2004 because the decision that created the “"bridge”" (ie. the Appeal) did not take place until February 2005. The ET characterised the submission as “"ingenious”" but one they were unable to accept. The ET went on to reject a secondary submission by Mr Moretto that the carrying out of the Appeal amounted to an extension of the fixed term by implication or alternatively that the contract was extended by implication because of the changes in terms that were proposed.
25. The ET considered that the right to appeal was a freestanding right under the original contract of employment which continued post-termination. If the employer refused to hold such an appeal it would be in breach of contract. The ET considered that such a situation did not demonstrate by implication an agreement between the parties to extend the term of a fixed term contract. The Respondent was complying with its existing contractual obligations. Further, there was no alteration of the terms of the contract on appeal, merely a reinstatement of the original contract. The ET noted that the Claimant was not paid “"a penny”" by the Respondent from the date of the original termination, nor did he attend at work from the date of the original termination. There was nothing in the behaviour of the parties that would allow the ET to conclude that the contract of employment had been extended backward in time by the decision in February by implication. The ET accordingly concluded that the effective date of determination of the revived contract was 31 October 2004, being the date of the end of the fixed term as described under section 97(1)(c) of the Employment Rights Act 1996.
26. The ET went on to consider the alternative effective dates of termination put forward by the parties. The ET rejected the suggestion that 9 February 2005 could be the effective date of termination. Although the ET had concluded that reinstatement was allowed on appeal and was then withdrawn, the ET considered whether it could say that the breach of contract had occurred on 9 February and that that would amount to a dismissal:

“"19. …However, in order to come to those conclusions there would have to be an existing contract extending from 31 October 2004. For the reason we have already outlined, there was no express extension, and no implied extension of the fixed term. We are inevitably drawn to the conclusion that because the Appeal decision on 3 February did nothing more than reinstate the original contract, which came to an end on 31 October 2004 there can be no dismissal.”"

27. The ET, for similar reasons, rejected as effective dates of termination 9 August 2005 and 10 October 2005. The ET also concluded:

“"19. …there was nothing in the behaviour of the parties which would allow us to consider that the contract had continued beyond February, given the fact that no wages were paid and the claimant did not attend work.”"

28. The ET then went on to consider whether or not to permit an amendment. The ET referred to section 111(2) of the Employment Rights Act 1996 and concluded that the complaint was premature because it was based upon an unfair dismissal occurring on 23 October 2003.

“"20. …That complaint cannot be upheld on the basis of our findings because there was no dismissal on that date. If there was no dismissal on that date then the complaint of unfair dismissal ceases and we ask, rhetorically, how can someone amend a non-existing claim.”"

29. The ET were conscious that in practical terms this was a matter that might need to be considered by another Tribunal following the presentation of a further claim, but the ET considered they had no jurisdiction to entertain an application to amend in the circumstances before it:

“"20. …There having been no complaint presented after the date of termination; there being no existing claim to amend because any amendment would create an entirely new cause of action; we have to the conclusion that we have no jurisdiction to deal with this matter further.”"

30. Accordingly, the ET dismissed the claim based upon the complaint of unfair dismissal having occurred on 23 October 2003.
31. The ET was at pains to point out it “"made no other findings of fact or law about the merits or any other elements of the case”". The ET had restricted itself to making “"such findings of fact as would enable it to determine the effective date of termination.”"

The Claimant’'s submissions

Effective date of termination

32. Mr Moretto’'s primary submission was that the effect of the appeal was to provide a bridge between the date that the contract had originally been terminated in October 2003 to the date of the appeal. Accordingly, he submitted, on the authority of the decision in West Midlands Co-operative Society the ET should have held there was no effective date of termination on 31 October 2004 as the successful Appeal had in fact led to his reinstatement.
33. He relied upon section 97(1)(c) which provides, of course, that the effective date of determination in respect of an employee employed under a limited term contract (such as in the present case) without being renewed:

“"means the date on which the termination takes effect.”"

34. As Mr Moretto puts the matter in his Notice of Appeal paragraph 7:2:2:

“"7.2.2 By 31 October 2004 the previous fixed-term had already terminated (on 23 October 2003). Nothing in fact happened then on 31 October 2004. It was three months later (on 9 February 2005) that the communication of reinstatement was made. As a matter of law that communication revived the contract, but could not, as a matter of law or logic, have the effect of terminating the employment contract three months prior to the communication.”"

35. Mr Moretto went on to submit that the contract of employment had impliedly been extended. This is a submission that it is convenient to deal with now as we can deal with it relatively shortly. Mr Moretto relied upon the continuance of the appeal process; we agree with the ET that this is entirely neutral. He relied also upon the fact that the Appeal had overturned the dismissal; this as it seems to us, is also wholly neutral. He refers to the promise that there would be reinstatement. Reinstatement could just as much be of the original contractual term, which would, as we understand it has, entitle the Claimant to recover substantial arrears of salary.
36. Mr Moretto also relied upon the fact that the Claimant had been placed on a redeployment register until 10 October 2005. He submitted that the Respondent’'s redeployment policy limited redeployment to those “"currently employed until the end of their statutory notice period.”" We did not consider this to be a particularly powerful point, taken against the fact that the Claimant’'s previous post had been filled and the Respondent was doing no more than offering him the prospect of an alternative post. He also submitted that the two year disciplinary warning ran from 9 February 2005 which suggested that his contract had been extended. However, the disciplinary warning would have run with any new post to which he was appointed.
37. Mr Moretto also referred us to the decision of the EAT London Probation Board v Kirkpatrick [2005] IRLR 443, in support of the proposition that if the Claimant is told he will be reinstated, as a matter of contract, he is. That was the case in which the EAT had held that an Appeal board had “"all the powers”" of the employer. The passage upon which Mr Moretto relied (paragraph 16) does not seem to us to meet the point that he raises.
38. We ask the question forensically, where does the Appeal Committee get authority to extend the Claimant’'s contract? As we have noted, its powers are limited to upholding the dismissal or reinstatement. It is accordingly necessary to give some meaning to the power to reinstate. In our opinion, it meant no more than that the Appeal Committee had power to reinstate the contract according to its terms as submitted by the Respondent in its response and subsequent submissions.
39. Mr Moretto went on to submit that the ET should have found that the effective date of determination was either 9 August 2005 when the six month period on the redeployment register came to an end, or 10 October 2005 when the Claimant was informed he was no longer on the redeployment register.

Amendment

40. The Claimant’'s submission was that presentation of a complaint within the meaning of sections 23(2) and 111(2) of the Employment Rights Act include presentation by amendment. He submitted, as indeed is the case, that it frequently happens that a new claim is added by amendment, for example, a claim of unfair dismissal has added to it a claim for discrimination or unlawful deduction from wages or wrongful dismissal. These spring from the same factual background as the original complaint, without the need for the presentation of a new claim form. The decision in Selkent recognises that new causes of action can be added by amendment.
41. He submitted that the ET’'s decision was either perverse or wrong in law. The Employment Tribunal say that as at 24 October 2005 when the application was made, that there was “"no existing claim to amend”". As at that point in time, the ET had yet to determine the effective date of determination. Mr Moretto drew attention to rule 10(2)(q) in the Rules of Procedure that recognises the power of an ET Chairman to permit amendments and to the overriding objective set out in rule 3 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004. He pointed that out that Mummery L J had recognised in Chaudhary v Royal College of Surgeons [2003] ICR 1512 (a case involving discrimination on the grounds of race):

“"That it was open to the Southampton Tribunal, if an application to amend had been made, to permit amendment of the complaint to raise allegations post-dating the original complaint.”"

42. Mr Moretto went on to submit that once the ET had concluded that the effective date of determination was 31 October 2004, it should have considered in accordance with the decision in Selkent that it was appropriate to allow the amendment, having regard to all the circumstances including time limits. Mr Moretto, in paragraph 49 of his skeleton submission set out detailed grounds as to why it might be appropriate to allow an amendment if “"presented”" more than three months after the effective date of determination found by the ET. We do not need to set out the submissions, as that is not a point we need to determine. These matters will have to be considered in due course by the ET.

The Respondent’'s submissions

Effect of the successful appeal

43. Mr Gidney, who appeared on behalf of the Respondent, submitted that the decision of the ET in this regard was correct. The successful appeal did no more than put the Claimant in the position he would have been in but for the overturned dismissal; i.e. subject to a fixed term contract which was liable to expire by effluxion of time. When his reinstatement was communicated to him on 9 February, this had the effect of overturning the decision to dismiss that had initially been taken and restored the Claimant to his original fixed term contract. The reinstatement, however, did not operate and could not operate to extend the term of the fixed term contract beyond 31 October 2004. All the authorities, Mr Gidney submitted, to which we shall come later, are cases where the contracts of employment that were extended by the successful appeal involved continuing contracts. He derived support for this submission from the judgment of Mummery L J in Roberts v West Coast Trains [2004] IRLR 788, paragraph 22, to which we shall refer later.
44. In relation to the Claimant’'s case that there was an implied extension of his contract, we have already set out our views but note that Mr Gidney’'s submissions were that there could be no implied extension of the contract because the Claimant’'s post had been filled and the two year disciplinary warning would have applied to any new job to which he had appointed. The fact that he had been placed on the redeployment register was still consistent with his former employment having terminated.

Amendment

45. Again, Mr Gidney supported the decision of the ET. He drew our attention to Roberts at paragraphs 23 to 27 and McKay v London Probation Board UKEAT/0679/04. Mr Gidney’'s submission was that the authorities made clear that unless the originating application or claim form was issued prior to dismissal, the ET had no jurisdiction to entertain the application.
46. He reminded us that it had been agreed that the effective date of dismissal would be determined by the ET before it considered the application to amend. After the determination by the ET that the contract had terminated at what would have been the expiration of its fixed term, there was no longer a valid claim form to amend. Further, applying the guidance given in the Selkent case, permission to amend should not have been given. In the exercise of its discretion, the ET would have borne in mind that the Claimant had at all times the benefit of legal advice.
47. We asked Mr Gidney what would have happened if a new claim form had been presented in June 2005 when the Respondent first raised the issue of prematurity. He candidly, and in our opinion very properly conceded that it was likely that had a further claim form been issued when his clients first took the point that the existing claim form was premature, that they would have agreed the consolidation of the new proceedings with these proceedings. However, as the claim form was not issued in June 2005, his clients would now oppose any extension of time pursuant to section 111(2)(b) of the Act as it was reasonably practicable to issue proceedings after the point had been taken in June 2005.

The authorities

Effect of reinstatement

48. The effective date of determination of a contract of employment is dealt with in section 97 of the Employment Rights Act 1996. Section 97(1)(c) provides that the effective date of termination:

“"(c) in relation to an employee who is employed under a limited-term contract which terminates by virtue of the limiting event without being renewed under the same contract, means the date on which the termination takes effect.”"

49. In Savage v J Sainsbury Ltd [1980] IRLR 109 Brightman LJ approved the reasoning of the EAT:

“"19 The matter came before the Employment Appeal Tribunal with commendable expedition on 4.10.78. Judgment was reserved until 6 October when the appeal was allowed. It is sufficient for my purpose to read one paragraph from the judgment which summarises the reasoning of the Tribunal. I read from page 8 of the transcript, between lines D and E. ‘'In our view, when a Notice of immediate dismissal is given, the dismissal takes immediate effect. The provisions of this contract as to the appeal procedure continue to apply. If an appeal is entered, then the dismissed employee is to be treated as being “"suspended”" without pay during the termination of his appeal, in the sense that if the appeal is successful then he is reinstated and he will receive full back-pay for the period of the suspension. If the appeal is not successful and it is decided that the original decision of instant dismissal was right and is affirmed, then the dismissal takes effect on the original date. In our view, that is the date on which the termination takes effect for the purposes of the Act.’'”"

50. This passage was approved by the House of Lords in West Midlands Co-operative Society. Lord Bridge went on to say, at page 519:

“"Adopting the analysis which found favour in J Sainsbury Ltd v Savage, [1981] ICR I, if the domestic appeal succeeds the employee is reinstated with retrospective effect; if it fails the summary dismissal takes effect from the original date. Thus, in so far as the original dismissal and the decision on the domestic appeal are governed by the same consideration, sc the real reason for dismissal, there is no reason to treat the effective date of termination as a watershed which separates the one process from the other.”"

51. In London Probation Board, McMullen HHJ QC had this to say at paragraph 16 in a passage relied upon by Mr Moretto:

“"16 From this it is clear that the appeal board had all the powers of the respondent. In our judgment, prior to any disciplinary incident occurring, the claimant had an enforceable contractual right, if subjected to disciplinary action, to appeal to the appeal board which would treat his case dispassionately, be guided by the ACAS officer as to best practice, and if the finding was that there were not grounds for his dismissal he should go back to work in every respect as if the original decision had not been made. That is what occurred in this case. It was a breach of contract for the respondent to dismiss him on 10 June 2003 for, as the appeal board made clear, there were no grounds for doing so. The respondent made up for that breach by its decision to uphold his appeal and reinstate him. We accept Mr Pearman’'s analysis that the claimant thereby waived the breach, or in any event accepted the reinstatement as an appropriate remedy for it. Contrary to the submission of Mr Brown, we hold that there was a contractual provision which entitled the claimant to an independent hearing and implementation of any decision made in his favour. Conversely, it would not be a breach of contract for a decision to dismiss to be upheld following a properly constituted appeal board. It follows that a decision to reinstate the claimant was binding as a matter of contract either by operation of the above procedure, or as a matter of direct promise made by the appeal board itself. This is put beyond doubt by the acceptance in Mr Brown’'s written skeleton argument of this:

‘'The correct analysis is that the appellant is in breach of contract. That cannot be disputed.’'

That will also be of assistance to the claimant if he wishes to pursue a claim in the civil courts. The breach of contract is in dismissing the claimant on 5 September 2003 following its promise to reinstate him.”"

52. We would, in relation to this issue, also refer the decision of the Court of Appeal in Roberts. Mummery L J at paragraph 22:

“"22 It was held by the Appeal Tribunal, correctly in my view, that the decision on the internal appeal was not a matter of creating a new contract for a new position: it was a question of giving effect to a decision to apply a different sanction on appeal than had been applied at first instance. The sanction applied on appeal was one specified in the existing contract. Within that existing contract it was possible to demote Mr Roberts without terminating his existing contract and without making an offer to enter into another contract re-engaging him into a different position.”"

Amendment

53. Section 111 of the Employment Rights Act 1996 provides as follows:

“"111 Complaints to [employment tribunal]

(1) A complaint may be presented to an [employment tribunal] against an employer by any person that he was unfairly dismissed by the employer.

(2) Subject to subsection (3), an [employment tribunal] shall not consider a complaint under this section unless it is presented to the tribunal—

(a) before the end of the period of three months beginning with the effective date of termination,

(b) within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period of three months.”"

54. It is to be noted that the statute requires the complaints to be “"presented”". There is no definition of “"present”" or “"presentment”".
55. We have already referred to the dicta in Chaudhary and need not repeat them. The principles upon which an ET should act in considering whether or not to grant an amendment were set out by Mummery L J in the EAT in Selkent and are well-known and are not controversial. Mummery L J said:

“"18

Procedure and practice for amendments

The rival submissions of the parties state the position at opposite extremes. Before we state our conclusions on this appeal, it may be helpful to summarise our understanding of the procedure and practice governing amendments in the industrial tribunal.

The discretion of a tribunal to regulate its procedure includes a discretion to grant leave for the amendment of the originating application and/or notice of appearance: reg. 13. See Cocking v Sandhurst Ltd [1974] ICR 650 at 656G-657D. That discretion is usually exercised on application to a chairman alone prior to the substantive hearing by the tribunal.

19

There is no express obligation in the Industrial Tribunal Rules of Procedure requiring a tribunal (or the chairman of a tribunal) to seek or consider written or oral representations from each side before deciding whether to grant or refuse an application for leave to amend. It is, however, common ground that the discretion to grant leave is a judicial discretion to be exercised in a judicial manner, ie in a manner which satisfies the requirements of relevance, reason, justice and fairness inherent in all judicial discretions.

20

Consistently with those principles, a chairman or a tribunal may exercise the discretion on an application for leave to amend in a number of ways:

It may be a proper exercise of discretion to refuse an application for leave to amend without seeking or considering representations from the other side. For example, it may be obvious on the face of the application and/or in the circumstances in which it is made that it is hopeless and should be refused. If the tribunal forms that view that is the end of the matter, subject to any appeal. On an appeal from such a refusal, the appellant would have a heavy burden to discharge. He would have to convince the appeal tribunal that the industrial tribunal had erred in legal principle in the exercise of the discretion, or had failed to take into account relevant considerations or had taken irrelevant factors into account, or that no reasonable tribunal, properly directing itself, could have refused the amendment. See Adams v West Sussex County Council [1990] IRLR 215.

If, however, the amendment sought is arguable and is one of substance which the tribunal considers could reasonably be opposed by the other side, the tribunal may then ask the other party whether they consent to the amendment or whether they oppose it and, if they oppose it, to state the grounds of opposition. In those cases the tribunal would make a decision on the question of amendment after hearing both sides. The party disappointed with the result might then appeal to this tribunal on one or more of the limited grounds mentioned in (a) above.

In other cases an industrial tribunal may reasonably take the view that the proposed amendment is not sufficiently substantial or controversial to justify seeking representations from the other side and may order the amendment ex parte without doing so. If that course is adopted and the other side then objects, the industrial tribunal should consider those objections and decide whether to affirm, rescind or vary the order which has been made. The disappointed party may then appeal to this tribunal on one or more of the limited grounds mentioned in (b) above.

21

Whenever the discretion to grant an amendment is invoked, the tribunal should take into account all the circumstances and should balance the injustice and hardship of allowing the amendment against the injustice and hardship of refusing it.

22

What are the relevant circumstances? It is impossible and undesirable to attempt to list them exhaustively, but the following are certainly relevant:

The nature of the amendment

Applications to amend are of many different kinds, ranging, on the one hand, from the correction of clerical and typing errors, the additions of factual details to existing allegations and the addition or substitution of other labels for facts already pleaded to, on the other hand, the making of entirely new factual allegations which change the basis of the existing claim. The tribunal have to decide whether the amendment sought is one of the minor matters or is a substantial alteration pleading a new cause of action.

23

The applicability of time limits

If a new complaint or cause of action is proposed to be added by away of amendment, it is essential for the tribunal to consider whether that complaint is out of time and, if so, whether the time limit should be extended under the applicable statutory provisions, eg, in the case of unfair dismissal, s.67 of the 1978 Act.

24

The timing and manner of the application

An application should not be refused solely because there has been a delay in making it. There are no time limits laid down in the Rules for the making of amendments. The amendments may be made at any time – before, at, even after the hearing of the case. Delay in making the application is, however, a discretionary factor. It is relevant to consider why the application was not made earlier and why it is now being made: for example, the discovery of new facts or new information appearing from documents disclosed on discovery. Whenever taking any factors into account, the paramount considerations are the relative injustice and hardship involved in refusing or granting an amendment. Questions of delay, as a result of adjournments, and additional costs, particularly if they are unlikely to be recovered by the successful party, are relevant in reaching a decision.”"

Conclusions

Extension of contract

56. If the submissions made by the Claimant are correct, a Claimant subject to a fixed term contract who is dismissed but succeeds on appeal, would be in a better position than a Claimant who is suspended or receives some other lesser penalty. In the case of the former, the fixed term will expire by effluxion of time on its due date (assuming any appeal is heard after the passing of the date) while the employee who is dismissed will have his contract automatically extended as a result of a successful appeal and imposition of a lesser sanction. At the least this seems anomalous.
57. Further, if the Claimant is right, an employee on a fixed term contract who is dismissed during the currency of the contract but whose appeal is heard at a later date would be in a better position than the employee whose appeal is heard earlier. If the appeal is heard during the continuance of the contract, the contract of the successful Appellant will terminate on its due date, but if the appeal is heard after the date that the initial contract would have expired, the contract will (should the Claimant’'s submissions be correct) be deemed to continue at least until the appeal has been determined. The contract will be extended, perhaps significantly beyond its fixed term. This result seems to us wholly arbitrary and capricious. If one, for example, takes the cases of a teacher employed on a fixed term contract for a term, or a doctor, appointed for a short-term locum contract; if they are dismissed during the course of the contract, successfully appeal and those appeals are heard many months later, if the Claimant is right - even if the contracts would not have been renewed on their due date and even if some sanction is deployed less than dismissal on appeal - the Claimant would be entitled, as a result of their successful appeal, to arrears of salary and in effect, to have contracts extended in circumstances in which such extensions would never have been granted. They may also acquire other unintended benefits, such as pension benefits, and the right under s 108 to qualify for claiming unfair dismissal.
58. All the cases to which we have referred were cases where there were continuing contracts of employment rather than fixed term contracts or contracts described as “"limited term contracts”" in se 97(1)(c) of the Employment Rights Act. The dicta to which we have referred must be understood in the context of unlimited contracts. We do not see any suggestion in those dicta that resurrection of a contract by reason of a successful appeal does more than resurrect the contract according to its terms. As Mr Singh put it during the course of submissions, reinstatement as a matter of simple language means putting the Claimant back into the position he was at the time of dismissal, not extending his contractual rights beyond that.
59. So far as the implied extension of the contract is concerned, we have already disposed of this matter and broadly agree with the Respondent’'s submissions.
60. We now turn to the suggestion that there was a contractual promise to reinstate the Claimant. We would agree with the conclusion of the ET as set out at paragraph 19. However, we would be minded to go further. The ET do not appear to have placed any reliance on the contractual provisions to which we have referred that limit the Appeal Committee’'s powers to dismissal of the appeal or reinstatement, possibly with a lesser penalty. In our opinion, the term “"reinstatement”" needs to be seen in that contractual context. We have seen nothing to suggest that the Appeal Committee was given authority to extend the contract beyond its original date of expiration, nor that the Committee considered it was so doing. In paragraph 3:6 of its response, the Respondent challenged the finding by the ET that the Appeal Committee had in fact agreed to reinstatement in the sense of returning the Claimant to his contractual employment. We consider that the Respondent’'s submissions in this regard are correct.

Amendment

61. The Respondent’'s case involves holding that an amendment can be allowed to add or substitute a cause of action that was not available when the originating application was first presented. There is nothing in the rules that expressly prevents such an amendment being allowed. It would obviously make sense, in a case such as this, to allow an amendment (if considered appropriate) rather than require the Claimant to issue a second originating application. We do not see any basis for the technical rule that used to apply at one time under the Rules of the Supreme Court that one could not permit by amendment the raising of a cause of action that had accrued after the issue of the writ.
62. Statutes that deal with discrimination on the grounds of disability, sex, race and so on are phrased differently but claims under these statutes are frequently amended so as to add different causes of action. We see no reason in principle why a cause of action that has accrued, so as to speak, after the presentation of the original claim form, should not be added by amendment if appropriate. The claim form can still serve as a vehicle for the amendment even if the original cause of action is bad. Some support for this proposition can be found in the passage that we have cited from Chaudhary.
63. We see no reason why the term “"present”" should be given any technical meaning. In our opinion, a claim can be “"presented”" as well by amendment as by the issue of a separate originating application. If this were not so, in very many cases amendments adding new causes of action would require to be initiated by the presentation of a fresh originating application rather than by amendment. In our opinion, such is neither current practice nor in accordance with common sense nor the law as we understand it.

Final conclusions

64. In the circumstances, therefore, the Claimant’'s Appeal in relation to the effective date of termination is dismissed and his Appeal in relation to jurisdiction to allow an amendment is allowed.
65. The matter will be remitted to the same ET to determine whether the amendment be allowed in accordance with the principles set out in Selkent.
66. We have of course had regard to the principles set out by Burton J in Sinclair Roche and Temperley v Heard in ordering remission to the same ET.