United Kingdom Employment Appeal Tribunal
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URL: http://www.bailii.org/uk/cases/UKEAT/2012/0142_12_3010.html
Cite as: [2012] UKEAT 0142_12_3010, [2012] UKEAT 142_12_3010
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UKEAT/0390/12/LA
EMPLOYMENT APPEAL TRIBUNAL
FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8JX
At the Tribunal
Before
MR D SMITH
DUNELM (SOFT FURNISHINGS) LTD APPELLANT
Transcript of Proceedings
JUDGMENT
APPEARANCES
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(One of Her Majesty’s Counsel) Instructed by: Cummins Solicitors The Bake House Narborough Wood Park Desford Road Leicester Leicestershire LE19 4XT |
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(of Counsel) Free Representation Unit |
SUMMARY
PRACTICE AND PROCEDURE
Amendment
Bias, misconduct and procedural irregularity
In the claim for unfair dismissal and wrongful dismissal, parties proceeded on common basis that dismissal was on 17 February 2011. In reserved Judgment, the Employment Tribunal finds that dismissal was on 1 February 2011 (16 days earlier). Neither party was given notice or opportunity to make representations. Issue of importance because (1) if there was a dismissal on 1 February 2011 it was on the basis of a fundamental breach by the employer to which the employees had made no response and (2) it pre-dated consultation with occurred between 1 February 2011 and 17 February 2011. Breach of Natural Justice.
In the same case, the Claimant’s sought 1 month’s pay in lieu of notice. In reserved Judgment, Employment Tribunal awarded 3 months on basis a further 2 months was warranted by an implied term that if dismissal was to be for redundancy (as it was) there should be at least 2 months consultation. That point not argued. Breach of Natural Justice. Claims remitted to a fresh Tribunal.
Following success on
liability, ET fixes a remedy hearing. At hearing the Claimant’s make oral
application for permission to add new head of liability (non-payment of mileage
allowances). Those claims would be almost one year out of time. ET allows
amendments and immediately proceeds to award significant sums claimed,
directing itself that any prejudice to the Respondent can be addressed by an
application for review. Appeal Allowed. Misdirection as to fact and law in the
determination of the applications. Applications remitted to fresh ET.
MR RECORDER LUBA QC
Introduction
1. These are appeals brought by an employer who was the Respondent to claims made in the Employment Tribunal by two former employees, Mrs Baker and Mrs Wood. The first appeal is brought against the Judgment of the Employment Tribunal sitting at Cardiff (Employment Judge Howden‑Evans and lay members) which was sent to the parties on 28 November 2011. The Tribunal’s Judgment was to the effect that the first Claimant had been unfairly and wrongfully dismissed and that the second Claimant had been wrongfully dismissed. The second appeal is from a further Judgment of the same Employment Tribunal sent to the parties on 18 April 2012 and which was concerned with the assessment of the remedy flowing from its first Judgment. By the remedies Judgment the Claimants were awarded, amongst other items, certain sums in respect of breach of contract referable to car mileage allowances. The employer appeals from the Tribunal’s Judgment in so far as it awarded those remedies.
The facts
2. As might be expected, the facts are fully set out by the Employment Tribunal in its two Judgments, on liability and remedy respectively. It is only necessary to briefly summarise those facts. The Claimants were both ‘at‑home consultants’ working for the employer. Their duties required them to visit customers at their homes in certain geographic patches for which they were respectively responsible. On those home visits their functions were to take orders from the customers for the employer’s products. Their income was, at least initially, based on the commission earned from those orders. There were some 30 to 40 at‑home consultants similarly deployed across different geographical areas of the country.
3. In early 2011 the employer decided that it would no longer operate the at‑home service. On 1 February 2011 it ordered its stores to stop taking bookings for customers to be visited by the at‑home consultants. On the same day all the at‑home consultants were told by email to cancel all their extant appointments with customers. The following day – that is to say, 2 February 2011 – all the at‑home consultants were informed that they were at risk of redundancy. On 7 February 2011 a meeting was held between the employer and all the at‑home consultants. They were told that they all faced redundancy. Thereafter, individual consultation meetings were arranged. In the event, only three at‑home consultants remained in the employment of the employer at the end of the process, and those three were based in a single region. The Tribunal record that a further three employees were retained, but they were fitters.
4. The first Claimant was given a letter dated 17 February 2011 indicating that her employment was terminated with immediate effect, and that itself followed a meeting on the same date. The second Claimant received the same treatment. Their appeals against dismissal were rejected by the employer in March 2011. Each of the employees received one month’s pay in lieu of notice. The first Claimant, who had been an at‑home consultant since December 2009, brought a claim for unfair dismissal and also a claim for wrongful dismissal. The second Claimant, who had insufficient length of service for an unfair dismissal claim, only claimed wrongful dismissal. Both also made particularised claims for unpaid monies and expenses.
The Employment Tribunal’s Judgment
5. At the liability hearing, the primary position taken for the employer in response to the claims was that the Claimants had not been employed as at‑home consultants but rather that they had been self‑employed. The Employment Tribunal, for the reasons it gave, rejected that answer. There is no appeal brought by the employer from the finding of the Employment Tribunal that both of the Claimants were employees.
6. Having made that finding in respect of the primary issue as between the parties, the structure of the Employment Tribunal’s liability Judgment was as follows. First, it identified at paragraphs 18‑20 the issues in dispute before it. It found that the employees, as they had been held by the Tribunal to be, had been dismissed on 1 February 2011 (see paragraphs 62 and 63). The Tribunal give at paragraph 64 of their Judgment the reason for dismissal, being the reason of ‘redundancy’. The Tribunal hold in respect of the first Claimant that there was a lack of consultation such that the dismissal was unfair. The Employment Tribunal then entertained and considered the employer’s contention that there should be a Polkey v A E Dayton Services Ltd [1987] IRLR 503 deduction. It found that compensation for unfair dismissal should be assessed on a basis that did not reflect the Polkey deduction sought by the employer (see paragraph 68). The Tribunal found overall that both Claimants had been wrongfully dismissed, not least because they had, in the Tribunal’s Judgment, been dismissed without any notice on 1 February 2011. In the result, their Judgment, as recorded on the first page of their written reasons, was unanimous, and it was that:
“(1) The 1st Claimant was unfairly dismissed.
(2) The 1st Claimant is entitled to 3 months damages for breach of contract as calculated in accordance with paragraph 68 below.
(3) The 2nd Claimant is entitled to 3 months’ damages for breach of contract as calculated in accordance with paragraph 68 below.”
7. The Tribunal’s reasons for their Judgment on liability were given in writing on 28 November 2011. Thereafter, on 28 March 2012, the Employment Tribunal conducted a remedies hearing. Their Judgment at the conclusion of that hearing was that the first Claimant would be awarded a sum of over £33,000 in respect of her unfair dismissal claim and the sum of £6,789.60 in respect of her breach of contract claim. The second Claimant was awarded £4,667.63 in respect of her breach of contract claim alone. The Employment Tribunal had permitted the Claimants to amend their claim at the remedies hearing to include a claim for unpaid car mileage allowances. They form a significant part of the compensation for breach of contract that was awarded. The reasons for the Employment Tribunal acceding to that application, and otherwise assessing the compensation payable, were sent to the parties on 17 April 2012.
The appeals
8. As we have indicated at the outset of this Judgment, the employer appeals the orders of the Employment Tribunal made at both the liability and remedies hearings. As we shall shortly explain, one of the grounds of appeal pursued in the Notices of Appeal was abandoned by Mr Laddie QC, appearing for the employer, in his opening. We have only therefore been concerned with the four remaining grounds of appeal, each of which we shall now consider in turn.
Ground 1: The date of dismissal
9. The Employment Tribunal found that the Claimants had been dismissed on 1 February 2011. Their Judgment relating to that finding is given in paragraphs 62 and 63 of their written reasons:
“62. The Tribunal finds that by entering into contract with 1st Claimant at the end of January 2011, in full knowledge that they intended to make all South Wales consultants redundant imminently and therefore had no intention of actually employing the 1st Claimant for any time at all, the Respondent did breach the implied duty of mutual trust and confidence. The 1st Claimant quite rightly felt she had been duped, particularly as the correspondence she was receiving in both matters was being sent by the same person, Wayne Hall.
63. The Respondent committed a further fundamental breach of contract on 1st Feb 2011 by ordering the Claimants’ stores to stop taking bookings for At Home Consultant services. This effectively brought the Claimants’ employment to an end, before they had any consultation on the proposals for redundancies. The Tribunal finds that the Claimants were actually dismissed by the Respondent on 1st February as all their work and the greater part of their salary depended on these orders.”
10. The employer’s first ground of appeal has two elements. Firstly, that the finding of 1 February 2011 as the date of dismissal was a finding made by a process that was contrary to natural justice and/or fairness. Secondly, that as a matter of law it was not open to the Tribunal to find that 1 February 2011 was the date of dismissal. It is plain that if the employer succeeds on the first limb of this ground of appeal, that is determinative for present purposes. In those circumstances, we heard Mr Laddie in support of the first limb of this ground and we heard Mr Park, of the Free Representation Unit, appearing for the employees, in response.
11. The short point made by the employer is that there had been no issue between the parties relating to the date of the dismissal. Mr Laddie submitted that, in entering into the question of what the date of dismissal was, the Tribunal had embarked on “a frolic of its own”. His submission was that there had been no issue raised between the parties as to the date of dismissal and that the Tribunal ought not to have embarked upon a consideration of the date without, as a matter of fairness, giving both parties the opportunity to address it.
12. Mr Laddie reminded us of how matters stood before the Employment Tribunal in relation to the question of the date of dismissal. He took us to both of the applications that the Claimants had made to the Tribunal in the standard forms ET1. Both Claimants had identified at paragraph 3 of the ET1 that the date on which their employment had ceased was 17 February 2011. Moreover, in the narrative that accompanies the particulars on the form ET1 – that is to say, under paragraph 5.2 – each of the employees had written as follows: “I was employed by the Respondent from [the first Claimant, ‘02.12.09’, the second Claimant, ‘01.03.2010’] to 17.02.11”. Further entries on the forms manifest the employees’ case as being that their employment continued to 17 February 2011. Not least, for example, in the ET1 of the first Claimant under heading 6, the following appears as the date up to which outstanding holiday pay should be calculated “17 February 2011”. The claim is for notice pay “…from 17.2.11”. We were reminded that by their form ET3 the employers had not put in issue the dates put forward by the employees.
13. Moreover, we were shown the witness statements that were before the Employment Tribunal prior to the liability hearing. The thrust of those witness statements was to the effect that the employment of the employees had continued until the close of the consultation process, which on any view took place on 17 February 2011, if one works by reference to the documents. That is not inconsistent with the witness statement of the only witness for the employer to attend the liability hearing. We were reminded that the Tribunal had before them, as we have before us, the letters to the respective employees dated 17 February 2011, which, as a matter of first impression certainly, are letters of dismissal from employment on that date.
14. Those, Mr Laddie submitted, were the relevant documents before the Tribunal, and they “spoke with one voice” as intimating that there was no issue as to the date of termination of employment. Moreover, in the Tribunal’s own recital of the issues that fell to them for determination at paragraphs 18‑20 of their written reasons, there is no reference to the date of dismissal being in issue. Neither of the representatives before us has suggested that any argument had been addressed to the Tribunal to the effect that they should treat the date of dismissal as being 1 February 2011, and we were shown no representations in writing that would have put that matter in play. It therefore appears to be the case that the Tribunal decided, for itself, to consider the question of the date of dismissal and to find by virtue of its own reasoning that the relevant date was 1 February 2011.
15. Mr Laddie’s simple submission was that this was a breach of the ordinary principles of natural justice, the basic principle being that the parties to litigation should know what issues are before the Tribunal for determination and most particularly, as in this case, a Respondent should know what issues it has to meet from the employees’ claims. Mr Laddie relied in particular on the familiar authority of Chapman v Simon [1994] IRLR 124 in support of the proposition that the Tribunal ought not to have embarked upon consideration of a claim that an employee had not made. This case is somewhat different from Chapman in that here the Tribunal was already seized of a claim for unfair dismissal. Nevertheless, as the earlier passages of this Judgment have indicated, nothing in the materials before the Tribunal suggested there was any dispute as to the date of dismissal upon which the assessment of its fairness or unfairness would turn. In those circumstances, Mr Laddie submitted, it was quite unfair and contrary to the basic rules of natural justice, for the Tribunal to embark upon the determination of the date of dismissal without, at the very least, intimating to the parties that it was minded to do so and giving them an opportunity to respond.
16. Mr Park, for the employees, urged upon us that Chapman was entirely distinguishable. This was, he submitted, a case of unfair dismissal in which a necessary point for determination was the dismissal date. As he put it to us: “A dismissal date is a necessary foundation for an unfair dismissal claim”. We agree with that submission. That, in our judgment, made it even more vital that if the Tribunal was departing from the common starting point taken by both parties, it should give both parties an opportunity to address it and deal with the point.
17. As though to underscore the general thrust of his submission, Mr Laddie drew our attention to the fact that the consequence of the Tribunal determining the date as being 1 February 2011 rather than 17 February 2011, was that the claims were themselves out of time; that is, by reference to the dates upon which the forms ET1 were presented. The Tribunal does not appear to have grasped that point at all. If, as appears to us to be the case, that is correct, then the claims would fall in limine if the Tribunal was right as to the date of dismissal, because they were out of time. Mr Park’s rejoinder is that given the factual circumstances of the case the Tribunal would very likely have determined that an extension of time should be allowed on the basis that it was not reasonably practicable for the claims to have been brought earlier.
18. The difficulty with that proposition is that the burden of securing an extension of time is on the party seeking the extension, and there was no material before the Tribunal directed to the question of an extension of time. In those circumstances, we accept the thrust of the submission made by Mr Laddie. It seems to us that this is a case in which the Tribunal behaved improperly by undertaking the examination of an issue that neither party had raised and on which neither party had been given an opportunity to make observations or representations.
19. Mr Park made a fallback submission that if we were inclined to take the view that as a matter of natural justice the point ought to have been argued, nevertheless the Tribunal’s Judgment should not be disturbed if they had come to the only conclusion available to them as a matter of law on the findings of fact that they had made. For that proposition, he referred us to two authorities: the decisions of the Court of Appeal in Judge v Crown Leisure Ltd [2005] IRLR 823 and Bache v Essex County Council [2002] All ER 847. Mr Park submitted that (1) the Tribunal’s conclusion that the date of dismissal was 1 February 2011 was an inevitable conclusion on the facts of this case and (2) the fact that no opportunity for representations from either party arose ought not to disturb the ultimate conclusion.
20. We have no hesitation in rejecting Mr Park’s submission. As a matter of logic, Mr Park’s case appeared to be that no matter how grave a departure from natural justice and fairness an Employment Tribunal embarks upon, provided it gets the legal answer right at the end of the day its decision should be upheld. We do not accept that that is the state of the law, and nothing in the two decisions of the Court of Appeal put before us by Mr Park suggests that it is. In any event, Mr Park’s answer to this first part of the first ground of appeal is contingent upon the proposition that, in the events that happened, as a matter of law the employees had to have been dismissed on 1 February 2011 in the circumstances of this case. However, as the second limb of Mr Laddie’s ground of appeal indicates, there is a well‑arguable issue as to whether or not the circumstances of the case were such that as a matter of law there was a dismissal on 1 February 2011. We have not invited either party to address us on the substantive law element of ground 1. It seems to us that it is sufficient to identify that as an arguable point and thus to underscore our primary holding, which is that it was unfair of this Tribunal to proceed as it did i.e. to determine the issue of a date of dismissal without notice to the parties and an opportunity for them each to address the Tribunal.
Ground 2: The Polkey deduction
21. The second ground of appeal before us was that the Tribunal had misdirected itself in failing to make a Polkey deduction in respect of the first Claimant’s claim for unfair dismissal. The employer had advanced the familiar contention that even if the redundancy process had been conducted with conspicuous fairness, it was inevitable that the first Claimant would have been dismissed. Accordingly, as the dismissal would have very likely occurred in any event, there should, on the employer’s case, have been a 100 per cent deduction in the compensation otherwise payable. The Employment Tribunal rejected that contention in the terms set out in paragraph 68 of their Judgment:
“The Tribunal considered whether the 1st Claimant would have been dismissed even if a fair procedure had been adopted. The Tribunal finds that if a fair procedure had been adopted, with the Respondent actively engaging in proper consultation, the Claimant would have been appointed to one of the three Midlands Consultant posts. As the Respondent’s top performing salesperson, such an outstanding employee that even during the Hearing the Respondent’s solicitor repeatedly stated the Respondent would re‑employ her even now, albeit on different payment terms. The 1st Claimant submitted the three consultants must be on a similar pay structure to her contract of January 2011. Whilst the Respondent was not able to prove the terms of these contracts, the Tribunal has noted the evidence of the difficulties the At Home service was experiencing and is persuaded that, on a balance of probabilities, any Consultants retained following the redundancies in February 2011, would be earning at a lower level of income. Therefore the Tribunal finds that the loss of income element of the unfair dismissal compensatory award should be calculated using a lower salary figure of £25,000 per annum, as this reflects the lower level of salary At Home consultants are now receiving.”
22. Mr Laddie submitted that we need not embark upon the second ground of appeal if, as in the event has transpired, we were with him on the first ground. However, Mr Park submitted that the date of dismissal point could not affect the underlying question of whether his client had been fairly or unfairly dismissed. Mr Park submitted that the issue of unfair dismissal did not turn on the precise question of whether the dismissal was on 1 February 2011 or 17 February 2011. He invited us, even if we were satisfied that the Tribunal had gone wrong in the respect we have already identified, to nevertheless uphold the unfair dismissal element of the claim. This would necessarily have involved our then entertaining the argument by Mr Laddie on ground 2.
23. We did not need to follow that course. We are not satisfied as to the correctness of Mr Park’s submissions. He took us into three particular passages in the Judgment, which he suggested demonstrated that it was inevitable on the facts of this case that the dismissal would have been found to be unfair even if the Tribunal had directed itself to a dismissal date of 17 February 2011. He took us first to paragraph 39 of the Judgment, in which the Employment Tribunal had found that the employers had already settled upon closing down the at‑home consultancy (AHC) service before it consulted any of the relevant AHCs. He submitted that that point, as a knockout point, would render the dismissal unfair.
24. We accept Mr Laddie’s rejoinder to that submission. Namely, that it is not at all unusual for an employer to settle determinatively on a decision to diminish a particular part of the workforce or a particular type of work before embarking upon a process of consulting with employees about alternative employment.
25. Mr Park then referred to a passage in paragraph 48 of the Employment Tribunal’s Judgment, where he drew attention to a finding that the employer had failed to respond to the employees’ offer to work for free to help to resurrect the at‑home consultancy service. That may well have been a factor that would weigh in the ultimate assessment of whether the dismissal had been fair or unfair, although one must take into account Mr Laddie’s rejoinder to it (that it would be a rather extraordinary circumstance for an employer to accept an employee’s offer to work for free, in particular having regard to the obligation to pay at least minimum wages). What is plain is that the point is not determinative of the question of whether the dismissal was fair or unfair.
26. Thirdly, Mr Park pointed to a passage in paragraph 50 of the Tribunal’s Judgment, where he asserted they had found, as a fact, that the employer had made a false representation to the employee as to the terms on which certain alternative employment might be available. We accept Mr Laddie’s rejoinder to that submission: that paragraph 50 is simply recording the Claimants’ own case on the issue and does not include a finding of fact by the Tribunal.
27. For all those reasons, we reject Mr Park’s contention that the unfair dismissal claim would inevitably have been determined in the Claimants’ favour if the dismissal date issue were handled correctly. In those circumstances we do not need to consider further the question of Polkey and ground 2, because the issue of unfair dismissal will need to be remitted and reconsidered as a whole. As Mr Park acknowledged, the difference between 1 February 2011 and 17 February 2011 was very material to the question of wrongful dismissal, because if the dismissal date was correctly 1 February, there was a wrongful dismissal, and if the correct date was 17 February, there was not a wrongful dismissal. That concession, rightly made, underscores the importance of the Tribunal having determined the issue correctly, with appropriate procedural fairness, as we have already indicated.
Ground 3: The notice period
28. It fell to the Employment Tribunal to determine the period for which the employees were entitled to be given notice. There was no dispute that the express terms of the contracts in each case required, or entitled the employees to, one month’s notice. But the Employment Tribunal in fact decided that each of the employees was entitled to three months’ notice. Its reasons for making that finding are contained in paragraph 69 of its Judgment:
“As both Claimants were effectively dismissed on 1 February 2011, by these actions, they were dismissed without statutory notice (s86(1) Employment Rights Act 1996) or contractual notice/PILON as specified in their contracts of employment. Both Claimants succeed with their wrongful dismissal claims and are entitled to damages for wrongful dismissal. Dismissal was wrongful because the contractual notice of 1 month was not given. The contracts of employment are silent on redundancy procedure. The parties must have intended the Respondent to operate a reasonable redundancy procedure in the event of redundancies being necessary. The Tribunal is satisfied that a term to this effect ought to be implied into the contract. The Tribunal is satisfied that a reasonable period within which a reasonable redundancy procedure could be carried out is 2 month. A further 1 month notice would then need to be added to this time.”
29. By his third ground of appeal Mr Laddie challenged this finding of three months’ notice on two footings. First, he argued that this was another instance of the Tribunal departing from the issues that were agreed to be before it and entering onto “a frolic of its own” to determine the notice period. He reminded us that there had been no suggestion in the two claims made on the forms ET1 that the employees were entitled to anything more than one month’s notice. In particular, the first Claimant, Mrs Baker, had expressly claimed “notice pay from 17.02.11 to 17.03.11”. In her witness statement dated 1 October 2011 Mrs Baker had written in paragraph 10 that she was seeking “compensation for the following […] 1 month’s notice claim”. As Mr Park correctly conceded, there was, as this material indicates, no issue before the Tribunal as to the appropriate length of the notice period. The Tribunal appears to have taken the point for itself. Once again, neither of the parties was alerted to the fact that the Tribunal was going to develop this issue, and neither was given the opportunity to make representations. Of course, the greater prejudice was suffered by the Respondent to the claim because it had no hint that the Tribunal was minded to enlarge the notice period by an extra 200 per cent.
30. It seems to us that this, again, is an instance of the Tribunal departing from the basic rules of natural justice and fairness. The parties are entitled to know what the issues are that the Tribunal is minded to determine and what, therefore, the issues are upon which they should be addressed (and to which representations and evidence should be directed). In our judgment, the decision by the Tribunal to embark upon this question of the length of the notice period was not handled in an appropriate or correct manner.
31. Once again, Mr Park submits that this is an instance of the Tribunal having reached the only conclusion available on the facts. He therefore asserts that the departure from the basic rules of natural justice may be overlooked because the conclusion reached was the inevitable conclusion on the facts of the case. The difficulty with that proposition is to determine the precise legal basis upon which the Tribunal acted as it did. Mr Park, in the course of his oral submissions was driven, in response to questions put to him by this Appeal Tribunal, to accept that the effect of the Tribunal’s Judgment was to imply a term for additional or supra‑contractual notice in classes of case of which this instant case was representative. He could advance no judicial authority in support of that proposition. As the materials put before us by Mr Laddie in his skeleton argument indicate, this would have been a matter of fierce contestation on the applicability of the relevant law had the Tribunal been properly considering the substantive question.
32. We are not satisfied that this is a matter that can be determined as simply as Mr Park suggests. There is a real issue of law here on which the parties were entitled to deploy relevant argument, having been given appropriate notice, if this issue was to be pursued. For those reasons, we allow the appeal also on ground 3.
Ground 4: The mileage expenses
33. The Judgment of the Tribunal on liability was addressed to the claims as presented in the forms ET1. The Tribunal then scheduled, as we have already indicated, a remedies hearing. The parties prepared for the remedies hearing, and in particular the two employees prepared short statements dealing with their losses and produced Schedules of Loss. They then attended at the remedies hearing unrepresented, as they had been unrepresented before the Tribunal when determining liability, and at the outset of the hearing applied for permission to amend their originating applications. Both of the employees invited the Employment Tribunal (1) to accept an amendment, to introduce a new head of contractual liability, that is to say a liability to pay mileage allowances, and (2) to permit the Claimants to seek an order from the Tribunal compensating them for non‑payment of those mileage allowances.
34. The Employment Tribunal acceded to those applications. Neither application was made in writing. The applications before the Tribunal to give permission to amend the originating application were, unusually, made in the absence of any intonation as to the exact terms of the amendment sought. That may be an indulgence permissible in the case of unrepresented Claimants, and it is not determinative.
35. The Tribunal then set out at paragraphs 6‑16 of their Judgment on remedy their reasoning on the question of whether permission to amend should be granted. It is plain that they were seized of the fact that the application was to introduce wholly new claims that were not made in the originating applications and, further, that any claims they would permit by way of amendment were significantly out of time. On the Tribunal’s own finding that the date of dismissal was 1 February 2011, any such claims for breach of obligations to make payment should have been presented by 30 April 2011, and in fact they were being made by way of application to amend orally to the Employment Tribunal almost a year later, on 20 March 2012.
36. There is no dispute as to the relevant legal principles. These were relatively recently restated by Underhill J in a Judgment handed down on 6 June 2007 in the case of Transport & General Workers Union v Safeway Stores Ltd UKEAT/0092/07. By his Judgment in that case Underhill J indicated that the well‑established principles, taken not least from the cases of Cocking v Sandhurst Stationers Ltd [1974] ICR 650 and Selkent Bus Co Ltd v Moore [1996] ICR 586, were as applicable in the case of an application to introduce a new claim out of time as they were generally. It is only necessary to refer, once again, to the familiar passage in the Judgment of Sir John Donaldson given in the National Industrial Relations Court in the case of Cocking, in which he said that a Tribunal considering whether to allow an amendment should:
“[…] have regard to all the circumstances of the case [and] consider any injustice or hardship which may be caused to the parties […] if the proposed amendment were allowed or, as the case may be, refused.”
37. As Mr Laddie accepted, the Tribunal appear to have broadly directed themselves in accordance with those legal principles (see, for example, their reference to the decision in Selkent at paragraph 9 of their written reasons), but, submitted Mr Laddie, notwithstanding a correct direction as to the law, the relevant discretion had not been properly exercised and was vitiated by misdirections that the Tribunal made to itself as to both law and fact. In paragraphs 6‑15 of their written reasons the Tribunal introduce and outline the various matters that they took into account on each side in determining whether or not to accede to the amendment. Mr Laddie submitted that they were shot-through with misdirection or error.
38. It is not necessary to rehearse his submissions as to each of the various elements of the Tribunal’s reasoning or his attacks upon them. It is sufficient, in our judgment, simply to illustrate the thrust of his submissions. For example, the Tribunal directed themselves that the Claimants had always been unrepresented. That may be right in the sense that the Claimants had attended at the various Tribunal hearings without professional representation. However, they had, at least at the stage of preparing their claims, had the benefit of legal advice. Indeed, the original ET1 presented by Mrs Baker had been settled by her solicitor and was amended by her to correct certain errors in it. This cannot be treated, as the Tribunal plainly were treating it, as a case of unrepresented litigants without access to professional advice.
39. Secondly, the Tribunal appear to have directed themselves that an element that weighed in the balance was the fact that there was no box on the form ET1 in which an outstanding mileage expenses claim could succinctly be stated. However, as Mr Laddie pointed out, that did not prevent the employees setting out with great particularisation, down to specific pounds and pence, the precise nature of the claims they were making and the amounts. The Tribunal, by making reference to the absence of a box, appear to have overlooked the fact that the absence of a box had caused no prejudice to the employees.
40. But, there were, submitted Mr Laddie, more fundamental errors in the Tribunal’s approach. Firstly, he drew attention to paragraph 11, in which the Tribunal appear to have equated the claim for mileage allowances with the claim for notice pay. That was unjustified. The claim for notice pay was a prospective claim from the termination of employment; the unpaid mileage allowances were retrospective claims. More importantly still, the Tribunal directed itself at paragraph 12 of its reasoning that it was a relevant factor in determining whether to accede to the application that the Claimants could have brought the identical claim in the County Court. The Tribunal directed itself that it was expedient in the interests of justice for the Employment Tribunal to take jurisdiction in the matter by granting an extension of time. However, as Mr Laddie correctly submitted, the rule in Henderson v Henderson [1843] 3 Hare 100 prevented the Tribunal from taking that approach. It would have been an abuse of process for the Claimants to proceed in the County Court to make a claim in respect of a case that was already before the Employment Tribunal and in respect of which the claim for unpaid mileage allowances could have been, but was not, pursued.
41. Of equal significance is the Tribunal’s handling of the question of the claims being made so considerably out of time. As to that matter, the Tribunal say this in paragraph 13 of their Judgment:
“Whilst this new claim would have been out of time the Tribunal is satisfied that in these circumstances an Employment Judge would have decided that it was not reasonably practicable for the claimants to present their claims in time and that they have been presented within a reasonable time.”
42. We accept Mr Laddie’s submission that that finding is devoid of any reasoning. First of all, it appears to be attributing the decision‑making function to an Employment Judge, whereas the decision in all the circumstances was one for this Employment Tribunal. Moreover, nothing in the reasoning of the Tribunal explains why it was not reasonably practicable for the claims to be presented earlier or why only a reasonable time had elapsed between the original making of the claims and the presentation of the new amendments.
43. As though to underscore his critique of the Tribunal’s reasoning, Mr Laddie then took us into the rather confusing evidence that was before the Tribunal as to the precise nature of the money claims made by the two Claimants in respect of the unpaid mileage allowances. To say that the material was uncertain or confusing would be to put it at its lowest.
44. Mr Park submitted that there had been no error in the Tribunal’s assessment of the issues on either side as to whether there should be an amendment and that the Tribunal were right to find that the employer had had sufficient notice so as to be able to expect that the claims in respect of mileage allowances would be brought forward. Not least by reference to a statement dated 23 February 2012 in which the Claimants had jointly intimated such a claim. However, he added in the course of his oral submissions that the claim in respect of these allowances had been expressly not pursued at the time that the ET1 was submitted on the basis of the legal advice then being received by the Claimants.
45. We will not immediately proceed to our determination of this point, because it is necessary to refer to how the Tribunal dealt with the question of whether the Respondent would have a fair opportunity to meet the mileage claim made if it was adduced substantively only at the remedies hearing. At paragraph 15 of the Tribunal’s reasoning, the Tribunal appears to accept that there would be a degree of prejudice to the Respondent in these new claims being proceeded with immediately but that it was a sufficient safeguard for the Respondent to have the opportunity to apply later to review the Judgment if the interests of justice required it. In our judgment, that was not the right basis upon which to proceed. If there was a real issue as to the prejudice to the Respondent, in being unable to respond to the fresh claims, that should not have been dealt with in that way, but rather an adjournment ought to have been granted.
46. But we return to the central question on ground 4 as to whether the Tribunal appropriately applied the relevant principles to the determination of the question of whether to extend time. We are satisfied, essentially for the reasons given in Mr Laddie’s submissions, that the exercise of the discretion by the Tribunal on this occasion was infused by error as to fact and law in exactly the manner he has articulated. It seems to us that, particularly in relation to the Henderson v Henderson point, and the absence of reasons as to reasonable practicability and reasonable time, that this exercise of discretion cannot stand.
Disposal
47. In the event, therefore, this appeal is allowed in part. We say “in part” because Mr Laddie expressly withdrew at the outset of the appeal the fourth ground of appeal, which was in relation to the rate of pay for the purposes of the wrongful dismissal claim. As he indicated to us, the employers now acknowledge that that point of law should not and could not be pursued. So, the appeal will be allowed in part. Mr Park does not pursue a cross‑appeal previously advanced, and accordingly we shall dismiss the cross‑appeal.
48. The question is: what should follow? We are satisfied that we should remit for determination by a fresh Tribunal the claims for unfair dismissal and wrongful dismissal. We do not accept Mr Laddie’s submission that the remission should be on the basis that the date of dismissal was 17 February 2011. It will be a matter for the parties as to how they put their case to the fresh Tribunal on the question of the date of dismissal. But it will be recorded, as part of our order, that on the remitted claims the employer concedes that the Claimants were employees at all material times. As we have indicated, we accept Mr Laddie’s submission that the remission should be to a different Tribunal. That Tribunal will consider completely afresh any issues that may be raised by the parties not only as to the correct date of dismissal but also as to the question of any Polkey deduction.
49. That leaves only the question of the claims for mileage allowances. For the reasons we have given, the applications for permission to amend were not appropriately dealt with by the Tribunal to which they were made on 20 March 2012. Those applications will therefore fall for reconsideration by the fresh Tribunal. We intend also in our order to identify by its correct name the Respondent to the claims and the Appellant in this appeal.
50. This is the unanimous Judgment of us all.