HIS HONOUR JUDGE RICHARDSON
1.
This is an appeal by Ms Pamela Richardson (“the Claimant”) against part
of a judgment of the Employment Tribunal sitting in London East (Employment
Judge Gilbert presiding) dated 20 July 2009. The Tribunal dismissed claims of
disability discrimination and race discrimination which she brought against her
employers HSBC Bank plc (“the Respondent”). It upheld her claim of unfair
dismissal but awarded her only limited compensation.
2.
This hearing is taking place nearly 2 years after the Tribunal’s
judgment. This is because an initial Notice of Appeal was found to disclose no
reasonable ground for appealing; and a fresh Notice of Appeal, permissible
under rule 3(8) of the Employment Appeal Tribunal Rules, was also found
to contain many arguments which disclosed no reasonable grounds for appealing.
Two grounds were permitted to go forward to this hearing.
3.
These grounds both relate to the Tribunal’s finding of unfair
dismissal. The Tribunal, as we will see, found that the Claimant’s dismissal
was unfair by reason of a failure to follow the required statutory procedure
and a failure in any event to follow a fair procedure. It is argued that the
Tribunal erred in law in two respects: (1) failing to consider whether the
Respondent made reasonable attempts to find alternative employment for the
Claimant, effectively placing upon her an onus to suggest such employment; (2)
failing to consider whether her selection for redundancy was fair in all the
circumstances. If these errors are established, it is then argued that the
Tribunal’s assessment of compensation will have to be revisited.
4.
There has also been a late application on behalf of the Claimant to
amend the Notice of Appeal to argue a third point, also relating to unfair
dismissal. That application was made on 4 July and refused by the Registrar on
7 July. By letter dated 8 July the Claimant has appealed that
refusal. I have directed that this interlocutory appeal be listed with today’s
hearing. After discussion with the parties I have directed that the
interlocutory appeal be referred to the full constitution sitting today (see
rule 21(1) of the Employment Appeal Tribunal Rules 1993). We have
today considered as a full Tribunal both the appeal and the question of
permission to amend.
5.
The hearing before the Tribunal took 9 days, and the Tribunal’s reasons
run to some 66 pages. Much of the reasoning, however, relates to issues of
disability and race discrimination with which we are no longer concerned. We
can therefore summarise the findings and reasoning of the Tribunal on the
question of unfair dismissal relatively briefly. When we have done so we will
consider in turn the two grounds with which the appeal was concerned from the
outset and then the application for permission to amend.
6.
It is relevant to note, as we turn to the facts, that the Claimant was
dismissed at a time when the law of unfair dismissal included section 98A of
the Employment Rights Act 1996, inserted by the Employment Act 2002
and repealed subsequently by the Employment Act 2008. This in effect
required an employer, if the dismissal was to be fair, to comply with a
statutory procedure, generally the Standard Dismissal and Disciplinary
Procedure (“the SDDP”) set out in Schedule 1 to the Employment Act 2002.
The background facts
7.
The Claimant’s employment began on 22 January 1991. From 1996 onwards
she was employed at the Respondent’s Regional Treasury Centre in London. By 2005 she worked on the RTC and Emerging Markets Desk (“the Desk”) within an
area known as the Customer Services, Deal Processes and Confirmations area.
She was not highly paid: her gross pay was of the order of £23,000 per annum.
8.
The Claimant’s role had developed over the years. By 2000 she was
emerging markets payment clerk. By 2003 her main role was liquidity clerk
although she also continued to work on emerging markets payments. The Tribunal
noted that she had been willing to work unsociable hours to learn a new system,
and that her flexible approach and willingness to work additional hours was
much appreciated by the Respondent. In 2005 she trained in some aspects of
customer services.
9.
In 2005 a large part of the work of the Desk was transferred to Malaysia. This left the Claimant and Mr Mark Hollands working on the Desk. In October
2006, following the transfer of yet further work abroad, the Desk was moved
from the Customer Services Area to a different area, Central Processing Europe
(“CPE”), under the supervision of managers there.
10.
Early in 2007 the Respondent decided that it was necessary to reduce
costs and operations by making head count reductions in all business areas. In
March 2007 a senior manager, Mr Dix, decided that the Respondent could function
without the Claimant and Mr Hollands by moving their tasks elsewhere; he sent
an email to a human resources manager indicating that they should be considered
for redundancy. A report in April 2007 supported this conclusion, recommending
that both roles could be absorbed in their entirety into other departments.
The report also indicated that full and accurate documentation of current
procedures would first be necessary, and that there was scope for efficiency
improvements.
11.
As the Tribunal found, the Respondent considered the Claimant and Mr
Hollands to be at risk of redundancy from March 2007, although the Claimant did
not know it. On 29 May 2007 Mr Hollands was put on garden leave during a
redundancy consultation; subsequently he was made redundant.
12.
Some months passed, however, before the Claimant was made redundant.
She was retained while others were cross-trained (to use the Tribunal’s phrase)
in the work of Mr Hollands and herself. She was not cross-trained in any other
work; the Tribunal found that she was “indispensable” on the Desk during June
and July, with increased workload and responsibility now that Mr Hollands had
left and others were inexperienced.
13.
By July 2007, however, the Respondent decided that the Claimant should
be notified at a meeting that she was at risk of redundancy. On 1 August she
was asked to attend a meeting with Mr Dix for this purpose. She was given no
forewarning and no opportunity to bring anyone with her. She was told that the
majority of the tasks she undertook would be moved elsewhere. She was told
that she need not attend work after that; and she was given a letter and a
draft compromise agreement. The letter said that her position was at risk of
redundancy and a 30 day consultation period was commencing. It said that “if
no alternative role was identified” it was likely that her employment would end
at that date.
14.
The Respondent alleged, as part of its case, that the Claimant was
herself seeking to be made redundant. The Tribunal did not accept that this
was so. The Tribunal found that, although she was overwhelmed by her workload
in June and July 2007, she did not desire the end of her career with the
Respondent: she had a son at a fee-paying school and this was not an option
which she could consider.
15.
At this time – August 2007 – the proposals to shift the work of the Desk
were still at an early stage. For some months two employees from the CPE function who had recently trained to do the work (Ms Carter and Ms Garton) took over the work
of the Desk. Ms Carter was a temporary employee, newly appointed. Also
involved was another employee, recruited to CPE from Malaysia in about August
2007. The Tribunal found that by early 2008 only residual functions of the
Desk were outstanding. Others had been transferred elsewhere. Those residual
functions were undertaken by the CPE employees.
16.
The Claimant did not sign the compromise agreement. She did, however,
remain away from work. Quite apart from the request to her to do so, she had a
booked operation and was then certified sick by reason of stress. During this
period she was told (in a letter dated 3 September) that a manager had
attempted to contact her several times about redeployment. Details of
vacancies were enclosed with that letter; and the Claimant was asked for an
up-to-date CV.
17.
On 10 September, the Respondent wrote to her again. The Tribunal found
that this letter was intended to be, and was, a step 1 letter for the purposes
of the SDDP. The letter invited the Claimant to a meeting on 14 September “to
discuss your potential redundancy as, in the absence of an alternative role for
you, it is likely that your employment will cease.” The Claimant declined to
attend, citing her continued ill health and enclosing a doctor’s letter. She
asked for any decision to be communicated to her by post.
18.
As the Tribunal found, no meeting took place on 14 September. By letter
dated 21 September the Respondent confirmed to the Claimant that she was
dismissed on grounds of redundancy.
The Tribunal’s conclusions
19.
The Tribunal found the dismissal to be unfair because the Respondent did
not hold a meeting, in breach of the requirements of Step 2 of the SDDP: see
paragraph 135 of the Tribunal’s reasons. There is no cross-appeal against this
finding, and it is not necessary to set out the Tribunal’s detailed reasoning
for its conclusion.
20.
The Tribunal next found that the Claimant’s dismissal was for a reason
relating to redundancy, accepting the Respondent’s case that it was because the
requirements of the Respondent’s business where she was employed for employees
to carry out work of the kind which she did were expected to cease or diminish:
see paragraph 136 of the Tribunal’s reasons.
21.
The Tribunal also found, however, that the Claimant’s dismissal was
procedurally unfair quite apart from the fact that the SDDP was not followed.
A fair procedure would have involved the Respondent in postponing the meeting
on 14 September and giving the Claimant a reasonable opportunity to attend on a
subsequent occasion, perhaps at a location she could manage; or at the very
least to make submissions: see again paragraph 136 of the Tribunal’s reasons.
22.
The Tribunal also found, however that the Claimant would have been
dismissed by the Respondent “by no longer than a month after 21 September
2007”. We will set out the reasoning of the Tribunal for this conclusion,
which is to be found again in paragraph 136 of the reasons.
“If the Respondent had followed a fair procedure prior to
dismissing the Claimant it would have held a meeting on 14 September. It would
at that meting have decided to postpone it to give the Claimant a reasonable
opportunity to attend. It would also have considered whether the meeting could
have been held elsewhere. It would also have invited the Claimant to make
representations in writing if she was not going to be able to attend the
adjourned meeting for consideration at the adjourned meeting. The Tribunal has
found it is unlikely the Claimant would have attended an adjourned meeting but
it is likely she would have made representations to be considered at such an
adjourned meeting. The Tribunal has found this because the Claimant has had no
difficulty in communicating in writing or on the telephone during her illness.
She submitted a grievance by letter after she had her day surgery. After she
was dismissed she consulted solicitors and instructed them on her behalf.
However whether she attended a meeting or made representations for
consideration at the meeting the Tribunal has found it is very unlikely those
representations would have been about alternative work or about the pool for
consideration.
Any representations the Claimant made would have contested the
redundancy situation existing at all. The Tribunal finds this because the
Claimant at no time prior to dismissal or after it, by use of the modified
grievance procedure, until in her witness statement in the Tribunal made any
suggestions about alternative work or submitted a CV. It was only in her
witness statement she for the first time suggested alternative work on the
amendment desk. Further the Tribunal has found that at no time prior to giving
evidence did she suggest that she should have been retained on the CPE desk or
that another employee should have been ‘bumped’. The Tribunal has therefore
found that if the Respondent had held a further meeting and at that meeting
considered whether there was a redundancy situation and whether alternative
work had been explored it would have found that there was redundancy situation
and alternative work had been explored with the Claimant but that she had
failed to engage in the process. It would have then have gone on to consider
whether to dismiss and if so whether in reaching a decision to dismiss that was
a reasonable decision. It would then have decided to dismiss the Claimant.
The Tribunal has found the Claimant would have been dismissed by no longer than
a month after the 21 September 2007. The Tribunal finds the breach of the
Statutory Dismissal Procedure by failing to hold a meeting and in breach of the
general requirements was a breach which at the end of the day made very little
difference. The Claimant was not engaging in the process of finding
alternative work and would not have done so if she had been given the
opportunity to attend a meeting at a later date or make representations to it.
In the circumstances the Respondent is ordered to pay to the Claimant
compensation made up of a compensatory award of one month’s net wages together
with £300 for loss of statutory rights and a 10% uplift. The Respondent is a
large employer and while compliance with the process may have made little
difference it should have complied. The Claimant has no entitlement to a basic
award as she has already received a redundancy payment.”
Suitable alternative work
23.
On behalf of the Claimant, Mr Sykes first submits that the Tribunal
failed to consider whether the Respondent made reasonable attempts to find
alternative employment for the Claimant, effectively placing upon her an onus
to suggest such employment. He relies on Williams v Compair Maxam
[1982] IRLR 83 at paragraph 19. He submits that the reasoning of the Tribunal
effectively placed upon the Claimant a burden to pursue the question of
alternative employment (which was an error of law) and to do so at a time when
she was ill (which was unjust). He points out that the only reference to the
sending of any vacancy list was on 3 September 2007; he says that this was a
vacancy list only for managerial jobs, many of which were past the date for
application. If the Tribunal had considered this matter, it would have been
bound to hold that no reasonable attempts were made to find alternative
employment; and would then have been required to factor this into its findings
on the question of compensation.
24.
On behalf of the Respondent, Ms McCann submits that the findings of the
Tribunal were sufficient to deal with the question of alternative employment.
She refers to the letters dated 1 August 2007, 3 September 2007 and 10
September 2007 which we have already summarised in this judgment. She says
that no particular issue was raised relating to alternative employment in the claim
form or in the Claimant’s witness statement, or by solicitors when the Claimant
instructed them. She points out that the duty of an employer to search for
suitable alternative employment does not require the employer to take every
conceivable step, but only reasonable steps: see Quinton Hazell Ltd v
Earl [1976] ICR 296 and British United Shoe Machinery Co Ltd v
Clarke [1978] ICR 70. The “range of reasonable responses” test is
applicable; and the Respondent did sufficient to meet this test. Ms McCann
refers to Seddington & anr v Virgin Media Ltd [2009]
UKEAT/0539/08 for the proposition that inaction by a claimant is a material
consideration for a Tribunal and for its observations, in paragraph 15, on the
burden of proof.
25.
On this part of the case, our conclusions are as follows.
26.
In Compair Maxam the Appeal Tribunal set out principles
which are of general application to the handling of redundancies. They were
fashioned in the context of cases where employees were represented by an
independent trade union; but they are widely accepted as relevant, with
appropriate adjustments, to other cases. The fifth principle is
“The employer will seek to see whether instead of dismissing an
employee he could offer him alternative employment”
27.
In this case, where the Tribunal found that the dismissal was in any
event unfair by operation of section 98A(1), it remained important to consider
whether the Respondent took reasonable steps to see if it could offer the
Claimant alternative employment. It was relevant to compensation.
28.
The principles upon which compensation was assessed in such cases during
the period when section 98A was in force were expounded by the Appeal Tribunal
(Elias P presiding) in Software 2000 v Andrews [2007] ICR 825 at
paragraph 54. It will suffice for the purposes of this judgment to cite the
first two heads:
“(1) In assessing compensation the task of the tribunal is to
assess the loss flowing from the dismissal, using its commonsense, experience
and sense of justice. In the normal case that requires it to assess for how
long the employee would have been employed but for the dismissal.
(2) If the employer seeks to contend that the employee would or
might have ceased to be employed in any event had fair procedures been
followed, or alternatively would not have continued in employment indefinitely,
it is for him to adduce any relevant evidence on which he wishes to rely.
However, the tribunal must have regard to all the evidence when making that
assessment, including any evidence from the employee himself. (He might, for
example, have given evidence that he had intended to retire in the near
future.)”
29.
In Seddington the Appeal Tribunal (Underhill P presiding)
considered how this guidance applied in a case where the issue was whether the
employee would have found and accepted alternative employment. He said:
“The burden may indeed be on him to raise the issue (if the
employee has not) – that is, to assert that there was no suitable employment
that the employee could or would have taken – and he will also have to provide
appropriate evidential support for that assertion: the basic facts about
alternative employment will be within his knowledge and not – at least not
always or not completely – within the employee’s. But if he raises a prima
facie case to that effect, it must, it seems to us, be for the employee to
say what job, or kind of job, he believes was available and to give evidence to
the effect that he would taken such a job: that, after all, is something which
is primarily within his knowledge. To the extent that any uncertainty about
the position is the result of the absence of evidence which the burden was on
the employee to supply, then it would be unfair for that uncertainty to be
deployed against the employer.”
30.
In our judgment the Employment Tribunal’s reasoning does not adequately
address this issue.
31.
In the first place the Tribunal appears to have considered the issue in
the context of the question whether holding a meeting would have made any
difference: see paragraph 136. This is the wrong starting point. The
Respondent had known for many months that the Claimant was potentially to be
made redundant. On the face of it, there was a lengthy period during which
alternative employment could have been considered for her. She was, as the
Tribunal found, a long-serving employee who had proved flexible and hard
working in the past and who undertook a substantial workload in June and July.
She was not a highly paid employee. The Tribunal ought to have considered
whether it was unreasonable, when her redundancy was in prospect and others
were being “cross trained” to take over the remaining work, to postpone
consideration of alternative employment until 1 August. Moreover, having
shouldered a heavy workload in June and July and having been informed quite
suddenly of her redundancy at the beginning of August, she was off work for an
operation and then with stress in August and September. The Tribunal ought to
have considered whether it was unreasonable to consider her for alternative employment
only for a short period.
32.
In the second place, the Tribunal does not seem to have proceeded on the
basis that it was for the Respondent to place evidence before it on the
question whether there was suitable alternative employment for the Claimant.
This was evidence for the Respondent to produce, as Seddington
makes clear, since it was within the knowledge of the Respondent. Although the
Tribunal makes reference to the letters of the Respondent stating that there
was no alternative employment, there are no adequate findings on this question.
33.
We are not at all impressed by the evidence to which Ms McCann pointed
concerning the availability of alternative employment. The list appended to
the letter dated 3 September consisted mainly of specialist or management
jobs. The date of application had passed for many of them. The Respondent,
however, as its response form makes plain, is an organisation with 40,000
employees. We find it difficult to suppose that the list sent to the Claimant
was really all that could have been done to help a long-serving employee,
especially given that she was not highly paid and had proved flexible in the
past. Ultimately, however, these will be matters for the Tribunal on
remission.
Fair selection
34.
Mr Sykes then submits that the Tribunal has failed to consider whether
the Claimant’s selection for redundancy was fair in all the circumstances. He
submits that it is incumbent upon an employer to establish criteria for
selection which are objectively verifiable against such matters as attendance
record, efficiency, expense or length of service. He again refers to and
relies upon Compair Maxam. Moreover these criteria should
be established in consultation with employees or unions. He submits that even
on the Tribunal’s findings no attempt was made to consult the Claimant until
August, when the decision to make her redundant was effectively taken (since
she was placed on garden leave and given a compromise agreement while others
took over her work). The Tribunal, he submits, gave no consideration to this
aspect of fairness, which was also relevant to compensation.
35.
Ms McCann submits that the Tribunal did not err in law. She submits
that the decision of the Respondent in effect to close the Desk was a
commercial matter for the Respondent; that given this decision Mr Hollands and
the Claimant were redundant; and that this was not a case like Compair
Maxam, where some employees were to be selected from a large group.
There was, in this case, no requirement to establish objective criteria. The
redundancy was, she submitted, a “role elimination exercise”.
36.
We asked why, if a newly recruited temporary worker in the CPE area could learn and take over her work, the Claimant, a long-standing employee, could not
learn and take over the work done by the newly recruited temporary worker. Ms
McCann pointed to findings that the some members of the Respondent’s management
did not consider the Claimant suitable to do the CPE work; she said that it may
have been a question of “people skills”, although there is no finding to this
effect in the Tribunal’s reasons.
37.
Our conclusions on this part of the case are as follows.
38.
Again, although the Tribunal found that the dismissal was in any event
unfair by operation of section 98A(1), it remained important to consider
whether the Respondent acted reasonably in selecting the Claimant for
redundancy. Again, it was relevant to compensation.
39.
The Tribunal, while it has made some findings of fact relevant to this
issue, has not directly addressed it at any point in its reasons. While we see
the force of Ms McCann’s argument that the Respondent may have been entitled to
treat the Desk as a separate entity from the rest of CPE, we do not think we
are in a position to say on the basis of such findings of fact as the Tribunal
has made that only one conclusion is possible on this question. We think in
particular that some consideration and reasoning is required on the question
whether the Respondent acted reasonably in cross-training others to take over work
done by the Claimant rather than cross-training her to do other related work –
in other words, considering others in CPE for redundancy - in particular a
newly recruited temporary worker - instead of her. This is not a case where it
is possible for us to say, on the findings made by the Tribunal, that there was
a distinct “pool” of two or one, such that it was reasonable to consider only
the employees on the Desk in isolation. It is a matter for the Tribunal to
consider. The issue was directly raised in submissions to the Tribunal. It
has not been dealt with. The Tribunal’s findings on this issue are important
because they may impact on compensation.
The application for permission to amend
40.
Step 2 of the SDDP provided as follows:
“Step 2: meeting
2.(1) The meeting must take place before action is taken, except
in the case where the disciplinary action consists of suspension.
(2) The meeting must not take place unless –
(a) the employer has informed the
employee what the basis was for including in the statement under paragraph 1(1)
the ground or grounds given in it, and
(b) the employee has had a reasonable
opportunity to consider his response to that information.
(3) The employee must take all reasonable steps to attend the
meeting.
(4) After the meeting, the employer must inform the employee of
his decision and notify him of the right to appeal against the decision if he
is not satisfied with it.”
41.
Mr Sykes seeks to argue that the Tribunal, in addition to holding that
the Respondent failed to comply with step 2 of the SDDP by holding a meeting,
ought to have held that the Respondent also failed to comply with it by failing
to inform the Claimant of the basis upon which it was making her redundant and
to give her a reasonable opportunity to consider that information. He suggests
that the Tribunal, having made this additional finding, would then be required
to reconsider an uplift which it made to her award under section 31 of the Employment
Act 2002.
42.
His first argument is that he does not require leave to amend the Notice
of Appeal because this is a point which the Appeal Tribunal is bound to take.
He relies upon Venniri v Autodex Ltd in which the Appeal Tribunal
held that section 98A(1), while it was in force, was part of the essential
fabric of unfair dismissal law, which the Tribunal should have in mind as an
issue. Therefore, he submits, the Appeal Tribunal should also consider the
matter, even it is not raised as an issue by a Notice of Appeal. We reject
this submission. The role of the Appeal Tribunal is to consider questions of
law. It is a requirement of the Appeal Tribunal’s Rules that parties identify
the grounds of appeal in a Notice of Appeal. Permission to amend is required
to take a point not identified in the grounds of appeal.
43.
Alternatively he argues that he ought to be granted permission to
amend. The Registrar refused permission; but an appeal to us against the
Registrar’s decision is a re-hearing, and we have considered afresh whether to
grant permission to amend.
44.
Mr Sykes argues that it would be just to allow an amendment. He argues
that the point is a short one, readily ascertainable from the Tribunal’s own
findings in paragraphs 88 to 89 of its reasons; that the Appeal Tribunal should
have regard to it, bearing in mind the principle in Venniri; that
any delay is excusable and has caused no prejudice; and that it would be in
accordance with the overriding objective applicable to the Appeal Tribunal and
in accordance with guidance in Khudados v Leggate [2005] ICR 1013
at para 86.
45.
He explained to us that he had first put the point into a proposed
amended Notice of Appeal early in 2010. At a hearing before Slade J in October
he had withdrawn the point when he was successful in other arguments. He did
not renew the matter before her, expecting that he would be unsuccessful in
doing so. However, in preparing for today’s hearing he thought it right and
just to apply again for leave to amend.
46.
Ms McCann submits that the point is in effect a new point, not argued
below; that any application for permission to amend should have been made far
sooner; that Mr Sykes’ explanation is not an acceptable one; that the
opportunity to seek a Burns/Barke remission to the Tribunal has
been lost; that there has been prejudice to the Respondent, especially in the
requirement of last minute work on the issue; and that it is not in the public
interest for late points to be introduced in this way.
47.
Further she submits that the point lacks merit. She points out that the
Tribunal was well aware of the requirements of step 2, since it reached a
decision on step 2 in favour of the Claimant. She submits that the Tribunal’s
findings show that the requirements of step 2(a) were in fact met by what the
Claimant was told orally on 1 August. The law does not require that step 2(a)
be complied with after step 1. She took us to Alexander v Bridgen
Enterprises [2006] ICR 1277 at paras 39, 41; YMCA v Stewart [2007] IRLR 185 at para 11; and Homeserve Emergency Services v Dixon [2007]
UKEAT/0127/07 at para 15.
48.
We have had regard to the overriding objective applicable to the Appeal
Tribunal and to the guidance in Khudados v Leggate. We refuse
permission to amend. Our reasons are as follows.
49.
Firstly, the application should have been made – if it was to be made at
all – far earlier. It is not an acceptable to withdraw a point and then
re-introduce it many months later, immediately before the final hearing. If it
was sought to re-introduce a point which was withdrawn the application should
have been made speedily, and if practicable to the Judge of the Appeal Tribunal
before whom the point was withdrawn.
50.
Secondly, the application is not a hard-edged point of law dependent
only on paragraphs 88 to 89 of the Tribunal’s reasons, as Mr Sykes thought.
Ms McCann correctly submits that in principle what the Claimant was told on 1
August may be a sufficient basis for the purpose of step 2(a); and if it was,
then it was conveyed to the Claimant in ample time for the step 2 hearing.
51.
Thirdly, this late application to amend has carried with it many of the
difficulties attended by such applications: the extending of time for the
appeal hearing; the late provision of an additional skeleton argument; and the
late addition of authorities on both sides. Indeed it was Ms McCann who
brought relevant authorities on the question of step 2(a).
52.
Fourthly, we consider that there is little merit in Mr Sykes substantive
argument. The Tribunal was indeed well aware of the requirements of step 2,
since it reached a decision on step 2 in favour of the Claimant. We think it
very likely that the Tribunal considered what the Claimant was told on 1 August
to suffice for compliance with step 2(a); and we think that this point, if made
in good time, might well have been dealt with or at least assisted by a Burns
Barke reference to the Tribunal.
53.
We have considered all the factors set out in Khudados v Leggate;
these are our principal reasons for concluding that the balance comes down
against the grant of permission to amend.
Conclusions
54.
The appeal against the Registrar’s order is dismissed. The substantive
appeal is allowed and the matter remitted to the Tribunal to consider afresh
the two questions which we have identified and to consider compensation afresh
in the light of its conclusions.
55.
We invited submissions from Mr Sykes and Ms McCann on the question
whether remission should be to the same or to a different Tribunal. Ms McCann
submitted that remission should be to the same Tribunal. Mr Sykes was inclined
to agree on grounds of cost and convenience, so long as the existing Tribunal
could be reconvened without delay. We have ourselves considered the criteria
in Sinclair Roche & Temperley v Heard [2004] IRLR 763. The
Tribunal for the most part resolved satisfactorily the issues between the
parties. We are confident in the professionalism of the Tribunal to reconsider
the issues which we have identified and then to re-consider the question of
compensation, applying the guidance in Software 2000 v Andrews,
and keeping in mind the range of options set out in that case.
