Appeal No.	 EAT/1436/96

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 10 March 1997

Before
THE HONOURABLE MR JUSTICE MORISON (P)
MR J A SCOULLER
MR D A C LAMBERT

ASHWORTH HOSPITAL AUTHORITY	APPELLANT

MS H J LIEBLING	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR C  SAMEK
(Of Counsel)	
For the Respondent	MR S GORTON
(Of Counsel)	

		MR JUSTICE MORISON (PRESIDENT):  This is an Interlocutory appeal following a hearing on 16 October 1996 at an Industrial Tribunal held at Liverpool.  Ms Liebling, whom we shall call, if we may, the “employee”, was granted leave to amend her Originating Application which she had presented to an Industrial Tribunal on 29 March 1996.

	In Box 1 of that application the employee, a psychologist with Ashworth Hospital, the Respondents to this appeal, whom we shall call the “employers”, identified the type of complaint she was making as “unfair constructive dismissal”.  The full details of her complaint were set out in Section 10 of her IT1.  In essence the employee said that her employer had suspended her for reasons which did not warrant it; that she was never properly allowed to put her case or clear her name.  She compared her treatment with that of the treatment of a consultant psychiatrist.  Paragraphs 13 and 14 of Box 10 read as follows:
“13	   There seemed to be an amazing difference between the response to concerns I formally raised i.e. in support of patients, and about a consultant psychiatrist, and to those which were raised against me.
14     I feel I have been treated differentially compared to the consultant psychiatrist.  Complaints against him which have been raised have never been properly investigated, neither has he been moved away from Women’s Services.  This differential treatment is contrary to the SHSA (1992) Disciplinary Procedure.”

	As a result of the matters about which she was complaining, she says that she was effectively forced to resign.  She gave notice of resignation on 24 March to expire some time in the third week of April. 

	The evidence which was presented to the Industrial Tribunal showed that on 3 July 1996 the employee’s union wrote to the Industrial Tribunal in these terms:
“I seek the Tribunal’s permission to modify the Originating Application in that I wish the answer to question 1 to state explicitly that a decision is also sought on the issue of sex discrimination.  You will see that I am not raising a new issue as the claim of discrimination is included in paragraph 14 of the applicant’s answer to question 10 but I am advised that it would be helpful for the claim to be explicit in the answer to question 1.  I therefore trust that this modification can be made.”
	Probably before that letter was received by the Respondents, they wrote on 4 July to the Regional Secretary of the Industrial Tribunal, through their solicitors Messrs Reid Minty, saying that:
“We understand you have confirmed to our clients that the 14 days [I interpolate that is for the time to put in their Notice of Appearance] runs from Monday 1 July.  It is clear from the IT1 that we will have to investigate not only all matters in connection with the applicant but in respect of a fellow employee against whom it is suggested that there is a difference of treatment.  We know that the doctor concerned is away on holiday as we spoke to him on an entirely different matter a week ago.  In the circumstances whilst the time for production of the IT3 is by 15 July 1996 we would ask for an extension to the 2 August 1996.  We can tell you that the claim will be resisted.”

	In due time, the employers notified the Industrial Tribunal who had sent them a copy of the letter of 3 July that they did indeed object to the proposed amendment.  They took a number of points.  Firstly, that the Applicant was represented by a very experienced Trade Union.  Secondly, the application form (IT1) mentioned only unfair constructive dismissal and under facts pleaded in Section 10 there was no complaint of sexual discrimination.  Thirdly, the Applicant said in paragraph 16 under Section 10 that she resigned on 25 March.  The request to raise an additional head of claim is beyond the three-month time limit.  Finally, they said that they did not believe that the Applicant is prejudiced in any way, as she has set out a clear complaint which attaches to the proper heading of “unfair constructive dismissal”.  They then referred to the well-known case of Cocking v Sandhurst to which we will be making reference in a moment.

	The employers subsequently presented their IT3 to the Industrial Tribunal on 1 August 1996, in effect saying, in relation to the differential treatment, that the facts relating to the male consultant were wholly irrelevant to the matters in issue between the parties.

	The matter first came before the Industrial Tribunal on 11 September 1996.  On that occasion the Industrial Tribunal made four orders.  First that the Originating Application did not include a claim of sex discrimination.  Second, it was ordered that the Applicant serve particulars of allegations of sex discrimination within fourteen days.  Third, in the event that the Respondents assert that an amendment to the Originating Application to claim sex discrimination would cause them prejudice, any statement relied upon in relation thereto shall be served on the Applicant at least seven days before the resumed date of hearing and fourthly, the hearing of the application was adjourned to 16 October.

	The reasoning which led the Industrial Tribunal to conclude that the Originating Application in its current form did not include a case of sex discrimination, seems to us to be obviously correct.  Paragraph 5 of their decision says:
“Paragraph 14 [we interpolate that means paragraph 14 of Section 10 of the IT1] certainly does compare her situation with another employee who is clearly a man.  However, the differential is claimed to be contrary to a particular provision of the disciplinary procedure.  No reference is made to sex discrimination.”

	When the matter came back on 16 October they took evidence from the Applicant (employee) Ms Liebling.  The employers did not give any evidence of prejudice themselves, although they did produce and rely upon a document which they indicated they would call a Certificate of Prejudice.  It is accepted on the employer’s behalf that the Tribunal took that document into account in arriving at their conclusion.  

	In Extended Reasons for their decision the Tribunal dealt with the matter in this way:
“13.   We did not accept the submissions made on behalf of the applicant.  Under Section 76 of the Sex Discrimination Act 1975, an Industrial Tribunal cannot consider a complaint of sex discrimination unless it is made before the end of the period of 3 months beginning when the act complained of was done.  Although Section 1 of the Act refers expressly to dismissal, it was our view that “act complained of”, even in the case of alleged dismissal, could not be the resignation of the applicant.  Not only did that fly in the face of the meaning of the words themselves, it would in effect permit an applicant to “regenerate” an expired limitation period at her own volition.

	14.   The consequence of that decision was that if we were minded to permit an amendment, it would only render justiciable those events occurring less than 3 months before the presentation of the application.”

	There was a cross-appeal lodged against that decision but that cross-appeal has been abandoned and not argued before us.  In paragraph 18 the Tribunal considered whether the Applicant had in some way deliberately delayed making a complaint of sex discrimination and concluded that she had not.  In paragraph 20 they indicate that no blame attaches to the Applicant herself and they say:
“   There may have been unsatisfactory advice given by her Trade Union representative but we do not think it is appropriate to disallow amendment on that basis.  There was, for example, no suspicion that he had deliberately delayed making the claim for improper reasons.”

	In paragraph 21 the Tribunal addressed their attention to the respective hardships if the amendment were or were not granted.  They noted that no evidence was called on behalf of the Respondents.  In paragraph 21 they said:
“... We were certainly prepared to accept that a lengthy delay would be prejudicial - that witnesses’ memories might have deteriorated etc.  However, in this case, the delay was only from March to July, a little over 2 months.  There was no reason to consider that memories would have faded substantially over that period.”

	It is to be noted that their reference to July in that paragraph is manifestly a reference to the letter of 3 July, which put the Tribunal on notice that it was the Applicant’s case that she wished to run, that she had been discriminated against unlawfully on the grounds of her sex.

	Paragraph 22 is the Tribunal’s consideration of the question of whether the employer’s would suffer prejudice through increased cost.  They considered that matter and they considered the question of inconvenience.  They referred to the decision of Cocking v Sandhurst and to a further case called British Newspaper Printing v Kelly.  They concluded as follows in paragraph 27:
“Having considered all the relevant circumstances and the submissions made on behalf of the parties, our view was that leave to amend ought to be granted, such that the applicant could claim sex discrimination.”

	The submission which was made to us on behalf of the employers was firstly that the Tribunal failed to direct themselves correctly.  This was a new claim which was being made.  It was a new claim which was being made out of time and therefore the Tribunal should have asked themselves the question whether it would be just and equitable to extend the time in accordance with the provisions of Section 75 and 76 of the Sex Discrimination Act 1975.  Thirdly, it was submitted, the Industrial Tribunal did not properly consider the question of hardship and inconvenience, in particular they did not have proper regard to the question of the increase of costs, bearing in mind that this was a case where the addition of a sex discrimination allegation would greatly widen the ambit of the issues before the Industrial Tribunal and, in any event, the Tribunal had only superficially dealt with the explanations for the delay; that it would appear from a chronology which had been prepared on behalf of the employee that there was scope for questioning how it came about that the claim for sex discrimination was not made in the first instance.  It was said that as a result of these mis-directions either we should allow the appeal or the matter should be remitted back to a new Tribunal for further consideration of these points.  

	In support of the arguments we were referred by Counsel to three cases in particular.  The first Cocking v Sandhurst (Stationers) Ltd [1974] ICR 650 in particular page 656H-657D, a decision of the national Industrial Relations Court.  Secondly to a case which is a decision of an Industrial Tribunal Chairman sitting alone, Coker v Diocese of Southwark [1995] ICR 563.  We were told that Counsel referred to this case only because it is itself referred to in Harvey Vol.4 Section T paragraph 311.01/.02.  Thirdly, to a more recent decision of the Employment Appeal Tribunal called Selkent Bus Co Ltd v Moore [1996] ICR 836 in particular page 842F-843F.
	It seems to us by way of general observation on these authorities that there is no discernible distinction to be drawn between what was said in Cocking and what was said in Selkent, although the Selkent decision should now be regarded as more contemporary and of more assistance than the earlier decision in Cocking.  Secondly, the general and only principle to be derived from these authorities is stated in Selkent at page 843F, namely: 
“(4)   Whenever the discretion to grant an amendment is invoked, the tribunal should take into account all the circumstances and should balance the injustice and hardship of allowing the amendment against the injustice and hardship of refusing it.”

	Thirdly, the decision of the learned Industrial Tribunal Chairman sitting alone in Coker should not be regarded as good law on this point, firstly because Cocking was not cited to him, secondly, it does not appear that the provisions of the “white book” were referred to him, nor the provisions of Section 35(5)(a) of the Limitation Act 1980 which is reproduced in the provisions of the “white book” Order 20 Rule 5(5).  It is, incidentally, to be noted that Coker was not cited to this Court in Selkent.   

	The employers submissions to us were that the Industrial Tribunal had correctly applied the decision in Cocking; that they had correctly treated the matter as a question of fact for them in the exercise of their discretion, having regard to all the circumstances.  The Tribunal have referred to Cocking and indicated in their decision that they had in mind all the relevant circumstances and the submissions which were made on behalf of the parties.

	It seems to us in the light of those submissions and the authorities to which we have been referred, that it is somewhat regrettable that a question of this sort should have occupied so much time.  The Originating Application was made most promptly.  Before the Respondents’ response was served, both the Industrial Tribunal and the employer were alerted to the fact that she intended to make a sex discrimination act complaint.  Secondly, whilst it is true that the IT1 did not do enough to flag a sex discrimination act complaint, it is clear that what was said about difference in treatment between her case and that of a man, must have sounded warning bells even if solely in the context of the application of the disciplinary procedure; and as we read the letter of 4 July from the Solicitors to the employers, that warning bell was rung.  Thirdly, there will be, inevitably, some overlap between the facts giving rise to both complaints, and fourthly, it is regrettable, as it seems to us, that the wide discretion which is given to Industrial Tribunals in considering whether or not to grant an amendment, should become encrusted by authority.

	As is noted in the “white book” at page 359 Vol.1 of the 1997 Supreme Court Practice, the guiding principle of cardinal importance on the question of amendment is that generally speaking all such amendments ought to be made “for the purpose of determining the real question in controversy between the parties to any proceedings or of correcting any defect or error in any proceedings.”  Secondly, where there is a new claim that is being advanced, then the question as to the exercise of discretion will be affected by a consideration as to whether the amendment adds or substitutes a new cause of action arising out of the same facts, or substantially the same facts, as those in respect of which relief had already been claimed in the action.

	That seems to us to be commonsense and reflect the justice of the case.  That is why we do not consider that the comments made by the Chairman in Coker are to be treated as good law any more.  
	It does seem to us in this case that there is room for debate as to whether the Industrial Tribunal have fully appreciated that the effect of what was being sought was to add a claim which prima facie would have been time barred.  However it is well-known that in the case of discrimination on the grounds of sex, where a complaint is presented out of time, the Tribunal has a wide discretion to permit such a claim to be advanced despite the passage of time.  The words of the statute “just and equitable” are wide words intending that the Tribunal should simply apply the concepts of justice and fairness.  Although Counsel for the employers sought to argue otherwise, it seems to us difficult to imagine circumstances in which it would not be just and equitable to grant an extension of time, in a case in which it was otherwise thought to be consistent with the interests of justice that an amendment should be made to an Originating Application.  

	Even if the Industrial Tribunal had conflated two questions, that is the issue of the time limit, and secondly, how far back a complainant may go when given leave to add a complaint of sex discrimination, it does not seems to us that they could be said to have mis-directed themselves in any material way.  The Industrial Tribunal were quite well aware of the time limit considerations as is manifest from the passages which I have read out.  Had we been compelled to do so, we ourselves would have applied the very same discretion which the Industrial Tribunal had applied in order to dispose of this appeal and we would have reached the same conclusion as the Industrial Tribunal if we had asked ourselves whether it was “just and equitable” in the circumstances to have allowed an Originating Application to be made out of time, for the reasons given by the Industrial Tribunal in their competent decision in this case.

	This seems to us to be an interlocutory decision made on the facts, having regard to the correct principles of law, and we therefore dismiss this appeal.