United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR MOHAMMED A.HAY (of Counsel) Instructed by: Messrs Thompsons Solicitors The St Nicholas Building St Nicholas Street Newcastle upon Tyne NE1 1TH
For the Respondent	MR DAMIAN BROWN (of Counsel) Instructed by: Hammonds Solicitors 2 Park Lane Leeds West Yorkshire LS3 1ES


 


SUMMARY

Practice and Procedure – Striking-out/dismissal

The Appellant applied to the Employment Tribunal with an equal pay claim. Her solicitor misspelled her name on the ET1. The Employment Tribunal struck out the claim, refusing leave to amend on the ground that rule 1(4)(a) had not been complied with in that the name on the ET1 was fictitious. Remitted to the Employment Tribunal to consider whether there were grounds on which it would not be just and equitable to allow the amendment or whether the amendment should be allowed.


 


HIS HONOUR JUDGE REID QC

1. This is an Appeal against the decision of Mr Barton sitting as a Chairman alone at Newcastle-Upon-Tyne on 1 September of last year. The decision was signed by the Chairman on 5 October and sent to the parties on 6 October. By his decision the Chairman refused an application by the Claimant, Mrs Cowings, to amend the claim presented on 23 May 2006 on the ground that the original claim did not comply with Rule 1 of the Employment Tribunal Rules & Procedure 2004 by giving the claimant's name, and that it would not be just and equitable to allow the amendment. He then struck out the claim pursuant to Rule 17(7)(b) as having no reasonable prospect of success.
2. The relevant part of the Judgment is at paragraph 17. By way of background to it, I should say that the claim was in error submitted in the name of Mrs W E Cummings rather than Mrs W E Cowings. At paragraph 13 the Chairman said,

"This is not just the misspelling of a name as the Claimant represents nor just a typographical error, it is a different name altogether and the name of someone who never existed as an employee of the respondent." Taken to its logical conclusion, the Claimant's argument would appear to be that to claim in the name of any fictional character could form the basis of a claim. I have to conclude, therefore, this is not simply an issue of judicial discretion about labelling with no prejudice to the Respondent; nor is it a question of needing a sympathetic construction to be placed on overly restrictive procedural requirements: it is quite clear that in fundamental respects Rule 1 was not complied with, and I feel I must refuse the application to amend.

3. The rule to which the Chairman was referring was Rule 1 under Regulation 16 of The Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 set-out in Schedule 1, which contains the following paragraph:

1 "(4) Subject to paragraph (5) and to rule 53 [these are not material here], the required information in relation to the claim is –

(a) each claimant s name;

(b) each claimant's address;

(c) the name of each person against whom the claim is made (""the respondent");

(d) each, respondent's address;

(e) details of the claim;

(f) whether or not the claimant is or was an employee of the respondent;

(g) whether or not the claim includes a complaint that the respondent has dismissed the claimant or has contemplated doing so;

(h) whether or not the claimant has raised the subject matter of the claim with the respondent in writing at least 28 days prior to presenting the claim to an Employment Tribunal Office;

(i) if the claimant has not done as described in (h), why he has not done so;"

4. What was said was that since the claim did not contain the required information it could not proceed. This was a reference back to Rule 1(1)

"A claim shall be brought before an employment tribunal by the claimant presenting to an Employment Tribunal Office the details of the claim in writing. Those details must include all the relevant required information (subject to paragraph 5 of this rule and rule 53 (Employment Agencies Act 1973))."

5. The chronology of events in this particular case is as follows. The Claimant started her employment as a cook in school kitchens on 1 September 1974. There came a time when the Respondent became her employer. On 29 September 2005 an equal pay grievance should have been submitted and on 30 September 2005 her employment ended. On 28 February 2006 a grievance was submitted in the name of Cummings stating that a previous claim had not been accepted. On 29 March 2006, the last day of submission of equal pay claims, the claim was faxed in the name of Cummings. On 31 March 2006 the claim was rejected. On 28 April 2006 a grievance in the name of Cummings was submitted in relation to equal pay. On 23 May 2006 a claim form was submitted in the name of Cummings. On 7 June 2006 there was a response stating that there was no employee called Cummings. On 19 June 2006 the Respondent submitted grounds of resistance asserting there was no employee by the name of Cummings. On 23 June 2006 the Appellant's solicitors, that is Mrs Cowings' solicitors, suggested that she was employed by the Respondent and that her contract and documents were being sought. On 27 June 2006 the Appellant's solicitors corrected the name to Cowings and submitted the employee number. On 6 July 2006 they made the Application to amend. On 2 August 2006 the case was listed for a pre-trial hearing and a pre-hearing review. On 1 September 2006 the Hearing took place, and that produced the result which I have already mentioned. There was a review application on 20 October 2006 which was declined on 1 November 2006.
6. The case that is put by the Appellant, dealing with the short points on which I have heard argument, essentially is that the Tribunal was wrong in law in treating this as being a claim by a non-existent claimant; that everyone knew perfectly well who the Claimant was; that it was unfortunate that the solicitor through whom the claim was submitted had misread the Claimant's writing: and that the Tribunal should have permitted an amendment.
7. The Respondent took at this stage essentially three points. Firstly, that the provisions of the Rules were mandatory, and that since the required information had not been given in relation to the Claimant's name the Tribunal were entirely right and had no jurisdiction to allow the claim to be amended. Secondly, that even if the Tribunal had jurisdiction it had acted within its powers in deciding to refuse permission to amend. And thirdly, that in any event, and this was a new point, there was no jurisdiction because the only grievance had been submitted in the wrong name i.e. in the name of Cummings rather than in the name of Cowings. There was therefore no valid grievance procedure and that was a prerequisite of proceedings being accepted by the Tribunal.
8. Dealing with the last point first, the grievance procedure simply requires an employee must set out the grievance in writing and send the statement or a copy of it to the employer. Then step 2 is the meeting; the employer must invite the employee to attend a meeting, and so on to step 3 with an appeal. There is nothing in that which says that a grievance is invalidated because it is made by someone who mistakes the employee's name. One might ask how minor a misstatement would be required to invalidate the grievance. Would it be sufficient that Smith was spelt Smythe rather than Smith; or, to take my own name, would it be sufficient that the grievance was submitted by a solicitor in the name of Read or indeed Reed or Reade rather than Reid? In my judgment, it is clear that the Claimant did submit a grievance and there is nothing in that point.
9. As to the second point, it was suggested that the required information required the Claimant's name to be inserted. There is nothing, it seems to me, which prevents a subsequent amendment to correct the required information. If required information is not given, different considerations may apply and one may be into the territory of whether the information was required and was material, but it does not seem to me when one looks at the overriding objective that it can have been the intention of legislature to prevent any amendment however slight to the required information; such obvious things as a mistyped post code or, indeed to take this particular case, a correction of the name of the Respondent to the correct company name from "Compass Group UK & Irlenad Tradung as Scholarest, 24 Parklands, Burminghan, Great Park, B45 9PZ" to Compass Services UK & Ireland Limited with the appropriate contact address being given (which incidentally was not the Birmingham address at all).
10. I take the view that there is clearly a jurisdiction to amend. In doing so it seems to me that I am following along the same general line as Judge Prophet in Grimmer v Klm Cityhopper UK (2005) UKEAT/0070/05; the then President, Mr Justice Burton, in Richardson v U Mole Ltd (2005) UKEAT/0179/05; and Mr Recorder Luba in Hamling v Coxtease School Ltd (2006) UKEAT/0181/06.
11. There is it seems to me a jurisdiction, and if and in so far as the Chairman thought he did not have any jurisdiction he was in error. I say if and in so far as he thought that because paragraph 1 of the Judgment concludes "and that it would not be just and equitable to allow the amendment"

but paragraphs 13 and 14 look as if he is assuming that he has no jurisdiction. Either way, it seems to me that he did have jurisdiction. And equally I am satisfied that he did not properly exercise his discretion by taking into account all the factors that he should have taken into account. He is in my judgment clearly in error when he says:

"This is not just the misspelling of a name as the claimant represents nor just a typographical error,"

In fact, as we know from the solicitors' account, it was a combination of misreading the handwriting and then typing that up. The Chairman goes on:

"it is a different name altogether and the name of someone who never existed as an employee of the respondent."

Well that would be equally true of the Smith spelt Smythe or the Reid spelt Reed rather than Reid. He then says:

"Taken to its logical conclusion the claimant's argument would appear to be that to claim in the name of any fictional character could form the basis of a claim."

That in my judgment is not what the argument was, nor is it one which could realistically have been taken to have been the argument. The person who was making the claim was the identified employee, most of whose surname was spelt right, whose initials were given, whose address was given, and who had been a real person operating in those kitchens for some 30 years.

12. The question is whether in the circumstances of the case it was just and equitable to allow an amendment to be made so that her proper name was inserted. One might have thought at first blush that obviously it would be, but I do not think it would be appropriate for me to exercise my own discretion and say "Yes, of course the amendment must be allowed" because it may be that there are factors which have not been fully investigated which would point the other way and certainly as to which the Chairman has made no findings. One does not know, for example, what complications there might be as a result of the transfer. The Claimant's response in the Grounds of Resistance said this:

"1 Contrary to the Claimant's assertion, the Claimant is not employed by the Respondent as a cook. There is no record of the Claimant transferring from Durham Country Council to the Respondent, pursuant to a TUPE transfer or otherwise. Consequently, the Claimant has no claim against the Respondent.

2 Should it be demonstrated that the Claimant is or has been employed by the Respondent, the Respondent reserves its position to seek to amend its Ground of Resistance."

13. One does not know whether there is some point which can profitably be taken as to the error in name having caused real problems to the Respondent such as to make it unjust as to allow an amendment at this stage. My instinct is against that, but I do not think it would be right to follow that instinct rather than sending the matter back so it can be more fully explored as can the explanations as to how the error came about in the first place which, as Counsel for the Respondent pointed out, is something which has been dealt with only in the sketchiest detail so far.
14. It follows that I take the view that this Appeal should be allowed, that the decision of the Chairman should be set aside and the matter should be sent back to be reconsidered de novo by a fresh Chairman. I will therefore allow the Appeal on that basis.