United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MS NICOLA BRAGANZA (of Counsel) Instructed by: Messrs Duncan Lewis & Co Solicitors 1 Kingsland High Street Dalston London E8 2JS
For the Respondent	MR LACHLAN WILSON (of Counsel) Instructed by: Messrs Curwens Solicitors Crossfield House Gladbeck Way Enfield Middlesex EN2 7HT


 


SUMMARY

PRACTICE AND PROCEDURE

Amendment

Striking-out/dismissal

An Employment Judge erred in refusing permission to amend an ET1 to add an associative disability discrimination claim on the ground that no statutory grievance had been raised in respect of such a claim. If the proposed amendment was of or included complaint of discrimination by dismissal no such grievance was required. The application to amend and the application for setting aside the revocation of permission to amend was remitted to an Employment Judge for determination.

An Employment Judge did not err in revoking an unless order and restoring an ET3 which had been automatically struck out on the date of non-compliance with the order. The Employment Judge did not err in concluding that such steps were disproportionate to enforce an order requiring disclosure of the address of a potential witness. In any event the imposition of an unless order on 30 December 2008 for compliance by 2 January 2009 was unreasonable. The order did not and could not have been expected to come to the attention of the Respondent until after the time for compliance had passed.

THE HONOURABLE MRS JUSTICE SLADE

1. Mr Brill appeals from two decisions of two different Employment Judges made prior to the hearing of his substantive claims against his former employer. By Notice of Appeal dated 8 January 2009 he appeals from the decision of Employment Judge Metcalf of 10 December 2008 to revoke permission to amend his ET1, such permission having been granted by Employment Judge Bedeau. Employment Judge Metcalf refused permission to amend the ET1.
2. The second decision challenged is that of Employment Judge Southam of 6 January 2009 to strike out the unless sanction attached by Employment Judge Ryan to an Order made by Employment Judge Manley on 1 December 2008 that the Respondent disclose the last known postal address of a Mr Roy Kirwen.
3. By Judgment of 26 February 2009 an Employment Tribunal, hearing Mr Brill's claims, made the following decisions:

"1. The Claimant was unfairly dismissed.

2. The Claimant caused his dismissal to the extent of 100% and it is just and equitable that his award of compensation be reduced to nil.

3. The Respondents did not breach the Claimant's contract of employment when they dismissed him without notice.

4. The Respondents did not breach the Claimant's contract of employment nor did they make unauthorised deduction from wages by not paying him commissions after the termination of his employment.

5. The Respondent's Counterclaim is dismissed."

4. Mr Brill appealed from the decision that he had contributed 100% to his dismissal. That appeal has been the subject of a rule 3(10) determination as a result of which a ground of appeal, which is to be amended, is to proceed to a full hearing on the issue of whether the Employment Tribunal erred in determining that the Respondents were not in breach of contract or had not made unlawful deduction from wages by failing to pay Mr Brill certain commissions which he said were owed to him.
5. A ground of appeal raised in the Notice of Appeal which could have had a bearing on the unfair dismissal claim, namely a complaint that the Employment Tribunal wrongly refused to admit evidence from certain witnesses who Mr Brill wished to call in evidence, has no reasonable prospect of success. No further action is to be taken on it and it stands dismissed. Ground 2 of that same Notice of Appeal was not pursued. The ground of appeal which is to proceed to a full hearing has nothing to do with the unfair dismissal claim which had been brought by Mr Brill.
6. The question, therefore, arises as to whether the two appeals, which have been heard today, and their outcome are rendered academic. There is still extant a claim included in the Employment Tribunal claim lodged by Mr Brill, namely that for commission which he says is owed to him. However, the unfair dismissal claim which bears the closest relationship to a proposed amendment to add a Disability Discrimination Act 1995 claim will not proceed further. In any event, it is highly likely that even if such an amendment had been permitted to proceed and the Disability Discrimination Act 1995 claim were to be heard, its outcome may well be predetermined by the findings of fact made by the Employment Tribunal in the unfair dismissal proceedings. It may, therefore, be said to be an abuse of process to pursue such a claim.
7. The brief facts relating to these two appeals are as follows. Mr Brill commenced employment with the Respondent in February 1998 as a Sales Executive / Accounts Manager. He sold advertising space in magazines, specifically a magazine titled Manufacturing and Logistics IT. The magazine is owned jointly by the Respondent and Dean Berry.
8. There was an issue between the parties before the Employment Tribunal as to whether Mr Brill had been given a contract of employment requiring his attendance at the office between 9.00am and 6.00pm between Mondays and Fridays. What is clear is that Mr Brill was paid on a commission-only basis. The Employment Tribunal held that Mr Brill carried on working under the terms of a contract of employment which is dated in July 2004 despite the given notice of change in contract terms. By doing so the Tribunal held that he affirmed the contract. The Tribunal, therefore, held in paragraph 6.3 of its conclusions that the written contract of June 2004 was binding on Mr Brill and on the Respondent.
9. It appears that Mr Brill regarded himself as able to work flexibly. The Tribunal record in paragraph 4.2.1 of its decision that the Respondent provided the Appellant with a written statement by Mr Berry stating that he would be flexible with working hours to accommodate Mr Brill's responsibilities for looking after his children. Sadly, it seems that Mr Brill and his wife were going through a divorce and that Mr Brill played a considerable role in looking after their two children, one of whom had Attention Deficit Disorder.
10. The Tribunal found that the Respondent gave Mr Brill a written warning on 26 October 2004 for being late for work. He received another warning in November 2006, but that was not regarded as a formal warning. However, between 3 January 2007 and 17 May 2007 the Tribunal record that the Appellant only attended 28 full days out of a possible total of 96 days work. Mr Brill's contention was that the normal working day did not apply to him and that he was not obliged to come to work.
11. On 25 April 2007 he was given a further warning which purported to be a second and final warning. The Respondent asserted that since the beginning of the year Mr Brill had not worked a full week despite being given one week off for domestic commitments, one week for a religious holiday and one week off at Easter. The Tribunal recorded that the letter warned Mr Brill that the situation would have to be turned around, failing which the Respondent would have to terminate the Appellant's employment. The Tribunal found that Mr Brill was shown the letter and that it had not been withdrawn, these matters having been disputed by him.
12. On 10 May 2007 Mr Brill was invited to a disciplinary meeting which was held on 16 May 2007. The Tribunal record at paragraph 4.37 of its judgment that a note was taken by the Respondent which records that at that stage it was not the intention of the Respondent to terminate the Appellant's employment. The intention was to give a final warning about his attendance, timekeeping and general responsibilities.
13. At paragraph 4.38 the Tribunal find:

"According to that note Mr Brill became abusive, denied doing anything wrong and said the company could not do anything about it anyway. If anything was done he would sue. […] He said that they still had to pay him commission even if he never came into the office at all, that he could come and go as he pleased and no one could tell him otherwise. When Mr Saward said that if Mr Brill was not prepared to work from 0900 to 1730 and look after his accounts like other Sales Executives the employment would be terminated. Mr Brill said he was not prepared to do that and repeated that no one could do anything about it. Mr Brill became abusive and threatened legal action and at that point Mr Saward terminated the meeting."

14. The Appellant was dismissed by a letter following the meeting of 17 May 2007. He appealed against his dismissal. The appeal was conducted by the same person, Mr Saward, who had taken a decision to dismiss Mr Brill. The appeal was dismissed.
15. After a hearing lasting three days, the Employment Tribunal held at paragraph 6.4:

"The finding of the Tribunal is that the reason for dismissal was the Claimant's refusal to confirm that he would abide by a fundamental term of the contract, that is to say to attend the office between 0900 to 1800 Monday to Friday."

The Tribunal went on to conclude that the dismissal was unfair because the same person had taken the decision to dismiss as had determined the appeal. However, it decided that there should be a deduction in the award of 100% for contributory conduct by Mr Brill. Accordingly no award was made in respect of his unfair dismissal.

Appeal from the revocation of the grant of permission to amend the ET1

16. The relevant procedural history can be briefly stated as follows. A considerable time after the lodging of the original ET1 the Appellant's representative applied to amend the ET1 to bring a claim of associative discrimination under the Disability Discrimination Act 1995. He said that the application was made following the Judgment of the European Court of Justice in Coleman v Attridge Law [2007] IRLR 88.
17. The application to amend was made on 29 September 2008. An order granting permission to amend was made on 28 October 2008. On 31 October 2008 the Respondent protested at the grant of permission to amend and sought a review of the decision.
18. The grounds advanced by the Respondent for objecting to the application to amend the claim are set out in a letter dated 20 November 2008. The Respondent's solicitors pointed out the history of the proceedings, the fact that a disability discrimination claim had not been raised at an earlier stage and had not been referred to at a CMD hearing. At the CMD hearing on 28 May 2008 Employment Judge Cassel had identified the issues to be decided at the substantive hearing. These were recorded and sent to the parties on 1 July 2008. At no stage prior to 29 September 2008 did the Appellant suggest that the issues identified by Employment Judge Cassel were incorrect or incomplete.
19. Further, the solicitors for the Respondent drew attention to a jurisdictional issue, namely that the Appellant had never raised a grievance claiming that he was being treated less favourably on the grounds that he cares for his disabled son or that the Respondent had failed to make reasonable adjustments to enable him to do so. The Respondent contended that permission to amend to add a claim of associative disability discrimination by reason of the disability of his son should not have been granted because there was no jurisdiction to hear such claim, no grievance in respect of such a claim having been raised.
20. The Respondent's solicitors pointed out that it would have been possible for the Appellant to have made a claim based on disability discrimination by association well before the time when it was actually made, and there was no need to wait for the ECJ ruling in Coleman v Attridge Law. The solicitors went on to say that if the Employment Judge were minded to grant the Appellant's application, they would ask for a preliminary hearing to determine the jurisdictional issues.
21. On 10 December 2008 Employment Judge Metcalf revoked the permission to amend. In a letter from the Employment Tribunal office the reason given for revocation of permission to amend was that Employment Judge Bedeau had granted permission to amend under the erroneous impression that the Respondent was aware of the proposed amendments. The letter from the Employment Tribunal office continues:

"The Employment Judge refuses the permission to amend. Claimant's Representative has not dealt with the crucial jurisdictional argument that no grievance was sent to the Respondent about these fresh issues of disability discrimination. Claimant's legal advisers could have presented such a claim and have requested a stay pending the ECJ decision and so the Coleman v Attridge point is rejected. The issues to be decided will be as set out by Employment Judge Cassel on 20 May 2008."

Accordingly, the substantive hearing proceeded in January 2009 without a Disability Discrimination Act 1995 claim before the Tribunal.

22. Ms Braganza, who appears for the Appellant, contends that the Employment Judge erred in revoking the permission to amend the ET1. The Notice of Appeal challenging the revocation by the Employment Judge of permission to amend the ET1and the reconsideration and refusal of the amendment asserts that the Employment Judge erred because the Respondent's representative was aware of the application to amend. Therefore, the Employment Judge's decision to revoke the order by Employment Judge Bedeau was based on an incorrect premise.
23. It is also contended in the Notice of Appeal that there was no need to raise a grievance about any disability discrimination by association as such discrimination related to the Appellant's dismissal.
24. In oral submissions before me Ms Braganza raised a natural justice point which does not appear to have been raised in the grounds of appeal. No specific objection was taken by Mr Wilson to the natural justice argument being developed by Ms Braganza. There has been no application to amend the grounds of appeal to take this point.
25. So far as the grounds of appeal which are in the Notice of Appeal are concerned, Ms Braganza contends that Employment Judge Metcalf raised the issue of the need to raise a grievance given that disability discrimination by association was material to the Appellant's dismissal. There is no need to raise a grievance about any disability discrimination by association that was material to the Appellant's dismissal. Ms Braganza contends that the Employment Judge erred in relying on a jurisdictional argument, which in context must be the need to raise a grievance, to refuse permission to amend.
26. Permission to amend the grounds of appeal to insert a new ground, asserting that the revocation of the permission to amend was in breach of natural justice, was refused by me. Indulgence has already been granted in relation to amending the "fresh Notice of Appeal" considered on the 3(10) application. I also take into account that the Appellant has been represented by lawyers.
27. Mr Wilson for the Respondent contends that there was no error of law in the Tribunal's decision to revoke the permission to amend the ET1 and to refuse it on reconsideration. He relies on three points. First the Judgment of the European Court of Justice in Coleman v Attridge did not justify a delay in making the application to amend to add a claim under the Disability Discrimination Act 1995. The application to amend was long after the Appellant's dismissal and long after the lodging of the ET1. The appropriate course would have been to include such a claim and stay it pending the outcome of the European Court of Justice's determination in Coleman v Attridge.
28. Second, insofar as the proposed amendment is to be read as being a claim for reasonable adjustment under the Disability Discrimination Act 1995 for time to be given so that the Appellant could attend medical appointments or other matters related to the condition from which his son suffers, Attention Deficit Disorder, a reasonable adjustments claim requires a grievance to have been raised.
29. It is not in dispute between the parties, first, that a grievance in relation to a reasonable adjustment in respect of time needed to look after the Appellant's son and to attend to his disability-related needs was not made. It is not in dispute between the parties that, as a matter of law, there was a need for such a grievance to be raised before a Tribunal would have jurisdiction to entertain a claim for breach of a requirement to make reasonable adjustments. It is also agreed between the parties that insofar as a disability discrimination claim is of discrimination in relation to dismissal there is no need for a grievance to be raised.
30. Third, Mr Wilson contends that an amendment would, in any event, be otiose by reason of the findings of fact made by the Employment Tribunal hearing the unfair dismissal claim. He contends that such a claim was bound to fail by reason of the findings by the Tribunal as to the reason for the dismissal. He says that the Appellant was given full opportunity to give evidence and advance reasons before the Tribunal as to the basis of his claim. A complaint of failure to make reasonable adjustments was contrary to the Appellant's own case. The Appellant contended that he had been given permission by the Respondent to work flexibly and take time off to attend to his family.

Discussion

31. The Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 Schedule 1, rule 10(2) gives a Tribunal power to amend an originating application. There is also a power for an application to be made under rule 11(1) for the order to be varied or revoked. It also is to be noted that pursuant to rule 12:

"(1) Subject to paragraph (2) and to rules 10(7) and 18(7), [an Employment Judge] may make an order on his own initiative with or without hearing the parties or giving them an opportunity to make written or oral representations. He may also decide to hold a case management discussion or pre-hearing review on his own initiative.

(2) Where [an Employment Judge] makes an order without giving the parties the opportunity to make representations-

(a) the Secretary must send to the party affected by such order a copy of the order and a statement explaining the right to make an application under [sub-] paragraph 2(b); and

(b) a party affected by the order may apply to have it varied or revoked."

32. It was contended by Mr Wilson that the order made by Judge Metcalf on 10 December 2008 is to be viewed as part and parcel of an original determination of the permission to amend the ET1. In my judgment, the wording of the order is clear. The first step in the order is that the Employment Judge revoked the earlier permission given to amend the claim. The reason is given that Employment Judge Bedeau made it under the erroneous impression that the Respondent was aware of the proposed amendments.
33. The Employment Judge then appears to have considered afresh whether permission to amend should be granted which he then refused. It appears that the principal reason why permission to amend was refused was what was described as the crucial jurisdictional argument that no grievance was sent to the Respondent about the fresh issues of disability discrimination. There is also reference to the delay in presentation of a Disability Discrimination Act 1995 claim.
34. In my judgment the learned Employment Judge erred in refusing permission to amend on the principal or significant basis that no grievance had been sent to the Respondent about the disability discrimination issues. He could, perhaps, be forgiven for making such an observation because the terms in which permission to amend was sought did not make it clear whether the case to be made by way of amendment was a reasonable adjustments claim, which would have required a grievance to have been raised. No such grievance was raised.
35. However the proposed amendment was also apt to include an allegation that the Appellant's dismissal was an act of, or related to, disability discrimination. So construed the amendment would not have required a grievance to have been raised. Accordingly, in my judgment, the refusal of permission to amend was made on an erroneous approach to the law. The mistaken view that a grievance was required played a significant role in the decision to refuse the amendment.
36. What then is the consequence of this conclusion? The Appellant could have applied to have the order of 10 December 2008 set aside or could have issued a fresh application for permission to amend. That was not done and an appeal was made to this Employment Appeal Tribunal. I have considered whether, notwithstanding the misdirection, the decision of the Employment Judge was plainly and unarguably correct applying the Dobie v Burns International Security Services (UK) Ltd [1984] ICR 812 approach. That has not been established in this case.
37. A decision as to whether to allow an amendment is an exercise of discretion taking into account a variety of matters. That exercise of discretion is, in my judgment, something for an Employment Judge to undertake in this case and not for this Employment Appeal Tribunal. With considerable reluctance I feel compelled to remit the application to amend the ET1 to an Employment Judge.
38. The application for revocation of the earlier permission to amend the ET1 is remitted for consideration. Whilst the Appellant has not been given leave to add an natural justice challenge to the decision to revoke the permission to amend, this Employment Appeal Tribunal would urge any Employment Judge to whom the matter is remitted to give both parties the opportunity to make representations before a decision is taken de novo as to whether the original permission to amend the claim should be revoked.
39. In remitting this issue I give words of caution to the Appellant. If permission to amend remains in place, there will undoubtedly have to be a preliminary hearing to consider any jurisdictional, abuse of process or time limit points which may be raised in resisting the new claim before it can be considered in substance. In addition at any preliminary hearing consideration would no doubt also be given to the extent to which the findings of fact and conclusions of the Employment Tribunal which heard and determined the Appellant's claim will remain in place. There could well be cost consequences if the amendments were to proceed and were to prove to be unreasonably pursued.

Appeal from the revocation of the sanction of striking out the Response to the Appellant's claim

40. On 6 January 2009 Employment Judge Southam reviewed of his own motion a strike-out sanction attached by Employment Judge Ryan to the order of Employment Judge Manley. Employment Judge Southam held that striking out was too severe a sanction to impose for breach of the Order. Instead, the Employment Judge ordered the Respondent to supply to the Claimant's representative by 4.00pm on 7 January 2009 any information they had regarding to Mr Kirwen's last known address.
41. The events which led to the order under appeal are as follows. The Appellant wished to contact a Mr Kirwen, a fellow employee, in order to obtain evidence from him as to whether he had a written contract of employment because the Appellant claimed that he had no such contract. The Appellant also wished to obtain evidence from Mr Kirwen as to the working practices and expectations within the Respondent and the flexibility which was allowed. He also wished to obtain evidence from him as to commission payments made after cessation of employment. The Appellant sought disclosure details of Mr Kirwen's last known address which the Respondent refused to give. On 27 June 2008 the Appellant made an application to the Employment Tribunal for such contact details to be disclosed.
42. On 1 December 2008 an Employment Judge ordered the Respondent to disclose Roy Kirwen's address by 5 December 2008. The Respondent replied on 5 December 2008 but did not disclose his address. On 6 December 2008 the Appellant applied for an unless order to be attached to the Order requiring disclosure of Roy Kirwen's last known address. On 18 December 2008 the Respondent asked the Tribunal not to make an unless order. On 30 December 2008 the Employment Tribunal made an unless order that the ET3 be struck out unless the address of Mr Kirwen was supplied by the Respondent by 2 January 2009. The address was not supplied by that date and the ET3 was automatically struck out.
43. On 5 January 2009 the Respondent wrote that they were in the process of obtaining Mr Kirwen's details on or before 6 January 2009. On 6 January 2009 an order was made reviewing the unless order. An order was substituted, or the original order varied so that the particulars be given by the Respondent to the Claimant's representative by 4.00pm on 7 January 2009 of any information they had regarding Mr Kirwen's last known address.
44. The full hearing of the case started on 12 January 2009. The Appellant says that he did not have sufficient time before the start of the hearing to be able to contact Mr Kirwen. It is not clear whether or not he actually made any efforts to do so.
45. Ms Braganza, for the Appellant, says that the Employment Judge erred in failing to obtain submissions from the Appellant before revoking the unless order. She contends that that was a denial of natural justice. Moreover, it is said in the Notice of Appeal that the process that Employment Judge Southam used to review Employment Judge Ryan's order was contrary to the procedure set out in case of Maresca v Motor Insurance Repair Research Centre [2005] ICR 197, which, it is said, was to be used as applicable in this case.
46. Ms Braganza contended that the Employment Judge failed to take into account considerations referred to in Governing Body of St Albans Girls' School & Another v Neary [2010] IRLR 124. Before deciding to revoke the unless order the Employment Judge should have considered the requirements set out in CPR rule 3.9 which are referred to in St Albans v Neary as a useful checklist. She also points out that the Employment Judge should have taken into account the fact that the Respondent had failed to meet previous deadlines and that compliance was important, bearing in mind the imminent start of the hearing.
47. Mr Wilson, for the Respondents, contends that the Employment Judge did not err and that the case of St Albans was not applicable. In any event that case is concerned with an application asking for relief from a sanction. In this case the Employment Judge was, of his own motion, reviewing and considering an unless order. This was made on 30 December 2008 and required compliance by 2 January 2009 which was over the New Year period, failing which the ET3 would be struck out. The judgment of the Employment Judge that to strike out the ET3 would be disproportionate could not be said to be reached in error.
48. Further, Mr Wilson pointed out that all that Employment Judge Southam did was to remove the unless part of the order. The order requiring supply of Mr Kirwen's address by a varied date remained. That order was complied with.

Discussion

49. Pursuant to Employment Tribunal rule 10(2)(b): "An order may be made that a party provide additional information." Under rule 13(1)(b), if a party does not comply with an order made under the rules an Employment Judge or Tribunal may make an order to strike out the whole or part of the claim, or, as the case may be the response. rule 13(2) provides:

"An order may also provide that unless the order is complied with, the claim or, as the case may be, the response shall be struck out on the date of non-compliance without further consideration of the proceedings or the need to give notice under rule 19 or hold a pre-hearing review or Hearing."

50. There is no issue between the parties as to the fact that, as it was explained in the case of Chukwudebelu v Chubb Security Personnel [2008] EWCA Civ 327, if there is non-compliance with an unless order by the date required by that order the pleading is automatically struck out.
51. In my judgment the Employment Judge had the power to remove the unless sanction from the order and to reverse the striking out of the ET3. The ground upon which he nullified the effect of the strike-out was entirely unobjectionable and correct. The sanction of striking out the response to an entire claim on the basis of failure to supply an address of a potential witness in the circumstances of this case is appropriately, regarded as disproportionate.
52. Further, the Employment Judge could have easily concluded that giving notice of the unless order only on 30 December 2008 of a strike-out on 2 January 2009 was unreasonable in any event because it was unlikely to come to the notice of the Respondent's representatives over the New Year period. Indeed when the Respondent returned to work after the Christmas and New Year break on about 5 January 2009 they informed the Employment Tribunals that they had only just received notice of the unless order. That is entirely unsurprising.
53. Accordingly in my judgment the order of 6 January 2009 of Employment Judge Southam is entirely unobjectionable. As to whether procedurally the Employment Judge should have lifted the sanction which had been imposed of striking out the ET3 without giving the Appellant the opportunity of making representations, if there had been time for that to be done then it would, in the ordinary way, be appropriate for the Employment Judge to give parties an opportunity to make representations before making or revoking an order.
54. In this case no representations could have been made by the Appellant which, in my judgment could have affected the outcome. The unless order was imposed on 30 December 2008 with a few days over the New Year period given for compliance, absent which the disproportionate and severe sanction of strike-out would follow. Applying Dobie v Burns, even if the Employment Judge had erred in failing to give the Appellant the opportunity to make representations before taking the step of reviewing the strike-out sanction, it would have been plainly and unarguably the case that that strike-out sanction would have been removed and the ET3 restored.
55. As was said in the Governing Body of St Albans Girls' School & Another v Neary, each case is fact-sensitive. In any event unlike the case under appeal, that case was concerned with an application for relief from sanction. The Respondent in this case was unaware that an unless order had been imposed until after it had been implemented. Even if St Albans had been applicable, the principles explained in that case and those in CPR 3.9 are fact-sensitive. In the circumstances of this case, the Employment Judge's decision is unimpeachable. Accordingly, the appeal against the Judgment and decision of Employment Judge Southam is dismissed.

Conclusion

56. (1) The appeal from the decision of Employment Judge Metcalfe of 10 December 2008 to revoke permission to amend the ET1 is allowed. The application to revoke permission to amend the ET1 and, if necessary, the application to amend the ET1 are remitted to an Employment Judge for decision.

(2) The appeal from the judgment of Employment Judge Southam of 6 January 2009 is dismissed.