United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR JAMES PALMER (of Counsel) Instructed by: Messrs Nalders Solicitors 38/39 Lemon Street Truro Cornwall TR1 2NS
For the Respondents	MR RICHARD SHEPHERD (of Counsel) Instructed by: Cornwall County Council Legal Services New County Hall Truro Cornwall TR1 3AY


 


SUMMARY

PRACTICE AND PROCEDURE: Striking-out/dismissal

PRACTICE AND PROCEDURE: Time for appealing

PRACTICE AND PROCEDURE: New evidence on appeal

Strike out. Want of jurisdiction. New point taken on appeal by way of amendment to Notice of Appeal. Whether appeal properly instituted; whether amendment ought to be permitted.

HIS HONOUR JUDGE PETER CLARK

1. The parties in this matter, which is proceeding in the Exeter Employment Tribunal, are Mrs Bennett, Claimant, and (1) the Governing Body of Pennoweth School )(the School), (2) Cornwall County Council (the Council) and (3) Troy Crawford, Head Teacher of the school, Respondents.
2. This is an appeal by the Claimant against an order made by Employment Judge Hollow at a Case Management Discussion (CMD) held by telephone on 20 June 2007, striking out her claim brought under the Disability Discrimination Act 1995 for failure to comply with an earlier case management order made by Employment Judge Christensen, again at a CMD by telephone held on 3 May 2007, directing the Claimant to serve medical evidence on which she intended to rely by 31 May.

History

3. The Claimant was employed at the School as a teacher until her dismissal effective on 31 August 2006. Following dismissal, she presented her first form ET1 to the Employment Tribunal (case number 1701815/06) on 28 November 2006, alleging unfair dismissal, both under s103A (protected disclosure) and s98 of the Employment Rights Act 1996. That claim was resisted.
4. On 12 March 2007, she presented a second form ET1 (new case number 1700488/07), effectively adding a claim under the DDA. Whilst that claim was set out on a standard form ET1, page 4 of the form was omitted. The claim was nevertheless accepted by the Employment Tribunal and no objection to its acceptance was taken by the Respondents either in their second form ET3, or at the CMDs, first before Judge Christensen and then Judge Hollow.
5. The Claimant did not comply with the order to serve medical evidence by 31 May and at the CMD hearing before Judge Hollow , he made the following order:

"The claimant having failed to provide the respondent with the medical evidence upon which she wishes to rely in support of her disability claim and having been given an opportunity to show cause orally why this order should not be made, the claim of disability discrimination be struck out pursuant to Rule 13 Employment Tribunals Rules of Procedure 2004."

6. Against the strikeout order, the Claimant appealed by a notice lodged on 2 August 2007, just within the 42 day time limit for appealing to the EAT. Accompanying the notice were, among other documents, copies of both forms ET1 presented to the Employment Tribunal.
7. On receipt of the notice, a member of the EAT staff noted that page 4 of the second ET1 was missing. The Claimant was telephoned about the missing page. She promptly responded by fax the same day stating:

"Please note there is no page 4 with the DDA claim as this is already supplied with my unfair dismissal claim".

8. The EAT then treated the original Notice as being an appeal not properly instituted under Rule 3 due to the missing page of the second form ET1. The Claimant was invited to apply for an extension of time for appealing. She did so and then filed a further Notice of Appeal on 23 August. Her application for an extension of time was opposed by the Respondent. Further representations were then made but before any decision was taken by the Registrar on that application, on 11 December 2007, the EAT case handler wrote to the Claimant on behalf of the Registrar accepting that the appeal had been properly instituted in time. The Respondent did not accept that this was in fact the case; a point to which I shall return.
9. The appeal then went through the paper sift process and HHJ Birtles formed the opinion, communicated by a letter to the parties dated 11 January 2008 that the appeal did not raise any point of law: the grounds of appeal prepared by the Claimant acting in person disclosed no arguable point of law such as to engage the Employment Appeal Tribunal's jurisdiction to hear appeals on errors of law only. Rule 3(7) of the EAT Rules was applied and a direction given that no further action be taken on the appeal.
10. Dissatisfied with that opinion, the Claimant exercised her right to an oral hearing before a Judge under Rule 3(10). Shortly before that hearing, held on 15 May 2008 before Wilkie J, the Claimant instructed solicitors who lodged a skeleton argument which was considered by that Judge.
11. The solicitors took a fundamental point going to Judge Hollow's jurisdiction to make the strike-out order. That submission persuaded Wilkie J to permit the appeal to proceed to a full hearing, now before me, for the reasons given in his judgment delivered that day. By his order dated 15 May, he directed at paragraph 1

"There be leave to amend the Appellant's grounds of appeal by deleting in its entirety the Notice of Appeal dated 2^nd  July 2007 and subsequent one dated 23 August 2007 and substitute for it as the Grounds Of Appeal the document titled Skeleton Argument of the Appellant dated 14 April 2008 on the basis of the amended Notice of Appeal, the Appellant's application, pursuant to Rule 3(10), is allowed."

However, at paragraph 10, he added:

"Liberty to the parties to apply on paper on notice to the other parties to vary or discharge this Order: the Employment Appeal Tribunal itself reserves the right to vary or discharge this Order on prior notice to the parties."

That completes the procedural background.

The Appeal

12. A convenient starting point is that it is common ground between counsel that Judge Hollow did not have jurisdiction to strike-out the Claimant's DDA claim. That is because the order made by Judge Christensen was not an "unless" order under Rule 13(2) of the Employment Tribunal Rules, non-compliance with which would lead to an automatic strike-out. It was an order made under Rule 13(1); any subsequent strikeout order could only be made, if appropriate, under Rule 18(7)(e) and Rule 17(2) provides that orders under Rule 18(7) may not be made at a CMD. Hence the jurisdictional point taken for the first time in the solicitor's skeleton argument on 14 April 2008 is a true 'knockout point', to adopt the expression used by Brooke LJ in the case of Glennie v Independent Magazines UK Ltd [1999] IRLR 719. That, it may be thought, is an end to the matter. The Judge had no jurisdiction to make the order now under appeal and, therefore, it should be set aside. However, the Respondents do not let the matter rest there.
13. Mr Shepherd has addressed me on the relative unfairness to the Respondent of allowing the order for permission to amend made by Wilkie J to stand. He points out that from the date of the original order on 20 June 2007 the absence of jurisdiction point was available for the Claimant to take. Indeed, she had said that she wished to consult a lawyer who would be available in July 2007, yet nothing was done. The point was not taken in the second Notice of Appeal in August 2007. It was not taken at the time that Birtles J ruled that the appeal should not proceed under Rule 3(7) in January 2008. It was only taken at the time of the Rule 3(10) hearing. Indeed, no new grounds of appeal under Rule 3(8) were lodged following Judge Birtles' opinion.
14. Mr Palmer accepts the force of that submission in terms of delay. However, he draws my attention to the observation of Phillips J in British Midland Airways v Lewis [1978] ICR 782 at page 784H to 785A where the then President said:

"The position, as it seems to us, is this, this being a question as to jurisdiction, the Industrial Tribunal should have taken the point themselves even if the parties did not and they cannot merely by silence confer upon themselves a jurisdiction which they do not have. Equally, it would be open although the material facts have not been found because the point had not been taken for this question to be dealt with upon this appeal because if there is no jurisdiction, then equally we ought not to embark upon the matter."

15. I return to the case of Glennie where the Court of Appeal made it clear that it was only in exceptional circumstances that a new point can properly be raised at the appellate stage. The essential ingredients of allowing a new point to be taken are that it is a discrete point which does not require further evidence on remission, particularly a point going to jurisdiction (see the observations in the judgment of Talbot J in House v Emerson Electric Industrial Controls [1980] ICR 795 and it must be, as Brooke LJ put it, "a knockout point". It seems to me that the jurisdictional point now taken in this appeal complies with each of these requirements.
16. I have been referred to the helpful summary of principles on amendment provided by HHJ Serota QC in Khudados v Leggate [2005] IRLR 540 at paragraph 86. It seems to me that he did not have in mind the particular facts of the present case. I have taken into account those principles but ultimately it seems to me I have to carry out a balance as a matter of justice between the parties. On the one hand, the prospect of dismissing this appeal and thus upholding an order striking out a part of the Claimant's claim in circumstances where the Tribunal had no power do to so, with the delay which has plainly occurred on the Claimant's side between 20 June 2007 and 14 April in taking the point As to that, it would appear that the Claimant was not legally represented during that period, a factor which in these circumstances I am entitled to take into account, although I accept Mr Shepherd's submission that she had access to lawyers and appears not to have pursued that until the very last minute. However, carrying out the balancing exercise, I have come to the conclusion that it would be wrong to set aside the permission granted by Wilkie J to amend the original Notice of Appeal. There is, therefore, no limitation issue since the amendment dates back to the original notice which itself was properly instituted within time, page 4 of the second Form ET1 having been omitted when that Form was presented to the Employment Tribunal.

Conclusion

17. Given the concession properly made on behalf of the Respondent that Judge Hollow had no jurisdiction to make the strikeout order, I shall allow this appeal and set aside that order.