United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	DR R BENEVISTE (The Appellant in person)
For the Respondent	MR DECLAN O'DEMPSEY (Of Counsel) Instructed by: Charles Russell LLP 8-10 New Fetter Lane London EC4A 1RS

SUMMARY

The Tribunal ought to have struck out the underlined words in paragraph 47 of the Amended Response, for which no permission to amend had been granted. In all other respects the Tribunal's decision was correct.
 


HIS HONOUR JUDGE RICHARDSON

1. This is an appeal by Dr R Beneviste against certain aspects of an order dated 12^th May 2005 made by the Employment Tribunal sitting in London by Chairman alone on a pre-hearing review. I have already dealt with, and dismissed, one ground of appeal at a preliminary hearing. In respect of other grounds of appeal I directed a full hearing.
2. The judgment which I gave at the preliminary hearing sets out the background to this appeal. So that this judgment can be read without undue difficulty, I will repeat below some of the essential background. For the fuller picture as regards County Court proceedings brought by Dr Beneviste, and their relationship to allegations of breach of contract brought in these proceedings, it is necessary to look at the earlier judgment.
3. The following issues remain to be addressed.

(a) The decision of the Tribunal to refuse permission to Dr Beneviste to amend her claim by seeking to rely on a further 26 acts as "protected acts" for the purpose of her victimisation claim.

(b) The decision of the Tribunal to refuse permission to Dr Beneviste to amend her claim to add claims under sections 92, 93, 13, 45A, 101A and 101(d) of the Employment Rights Act 1996 and under articles 13 and 14 of the Working Time Regulations.

(c) The decision of the Tribunal refusing to strike out paragraph 47 of the amended Response (which pleaded "some other substantial reason" for the dismissal as an alternative to the University's main line of response).

(d) The question of Dr Beneviste's application to strike out paragraphs 52 and 53 of the amended Response, and of her application to be awarded preparation time for that hearing.

The background facts

4. Dr Beneviste was employed by Kingston University as a Senior Lecturer in the School of Mathematics from 14 February 1994. As time went on in her employment she became concerned about her treatment in various respects including her relationship with two professors in the department. It is her case that during 1999 she put in grievances which were not addressed. It is common ground that she raised a formal grievance in July 2001 which went through all the available stages including an appeal to the Board of Governors in June 2002.
5. In April 2003 Dr Beneviste presented a claim to the Employment Tribunal on the grounds of sex discrimination, race discrimination and victimisation. It was part of her grounds of complaint that she had been "persistently subjected to a campaign of bullying, harassment and victimisation, contrary to the Sex Discrimination Act 1975 and/or the Race Relations Act 1976". The University denied the allegations, saying in particular that her originating application in 2003 was the first time she had ever raised allegations of sex or race discrimination, despite numerous opportunities presented to her over nine years of service and lengthy grievance procedures.
6. Dr Beneviste also commenced proceedings in the Epsom County Court alleging that the University was in breach of contract as regards her annual leave and pattern of work and in breach of the implied term of trust and confidence which existed between the parties over an extended period.
7. Neither set of proceedings came to a hearing on the merits. The Tribunal proceedings were withdrawn by Dr Beneviste. In the letter of withdrawal the reason given was that Dr Beneviste believed the strength of her claims against the University in the County Court was such that they stood a greater chance of success than her complaints of sex and race discrimination. In a subsequent decision on the University's application for costs, which the Tribunal refused, the Tribunal found her reason, or part of it to be that she lacked funds.
8. The County Court proceedings were struck out on 10 March 2004. I have dealt more fully in my earlier judgment with the circumstances in which this occurred.
9. Dr Beneviste remained an employee of the University. But a dispute was brewing over the amount of time she spent working at home. In October 2002 the University had introduced a new policy concerning arrangements for working away from the University, annual leave and sickness absence. In February 2004 the University commenced formal disciplinary procedures against her. The University's case was that she failed to comply with a reasonable management request concerning her working arrangements. In the course of the disciplinary procedures she was issued with a written warning and a final written warning. On 13 August 2004 she was dismissed. The reason for dismissal was said to be refusal to comply with a reasonable management instruction.
10. Dr Beneviste presented her current claim to the Tribunal on 17 September 2004. As originally pleaded it asserted the following.

"My claims against my employers relates to Unfair Dismissal, Breaches of Contract (express and implied terms), Victimisation (section 4 of SDA 1975, section 2 RRA 1976), Unfair and Unreasonable Treatment including but not limited to Breaches of the Employer's Procedures and Employment Laws"

11. It is plain from her Originating Application, which contains details running to three pages, that part of her case is that the dismissal in 2004 was the culmination of a long series of events, certainly dating back to 1999, and was not bona fide for any reason relating to her conduct.
12. The Tribunal held a case management discussion on 17 December 2004. Directions were given. Further particulars were ordered in certain respects. The issues were clarified in certain respects and each party was sent away with matters to consider. There was then a pre-hearing review on 4 May 2005. The Order now appealed, dated 12 May 2005, was made on the pre-hearing review

Protected acts

13. Dr Beneviste's Originating Application had alleged victimisation pursuant to section 4 of the Sex Discrimination Act 1975 and section 2 of the Race Relations Act 1976. These provisions are in similar terms. It suffices to set out section 4(1) of the 1975 Act.

"4. Discrimination by way of victimisation

(1) A person ("the discriminator") discriminates against another person ("the person victimised") in any circumstances relevant for the purposes of any provision of this Act if he treats the person victimised less favourably than in those circumstances he treats or would treat other persons, and does so by reason that the person victimised has –

(a) brought proceedings against the discriminator or any other person under this Act or the Equal Pay Act 1970, or

(b) given evidence or information in connection with proceedings brought by any person against the discriminator or any other person under this Act or the Equal Pay Act 1970, or

(c) otherwise done anything under or by reference to this Act or the Equal Pay Act 1970 in relation to the discriminator or any other person, or

(d) alleged that the discriminator or any other person has committed an act which (whether or not the allegation so states) would amount to a contravention of this Act or give rise to a claim under the Equal Pay Act 1970 –

or by reason that the discriminator knows the person victimised intends to do any of those things, or suspects the person victimised has done, or intends to do, any of them. "

14. As will be apparent from this definition, the concept of victimisation fulfils a particular function within discrimination law. In ordinary language, one person victimises another if he intentionally treats the other in an unfair way. In discrimination law, however, a person victimises another only if he treats him less favourably than he would treat others in the same circumstances by reason that he knows or suspects that the other person has done or intends to do certain specified acts. Although the phrase "protected acts" does not appear in section 4, it is commonly used to describe compendiously the acts set out in section 4(1), and indicates the purpose of victimisation provisions in discrimination legislation. Broadly speaking, the purpose of those provisions is to protect persons who bring proceedings or exercise rights under discrimination legislation, or who give evidence or information in connection with such proceedings, or who in good faith make allegations which amount to contraventions of discrimination legislation.
15. It is good practice, and now common practice, for an employment tribunal in a discrimination claim to hold a case management discussion to define the issues with which the case will be concerned and give case management directions. The case management discussion on 17 December 2004 considered the victimisation claim by Dr Beneviste. In her subsequent order and reasons given following that hearing, the Chairman said –

"Sex and Race Victimisation

8. The protected act relied on was the Employment Tribunal application complaining of race and sex discrimination brought by the Claimant against the Respondent in 2003."

16. However, Dr Beneviste wrote promptly after receiving the case management discussion and reasons, on 11 January 2005, to say that she did not accept that the only protected act on which she relied was the Employment Tribunal application in 2003. She sought also to raise further occasions when, prior to 2003, she had raised grievances with the University. From her point of view, the 2003 Tribunal proceedings were no more than an additional protected act.
17. At the pre hearing review the Chairman said –

"I sought to clarify whether such acts were "protected acts" in the legal sense as set out in section 4 of the SDA and section 2 of the RRA. The Claimant told me that she had not, at the time of making these complaints, alleged that the treatment she received at the hands of the Respondent was on grounds of either her sex or race but that she had received advice that this did not matter. It seemed to me that, at best, there would be an issue as to whether these complaints amounted to a "protected act" within the terms of section 4(1)(d) of the SDA and 2(1)(d) of the RRA. In addition the earliest of these complaints went back to 1995 and there would be difficulties in establishing the necessary causal link between these acts and the detriments in 2003 and 2004. In my view it would be wholly disproportionate to the issues in this case for the Tribunal to have to examine some 26 complaints made as far back as 1995 in order to ascertain whether they could be a protected act and if so whether they could be the reason for less favourable treatment received in 2003 or 2004. The issues had already been the subject of an earlier case management hearing at which the protected act was identified. It was now too late to re-open those issues."

18. The Chairman's Order, against which Dr Beneviste appeals, is

"The Claimant's application to amend her claim by seeking to rely on a further 26 acts as "protected acts" for the purpose of her victimisation claim is refused"

19. Dr Beneviste submits that the Chairman erred in law in reaching this decision. Her submissions are lengthy, but may be summarised as follows.
20. Firstly, she submits that her Originating Application encompassed earlier protected acts. She says that she did not require any leave to amend, since the protected acts were and always had been an integral part of her claim. She relies on particular passages in the details she gave. In paragraph 2 (which was background to the specific allegations made she said –

"A …. So during my 1999 appraisal I criticised my management for these problems. This triggered a chain of events that can best be described as harassment and victimisation against me that made my working life intolerable. That drove me to take legal action against my employers in 2003 ….

D …..While the Discrimination claim was being dealt with in the Tribunals, the harassment at work stopped. However immediately after I withdrew the Discrimination claims the harassment was resumed and escalated to my dismissal on 13/8/84."

Later in paragraph 3C (which was where she dealt specifically with the victimisation claim) she said

"The treatment I was subjected prior to my dismissal and the dismissal itself were acts of victimisation. I also believe that in particular the fact that I had taken legal action against my employers in 2003 contributed to this adverse treatment. I believe my continuing objection to the victimisation and my statement that I would assert my rights also contributed to this treatment."

21. Secondly, she says that the Chairman was wrong to approach her decision on the basis that 26 protected acts were relied on. She says that at the end of the hearing she was prepared to limit her reliance on the 1999 and 2001 grievances. It is certainly clear that by the time of the appeal - indeed since shortly after the hearing (see her letter dated 6 May to the Tribunal) - she was prepared to narrow her application to encompass only the grievances in 1999 and 2001 as well as the 2003 Tribunal complaint.
22. Thirdly, she says the Chairman was wrong to say that it was "too late" to re-open the issue. She says this does not reflect the importance of the issue to her case. She says that she acted promptly in raising the issue after the case management discussion in December.
23. Fourthly, she says the effect of limiting "protected acts" to the 2003 Tribunal proceedings may be to enable the University to escape liability if the act of victimisation (in particular her dismissal) was planned before those proceedings. She says there is evidence that this was the University's intention prior to 2003. She points to e mails between senior members of the University's staff; in 2002 they were contemplating dismissal or "further action" against her. I detected a concern, throughout her submissions to me, to ensure that the Tribunal should be able to examine the whole picture; for her case is that her dismissal was for reasons which were "engineered" and that it is in reality for reasons which go back much further than the University is prepared to accept.
24. Fifthly, she says that the Chairman was wrong to take into account that at the time of the earlier alleged protected acts she had never complained that her treatment was on the grounds of either sex or race. This, she submits, does not matter. She refers to and relies on section 4(1)(d) of the 1975 Act. She submits, further, that whether the earlier acts were protected acts was a matter of fact for a Tribunal to determine, and she should not be barred from raising such matters before the Tribunal.
25. Sixthly, she relies on the fact that, when she withdrew the 2003 Tribunal proceedings, the Tribunal rejected an application for costs by the University and found that those proceedings were not misconceived or in bad faith.
26. On behalf of the University Mr O Dempsey submits that the Chairman reached the correct decision for the correct reasons, and that no error of law can be discerned in the Chairman's reasoning. He submits that the only protected act identified in the originating application was the 2003 Tribunal application. References in general terms to harassment and victimisation did not suffice. He submits that before the Chairman Dr Beneviste's application was to rely on 26 protected acts; this is clear, he says, by reason of the document headed Additional Information which she had supplied, including in particular the list at Appendix A. He submits that the Chairman was entitled to conclude that, the other protected acts not having been set out in the Originating Application or clarified at the case management discussion, it was too late to introduce them. He submits that the Chairman was correct to take into account that the alleged protected acts did not in any way refer to or rely on sex or race discrimination.
27. There are essentially two questions for me to consider. The first question is whether the Chairman erred in law in concluding that Dr Beneviste required leave to amend in order to raise protected acts other than the 2003 Tribunal proceedings. If the Chairman was entitled to reach that conclusion, the second question is whether the Chairman erred in law in refusing permission to amend.
28. I have no hesitation is concluding that the Chairman was correct to proceed on the basis that leave to amend was required. In Dr Beneviste's Originating Application she specifically relied on the 2003 Tribunal complaint as a protected act. Such a complaint falls fairly and squarely within section 4(1)(a) of the 1975 Act and section 2(1)(a) of the 1976 Act. She referred to it as a contributory factor to the "adverse treatment" she received. However, on a fair reading of her Originating Application I do not think she complained of any earlier matters as being protected acts. In my view the Chairman at the case management discussion in December 2004 was plainly right to define the protected act as being the 2003 proceedings.
29. Section 4(1)(d) of the 1975 Act and section 2(1)(d) of the 1976 Act protect an allegation that an act has been committed which would amount to a contravention of the legislation. There is no need to for the allegation to refer to the legislation, or to allege a contravention, but the gravamen of the allegation must be such that, if the allegation were proved, the alleged act would be a contravention of the legislation. If a woman says to her employer, "I am aggrieved with you for holding back my research and career development" her statement is not protected. If a woman says to her employer, "I am aggrieved with you for holding back my research and career development because I am a woman" or "because you are favouring the men in the department over the women", her statement would be protected even if there was no reference to the 1975 Act or to a contravention of it. An Originating Application does not identify a protected act in the true legal sense merely by making a reference to a criticism, grievance or complaint without suggesting that the criticism, grievance or complaint was in some sense an allegation of discrimination or otherwise a contravention of the legislation.
30. In my judgment Dr Beneviste's Originating Application did not plead any protected act within the meaning of section 4(1)(d) of the 1975 Act or section 2(1)(d) of the 1976 Act. In a sense this is not surprising, for Dr Beneviste (as she told the Chairman and again made clear in the course of the appeal) never alleged at any stage prior to the 2003 Tribunal proceedings that she had been treated less favourably on grounds of race or sex. (To this fundamental point I shall return in a moment). Although Dr Beneviste referred to grievances, criticisms of management and complaints of harassment and victimisation in the broad sense, nowhere did she identify any protected act within the meaning of the legislation.
31. Did the Chairman err in law in refusing permission to amend? It must be borne in mind that an appeal lies to the Employment Appeal Tribunal only upon a question of law. A Chairman taking a discretionary decision errs in law only if she acts upon wrong legal principles, takes into account the irrelevant, leaves out of account the essential, or reaches a conclusion outside the ambit within which reasonable disagreement is possible.
32. It is clear that the Chairman took into account that Dr Beneviste had not, at the time of making her various grievances and complaints, alleged that the treatment she received was on the grounds of either her sex or her race. In my judgment the Chairman was fully entitled to do so. As I have already said, the legislation requires an allegation of an act which would amount to a contravention of the legislation. The allegation does not have to allege a contravention, still less identify the legislative provision contravened, but what is alleged must amount to a contravention. It is not the purpose of the legislation to afford protection to employees for every allegation they make, but only for allegations which amount to contraventions of discrimination legislation. Contrary to Dr Beneviste's submission, it is highly relevant that she never complained that her earlier treatment was on grounds of sex or race. Speaking for myself, I find it very difficult to see how, if permission to amend were granted, she would succeed in pleading or establishing that her earlier complaints and grievances were protected acts. Speaking for myself, I think the Chairman would have been entitled to rely on this matter alone as sufficient to ground her decision.
33. I have no doubt, examining the papers which were before the Chairman, that it was her duty to deal with Dr Beneviste's claim in all its fullness, and that Dr Beneviste was seeking to amend to allege victimisation, and therefore protected acts, prior to the grievances in 1999 and 2001. This much is plain from her Additional Information, which alleged victimisation as far back as 1998, and by implication protected acts prior to that date. The Chairman was right to address this case. I do not think the Chairman can be criticised for failing to appreciate that Dr Beneviste was willing to limit her allegations to the grievances in 1999 and 2001; this was not clarified by Dr Beneviste until her letter dated 6^th May 2005, and is irreconcilable with the Additional Information which she had given. But, in any event, Dr Beneviste was not contending that her grievances in 1999 and 2001 had included any grievance that she was being treated less favourably on grounds of race or sex. For the reasons I have given in the last paragraph, the Chairman would in any event have been plainly and unarguably right to refuse permission to amend if it had been limited to the 1999 and 2001 grievances.
34. I can deal more briefly with Dr Beneviste's other submissions. Contrary to Dr Beneviste's submission, the Chairman was entitled to say that it was "too late" to grant the amendment. The Chairman was dealing with a pre hearing review. Dr Beneviste should have established what protected acts were relied on in her Originating Application, or at latest at the case management discussion. If Dr Beneviste had a strong case that there were earlier protected acts, the Chairman might have exercised her discretion differently. But, as the Chairman had already noted, Dr Beneviste was not saying any of the earlier grievances complained of treatment on grounds of race or sex. Her case was "at best" weak, and the Chairman was entitled to say it was too late to raise it. I also reject Dr Beneviste's submission in reliance on the earlier Tribunal's ruling as to costs. In those earlier proceedings there had been a reference in general terms to victimisation, but no protected act had been defined in the Originating Application. The earlier Tribunal's ruling as to costs was of no significance, except as part of the background, to the question the Chairman had to decide in this case.
35. Finally I turn to Dr Beneviste's fourth submission. The question for the Tribunal as regards victimisation will be whether the University treated her less favourably by reason of the fact that she brought the 2003 proceedings. It does not follow that what took place before 2003 will be irrelevant to the case the Tribunal has to hear. Dr Beneviste's case includes a claim for unfair dismissal, and she will be fully entitled to argue that the dismissal was "engineered" in order to dismiss her because she had brought grievances or otherwise been a thorn in the side of the University prior to 2003. But there is no point in complicating her claims by bringing allegations of victimisation when in truth, Dr Beneviste was not complaining of sex or race discrimination prior to the 2003 proceedings.

Other Statutory Claims

36. Dr Beneviste's Originating Application had contained a "catch all" phrase in the introduction "unfair and unreasonable treatment including but not limited to breaches of the employer's procedures and employment laws". The specific details given, however, related only to breach of contract, unfair dismissal and victimisation.
37. Following the case management discussion in December 2004 the Orders made and reasons given by the Chairman concentrated on the claims for breach of contract, unfair dismissal and victimisation. There was an Order requiring Dr Beneviste by 7 February 2005 to set out additional information about all her claims, with particular reference to certain aspects of the breach of contract and victimisation claims.
38. On 4 February 2005 Dr Beneviste wrote to the Tribunal. She included two documents with her letter. The first was a one page document entitled "Appendix 1 – Laws, Rules and Procedures Breached by the Respondents". This appendix referred to a number of specific provisions under the Employment Rights Act 1996, the Working Time Regulations 1998 and the Employment Act 2002. The second was a lengthy document entitled "Additional Information Relating to the Claim" which contained an Appendix A listing specific incidents. The references to specific provisions in Appendix 1 were carried through into specific allegations in the Additional Information, Appendix A.
39. Following the pre hearing review the Chairman said –

"In the additional information sent to the Tribunal on 4th February …. the Claimant listed 60 incidents citing, in respect of many of them, that they were breaches of different sections of the ERA and stating that she "expected" that her Claim now included these matters. Informal as Employment Tribunals are, this is not the way to go about seeking to amend a Claim. The Claimant now says that these matters were always part of her Claim and she is only seeking to particularise her Claim, but this is plainly not the case. The Claimant seeks to raise new causes of action well outside relevant time limits and which do not seek to show how the Respondent has breached the right in question. For example, breach of section 45A of the ERA is pleaded without any attempt to state how it is alleged that the detriment pleaded was on grounds protected by that section. On the basis that the letter of 4th February was in reality an application to amend the Claim, I refuse that application."

40. Paragraph 3 of the Chairman's Order reflected that reasoning. It provided that –

"The Claimant's application to amend her claim to add claims under section 92 and 93, sections 13, 45A, 101A and 101(d) of the Employment Rights Act 1996 and Articles 13 and 14 of the Working Time Regulations 1998 is refused."

41. At the preliminary hearing of the appeal I directed Dr Beneviste to particularise precisely and succinctly what her case was in respect of each of the claims with which this part of the case was concerned, so that this part of the appeal could more easily be understood at the main hearing of the appeal. Dr Beneviste produced a document dated 24 November 2005 in response. This document makes it clear that most of the claims relate to an alleged refusal or proposed refusal by the University to allow the taking of annual leave.
42. Dr Beneviste makes the following submissions. Firstly, she submits that the claims in question were not new claims, because they had been encompassed in the Originating Application. It was sufficient then to give particulars of the claims when they were asked for, as she did. She relies on Burns International Security Services v Butt (1983) IRLR 438 and on passages from McMullen, Eady and Tuck, Employment Tribunal Procedure (2002) at pages 68 and 69. Secondly, she submits that the Chairman did not have regard to the detailed explanations she gave as to why the Additional Information did not introduce new claims out of time. Thirdly, she submits that all the allegations set out in the Additional Information had been the subject of grievances to the University prior to the proceedings – so the University suffered no prejudice by reason of their mention in the Additional Information. In the circumstances, she submits that the Chairman did not apply the guidance of given in Cocking v Sandhurst Stationers (1974) ICR 650. Fourthly, she submits that the Chairman erred in failing to appreciate the way her case was put under section 45A of the 1996 Act. Fifthly, she submits that she should have been allowed to plead sections 92 and 93 of the 1996 Act, notwithstanding the ruling of the Chairman already made following the case management discussion in 2003.
43. On behalf of the University Mr O'Dempsey supports the decision of the Tribunal. He submits that on a proper application of modern case law (Housing Corp v Bryant (1999) ICR 123 and Ali v Office of National Statistics (2005) IRLR 201) leave to amend was required. He further submits that the Chairman applied the correct principles in determining whether to grant leave to amend - see Selkent Bus Co v Moore (1996) ICR 836.
44. In my judgment the Chairman was correct to conclude that Dr Beneviste required leave to amend in order to make the claims set out in her Appendix 1 dated 4 February. The Chairman's task was to read the Originating Application as a whole in order to see if the claims were contained in it: see Ali v Office of National Statistics (2005) IRLR 201 at paragraph 39. If on a fair reading of the Originating Application the claim was included, the fact that particulars were required would not in itself have been fatal – see Burns International Security Services v Butt (1983) IRLR 438, where the employee completed the form to say he was complaining of unfair dismissal, but gave no details. Dr Beneviste's Originating Application, however, did not say she was relying on the provisions which she subsequently sought to introduce. It is impossible to tell, on a fair reading of the Originating Application, that she was making those claims. On the specific question of holidays, there is no more than a passing reference to "refusal of holiday" in the particulars she gave of breach of the implied term of trust and confidence. This is not an adequate foundation for the various statutory claims Dr Beneviste subsequently sought to introduce.
45. The question then arises whether permission to amend ought to have been granted. The principles applicable to applications for leave to amend are well known, and are summarised in Selkent Bus Co v Moore (1996) IRLR 661 at paragraphs 18-23. I have no doubt that the Chairman had these principles well in mind. An appeal lies to the Appeal Tribunal only if the Chairman erred in law in applying these principles. I see no error of law in her reasoning. Indeed I consider that her conclusion was plainly correct.
46. That is sufficient to dispose of this part of the appeal, but I wish to add a footnote about the specific claims which Dr Beneviste says are related to the Working Time Regulations – ie, the claims said to arise under section 45A, section 101A and section 104 of the Employment Rights Act 1996, and under regs 13 and 14 of the Working Time Regulations 1998. The Chairman had noted that the claim under section 45A was inadequately pleaded. I directed Dr Beneviste to say how her case was put. Subject to one proviso, the document she has provided dated 24 November does not disclose a case under any of these provisions. The Working Time Regulations contain an entitlement to 4 weeks' annual leave each year: regulation 13. Dr Beneviste does not allege that she was entitled to any less than 4 weeks' annual leave. The Working Time Regulations then contain, within regulation 15, a procedure whereby notices may be served by employer and employee requiring leave to be taken, or not taken, at specific times. Dr Beneviste does not allege a breach of regulation 15, which in any event applies only to the minimum 4 weeks of annual leave and allows the employer to require the employee not to take leave on particular days without having to give a reason. The provisions of section 45A, 101A and 104 apply only where there is a contravention or an alleged contravention of the Working Time Regulations, not to other, contractual, disputes between employee and employer concerning holiday pay. So, subject to the proviso which follows, there is no substance in the claims concerning the Working Time Regulations. The proviso to which I have referred above relates only to the question whether an unlawful deduction has been made from Dr Beneviste's final salary. I am not in a position to judge whether regulation 14 of the Working Time Regulations may relate to this issue, but I have no doubt that at the case management discussion the Chairman was correct to say that paragraph 3E contained a sufficient factual basis for that matter to be raised: see the Appendix to Dr Beneviste's document dated 24 November 2005. If the University made a deduction from Dr Beneviste's final salary, the University will have to justify it.

The University's amended response

47. Although the University's primary case is that Dr Beneviste was dismissed for a reason relating to her conduct, there is an alternative claim that she was dismissed for some other substantial reason. As originally pleaded in paragraph 45 of the Notice of Appearance, this provision read –

"In the alternative, the Respondent will aver that the dismissal was for some other substantial reason, namely that the Claimant by reason of her unreasonable conduct, had become impossible to manage, caused an unfair burden to fall on her colleagues and could no longer remain part of the teaching team."

48. This was a very widely drawn and general provision. Following the case management discussion in December 2004 the Chairman dealt with the Notice of Appearance in two ways. Firstly, she gave the University permission to file an amended Response so as to deal with the further clarification of Dr Beneviste's claim which she had ordered. Secondly, she directed the University "to consider dealing in the amended Response with a number of points, which included –

"In respect of the alternative reason for dismissal in the Response setting out the facts and matters relied on which support the contention about the Claimant's conduct/its consequences."

49. The Amended Response reads –

"In the alternative, the Respondent will aver that the dismissal was for some other substantial reason, namely that the Claimant by reason of her unreasonable conduct (in refusing to obey a reasonable management instruction to alter her working pattern under the terms of her employment contract), had become impossible to manage, caused an unfair burden to fall on her colleagues and could no longer remain part of the teaching team. In particular, the Respondent will provide evidence of the Claimant's refusal to follow reasonable instructions, her aggressive and unprofessional attitude towards her colleagues, her unwillingness to accept new responsibilities (which then fell to other members of the team) and her high handed attitude and generally unreasonable behaviour."

50. Dr Beneviste applied by letter dated 11 March to strike out paragraph 47 of the Amended Response. She took the point that the amendment did not meet the requirements of the Chairman at the case management discussion. She said that paragraph 47 was misconceived, unreasonable and failed to comply with the order made at the case management discussion. She said she would be unable to prepare in time to meet such a wide allegation.
51. At the pre hearing review the Chairman dismissed this application. She said of paragraph 47 of the Amended Response –

"This is simply a change of label and it will be for the Tribunal to determine the real reason for dismissal and whether that reason is a potentially fair reason for dismissal within the terms of section 98 of the ERA."

52. At the preliminary hearing I directed that the University should serve full details of each and every allegation which it is intended to make under paragraph 47 of the Amended Response. This has been done. The particulars are focussed upon the period 2003 – 2004.
53. Dr Beneviste submits that the Chairman did not fully deal with her submissions concerning paragraph 47, in particular that the amendment did not accord with the Order following the case management discussion, and that it was unreasonable to expect her to meet such a broad allegation. She submits that in this broad form and without particulars it would enable the University to put wide ranging allegations in witness statements without her having any advance warning of them. She submits that it was insufficient to describe the matter as "merely one of labelling".
54. On behalf of the University Mr O'Dempsey submits that it was entitled to raise an alternative case that there was "some other substantial reason" for the dismissal. Failure to obey a reasonable instruction was at the heart of the case, whichever reason was pleaded, and to that extent the alternative reason was no more than a change of label. He submits that, if the University failed to provide particulars, that did not form any part of the strike out application.
55. My conclusions are as follows. The University is entitled, in responding to a claim for unfair dismissal, to plead alternative reasons for the dismissal. So, although paragraph 45 of the original Notice of Appearance was drafted in unhelpfully wide terms, there was nothing inherently objectionable in it from a procedural point of view.
56. However, in my judgment the amendment made, contained in paragraph 47 of the Amended Response, was made without leave and should have been struck out. The amendment was not responsive to the further details given by Dr Beneviste. Nor was it responsive to the Chairman's invitation to give particulars of the University's case. Moreover, the amendment was objectionable from a case management point of view. It was not conducive to a fair hearing of the proceedings. It did not meet the overriding objective. The allegations were even broader and less focussed than the allegations in the original Notice of Appearance. Dr Beneviste could not possibly tell what facts were going to be relied on in support of them, or what case she would have to meet.
57. In my judgment the underlined wording in paragraph 47 must be struck out, so that the text of that paragraph will remain the same as the text of paragraph 45 in the original document. Paragraph 45 contained a wide ranging allegation of unreasonable conduct with no limit of time and no particularity. Dr Beneviste is entitled to know the case she has to meet. The Further and Better Particulars given, which limit the University's case to the years 2003 and 2004, should stand as particulars of unreasonable behaviour under paragraph 47 in its unamended form, and the University should be limited to those particulars and no more (unless, which I think unlikely, the Tribunal gives permission for any further particulars). I will so order, using the powers vested in the Appeal Tribunal by virtue of section 35 of the Employment Tribunals Act.

Remaining matters

58. The remaining issues in the Notice of Appeal relate to Dr Beneviste's application to strike out paragraphs 52 and 53 of the amended Response, and of her application to be awarded preparation time for that hearing. The Chairman's letter dated 14 November 2005, in response to the Appeal Tribunal's invitation to comment on these matters, makes it clear that no decision was taken on them. There is nothing to appeal. Dr Beneviste is entitled, if she wishes, to raise this matter again with the Tribunal. In so saying, I should not be taken to offer her any encouragement to do so, or commenting in any way on the merits of her applications.
59. It is plainly desirable that there should be a further pre hearing before Dr Beneviste's case is listed for a full hearing. I think it is highly desirable that, before the pre hearing, the parties should exchange witness statements, and I will so order. In this way the Tribunal at the further pre hearing will know what witnesses are to be called, what their evidence will be, and will be able to form a better estimate of the likely length of the final hearing, and give any further directions about its preparation.
60. The Order of the Appeal Tribunal will therefore be as follows.

(a) The appeal is allowed in part.

(b) The underlined words in paragraph 47 of the Amended Response are struck out. The Further and Better Particulars dated 28^th November 2005 shall stand as Further and Better Particulars of the Claimant's alleged unreasonable conduct. In support of paragraph 47 of the Amended Response the Respondent may only rely on the matters set out in the Further and Better Particulars dated 28^th November (unless the Tribunal gives permission for any further Particulars).

(c) Otherwise the appeal is dismissed.

(d) The parties are directed to exchange witness statements by 42 days after the seal date of this order. Paragraphs 8 to 10 of the Case Management Order dated 6^th January 2005 continue to apply to witness statements. Any application to discharge or vary this order shall be dealt with by the Tribunal (not the Appeal Tribunal).

(e) The matter is remitted to the Tribunal to continue case management and to hold a further pre hearing review.