EMPLOYMENT APPEAL TRIBUNAL
FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8JX
At the Tribunal
Before
MR P GAMMON MBE
MS G MILLS CBE
CONNECT PERSONNEL LTD APPELLANT
Transcript of Proceedings
JUDGMENT
APPEARANCES
(Representative) Peninsula Business Services Ltd The Peninsula 2 Cheetham Hill Road Manchester M4 4FB |
|
(of Counsel) (Appearing under the Free Representation Unit) |
SUMMARY
PRACTICE AND PROCEDURE – Amendment
Whether point sufficiently raised by Claimant before Employment Tribunal; see Chapman v Simon. On the particular facts of this case it was; Respondent had ample opportunity to deal with it. ET Judgment upheld on Respondent’s appeal.
HIS HONOUR JUDGE PETER CLARK
Introduction
1. This case has been proceeding in the London (South) Employment Tribunal. The parties, as we shall describe them, are Mrs Domanska, Claimant, and Connect Personnel Limited, Respondent. We have before us for full hearing an appeal by the Respondent raising a short point on the well‑known principle of natural justice to be found in the Court of Appeal case of Chapman v Simon [1994] IRLR 124, articulated by Peter Gibson LJ at paragraph 44, namely that the tribunal should confine itself to the issues raised by the claimant in her form ET1, subject to any amendment being allowed.
Factual background
8. Was that the case advanced by the Claimant? At paragraphs 45 and 46 the Tribunal say this:
“45. In submissions the Respondent’s Representative queried whether the Claimant’s complaint was expressed as a complaint about the fact the terms of engagement were terminated because of pregnancy. The view that we have come to is that the Claimant’s case on the claim form makes clear that her case is that she was an employee, that she was dismissed by the Respondent and that the reason for this was pregnancy. The Respondent on the other hand, in their ET3, replied saying that she was a temporary worker, that although an assignment was ended by them it was the Claimant that ended the temporary worker relationship by requesting a P45. In the ET3 the Respondent makes the distinction between the assignment working for them and the relationship generally, and makes their case that they consider that neither of those were ended due to pregnancy.
46. We find then that the case before us to be resolved, from the pleadings, is: what was the Claimant’s status in relation to the Respondent, how did it end and by whom, and was it because of pregnancy? We have found that the Claimant was both a temporary worker, having signed the terms of engagement, and that she was an employee for the time she worked directly with the Respondent. We found the Respondent ended both relationships. We found that the employment was ended because the person on maternity leave that the Claimant was covering returned. The temporary worker arrangement was also ended by the Respondent, and we have not had a good explanation for this in circumstances where on the primary facts we can draw an inference it was on grounds of pregnancy. We therefore considered that the decision that we have come to is expressly responding to the issues that come straight out of the parties’ pleadings.”
10. Mr Rees submits that it was not open to the Tribunal to make the relevant finding without an amendment, with permission, to the claim. We disagree. Mr Watson has referred us to the helpful passage in the Judgment of Langstaff J in Ministry of Defence v Hay [2008] ICR 1247 at paragraph 43. We shall not set it out in extenso but critically in considering the rule in Chapman v Simon, the now President in that case, deals with the possibility of amendment and then says this:
“43. […] The purpose of a hearing, after all, is to allow the parties to resolve those matters which are truly in dispute between them, at least where this can be done without unfair prejudice to the position of either. Thus if a Respondent justifiably complained that there was a lack of clarity in a Claimant’s originating application, then (depending of course, on the circumstances) an adjournment might well resolve any prejudice. The focus will be on whether a fair trial of the issues (as expanded) can take place.”