Appeal No.	 EAT/908/98

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On  1 June 1999

Before
HIS HONOUR JUDGE J ALTMAN
MRS R CHAPMAN
LORD DAVIES OF COITY CBE

MR J DAVIDSON	APPELLANT

MINISTRY OF DEFENCE	RESPONDENTS

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR FULLAWAY
(Representative)	
For the Respondents	MR KILCOYNE
(of Counsel)
The Treasury Solicitor
Queen Anne's Chambers
28 The Broadway
London
SW1H 9JS	

	JUDGE ALTMAN:	This is an appeal from the decision of the Chairman sitting alone at Ashford in Kent on 29th April 1998 when he refused leave to the applicant to amend the Originating Application to specify a claim under the Disability Discrimination Act 1995.

1.	The grounds, essentially, upon which the appeal in this case is mounted covers a number of grounds. These include first, that the Employment Tribunal erred in law in failing to conclude, in effect, that the new cause of action was already contained to a greater or lesser extent within the facts alleged in the Originating Application; secondly, that he erred by holding that the explanation for the delay was not acceptable and failing to take into account that the Employment Tribunal had directed that there would be no listing action; thirdly, that the decision that the appellant had an opportunity to take proceedings against his advisers was perverse; fifthly, that there was an error in failing to take into account that there would not be a wholly new case if leave were given; and fourthly, following the case of Selkent Bus Company Ltd v Moore [1996] ICR 836 EAT failing to appreciate the different facts in the two cases. I have summarised in rather a loose way the carefully drawn grounds in the amended grounds of appeal.

2.	Very briefly, the outline of the issues which faced in the Employment Tribunal were these. On 2nd May 1997 the appellant was dismissed and an internal appeal was lodged. On 31st July 1997 the Originating Application was filed in which issue was taken with the dismissal on the grounds of inefficiency and the circumstances of his case were set out, in which he contended that different moves during his employment, leading to a deteriorating performance, were, in effect, not due to him, but due to certain stresses of the work and travel, due to a lack of guidance, training and monitoring, a change of work content and exemplified, the tribunal said, by the fact that management themselves had thought and proposed to transfer the appellant back to where he had worked successfully in earlier years and ending up, despite this and together with mitigating health factors, when Mr Davidson was dismissed without compensation. That was expanded in a statement of case, lodged at the same time, in which it was said that there was a departmental review board as part of the dismissal process in which:

“5 … testimonials from previous line managers were submitted together with evidence of health problems (viz hyper-sensitivity to light and dyslexia). … 
6.	The approach to ONS was unavailing, and despite the mitigating circumstances Mr Davidson was dismissed from the MOD …”

	It is quite clear to us that the contribution of his dyslexia was part and parcel of the complaint of unfair dismissal at the heart of the matters that were going to be dealt with as a result of the Originating Application.

3.	The Notice of Appearance was entered on 12th August 1997, and a few days later at the behest of the respondents the listing of the case was postponed to facilitate an internal appeal then in process.

4.	The Chairman was in error in finding that both parties agreed to that postponement. The appellant resisted that postponement. In considering therefore the delay, there was that small error of fact in the mind of the Chairman.

5.	In September 1997 the appellant, through his union, had a medical examination to support his case of the medical conditions alleged, and learned that he had a positive diagnosis of dyslexia. He knew at that time that he had a claim. (I say ‘knew’ because he obviously did not actually know but one could attribute to him the means and material by which he could know that he had a claim under the 1995 Act). That was only about seven weeks after the expiry of the time limit after the original dismissal for raising a claim under time limit of the 1995 Act.

6.	Again, in October, there was an enquiry from the Employment Tribunal of the position and the parties agreed that the matter should be held out for the internal appeal. The tribunal enquired again in December, and in January 1998 the internal appeal was resolved.

7.	In February 1998 the appellant’s representative wrote to say that the appeal was concluded and sought leave to amend which gave rise to the application.

8.	It follows, therefore, that the application to amend was nine months after the date of dismissal. It seems to us, with respect to the learned Chairman, that he erred in saying that the claim was nine months out of time.

9.	The letter written during the course of the discussions about postponement from the Employment Tribunal to the appellant’s representative said:

“In any event an internal appeal is an integral part of the process of terminating an employee’ employment and the Tribunal will not be able to consider the Applicant’s complaint fully until the Appeal has been dealt with.”

	In the course of that letter it was said that there would no listing action until after the outcome of the internal appeal.

10.	It is said, on behalf of the appellant, that that led the appellant’s advisers into a false sense of security in that they felt that it was not appropriate or necessary to take any action and they let time slip by from September 1997 until February 1998, before seeking leave to amend, once it was necessary to come back to the Employment Tribunal.

11.	The Chairman, in reaching his decision, dealt with the exercise of discretion. In paragraph 4 of the reasons, when dealing with the chronology of what took place, he drew attention to the fact that there was, in the words of the Chairman:

“… a reference to Mr Davidson’s health problems which were described as hypersensitivity to light, and dyslexia. But there was no mention at all in the Originating Application of disability discrimination: the matter was mentioned simply as something which supported a claim of unfair dismissal.”

	It was not until the end of the decision, some three pages later, that the Chairman began to weight the circumstances to take into account when exercising his discretion. He did not take into account the extent to which, if at all, the facts which founded the claim under the 1995 Act were already to be found in the Originating Application.

12.	It is clear to us that from what he said and the place which it occupied in his decision, that having considered the fact that this disability had already been mentioned he then discounted it, because there was no mention of disability discrimination. It is clear, thereafter, he did not return to it. The way the matter is dealt with and the words used, lead, it seems to us, only to that conclusion. We say that, not least because of the careful way in which the learned Chairman spelt out those factors which he took into consideration.

13.	Quite properly, it seems to us, the Chairman drew attention to the case of Selkent Bus Co Ltd v Moore and the guidance as to the way in which tribunals should approach an application such as the present one, for leave to amend to raise a fresh cause of action, which “could not be spelt out” of the facts put forward in the Originating Application. There again, it seems that he has concluded, before he begins to exercise his discretion, that the claim could not be spelt out of those facts. Indeed, that seems to be, if we may say so with great respect, an error of interpretation even on the learned Chairman’s own findings, because all he had found was that there was reference to it, but it was not described as disability discrimination. So implicit in his earlier findings was the fact, to some extent at least, that it could be spelt out. The extent to which it can be spelt out may be a matter for argument.

14.	On behalf of the appellant it is suggested that delay was wrongly taken into account because of the way in which the appellant reasonably responded to the fact that there was an ongoing internal appeal and that listing had been halted. But it is quite clear to us in the body of the decision that is exactly what the learned Chairman did take into account.

15.	It is also complained on behalf of the appellant to consider that the appellant may have a remedy against someone else is to consider something that should not have been taken into account. It is one of those facts which judicial bodies, be they tribunals or courts, do take into account when balancing prejudice, even though we accept that there may well have been a lack of realism in the actual situation in this case and in that context.

16.	However, the case of Selkent is only one of a number and in the judgment on the preliminary hearing in this very case, His Honour Judge Peter Clark referred to other cases such as the R v Secretary of State for Employment, ex parte Equal Opportunities Commission [1994] IRLR 176 and Home Office v Bose [1979] ICR 481, which are all part of a long thread of authorities in the history of labour law in this country, which demonstrate that in exercising discretion as to whether to allow an amendment to raise what is ostensibly a new cause of action, a tribunal will take into account the extent to which, if at all, the substantive facts, which form the basis of the new allegation, have already been heralded in the Originating Application. In a sense, it all goes to prejudice and the need to do justice between the parties and the extent to which parties are taken by surprise or disadvantaged. Particularly, this must be the case in cases of disability discrimination where there is a discretion to extend the time where it is just and equitable to do so, which is a very different test to that in unfair dismissal claims, which form part of the thread of authority to which I have referred.

17.	In his conclusions, the Chairman came to the conclusion that there was a delay, to which he referred, of nine months or five on the most favourable view, as to when the appellant knew about it. The time limits are provided by Parliament, and are to be strictly observed. The learned Chairman recognised the existence of the discretion. He dealt with the explanation for delay. He looked at the case of Selkent v Moore and weighed prejudice in the balance. He defined the prejudice on the one hand as being the cost to the respondents and the possibility of alternative remedies for the appellant on the other. But he did not weigh in the balance the very important consideration of the extent to which a party would be prejudiced in the preparation of the case by having to face new allegations which had not been canvassed or the extent to which, on the other hand, the course of the case would be not greatly changed. Those are fundamental issues, it seems to us, and whilst we are very grateful to the forceful and persistent argument of Mr Kilcoyne, we really adopt his own definition of the duty of a Chairman in this situation, which he puts simply to be to put all the factors in the balance. He sought persuasively to argue that this Chairman did take into account the extent to which the original facts were already disclosed in the Originating Application, but we find to the contrary the Chairman excluded it from the exercise of discretion, albeit he mentioned it in his decision. It is the exercise of discretion, not whether a mention of something is made in a decision, that we have been asked to examine. It seems to us inevitable that we should conclude therefore that the Chairman failed to take account of an important and relevant consideration of fact in the exercise of his discretion to such an extent as to commit thereby an error of law.

18.	We have looked at the proposed amendment. We have borne in mind the words of the 1995 Act. We have also borne in mind the way in which those words have been interpreted, for instance in the case of O’Neill v Simm & Co Ltd [1998] IRLR 233, in which it is clear that where the reason for the act complained of is disability, that reason imports knowledge on the part of the employer. It seems to us, having looked at the proposed amendments, that there must be a question mark which requires investigation as to whether in fact the allegations made do disclose a claim under the 1995 Act. Is that Act designed to prevent overt discrimination by someone knowing of a disability or does it have a less clear cut application such as to the facts of this case? We have heard insufficient, as it seems to us, as to the background of this case. We are not sure that the appellant has fully adverted to this element, although it has been argued and it may be that the facts are determinant of it. 

19.	We have come to the conclusion that it would be wrong for us to go through the exercise of trying to piece together the elements necessary to exercise discretion one way or the other and to substitute our own view as to whether there should be an amendment for that of the learned Chairman. But having referred to those matters which, it seems to us in this case should be taken into account, we have resolved to allow the appeal in the following way.

20.	We allow the appeal and we remit this matter for further hearing before a fully constituted Employment Tribunal to hear the application for unfair dismissal and to hear by way of preliminary issue the application to amend to allege a breach of the provisions of the 1995 Act. No doubt, in the course of considering that preliminary issue, the tribunal will consider, first of all, whether to extend time and secondly, and in relation to that, the extent to which a new cause of action is in fact disclosed. So that that matter can be dealt with expeditiously as a preliminary point, we direct that the parties within 14 days of the promulgation of this judgment, should provide in writing for the Employment Tribunal their own full written skeleton arguments in support of their claims in respect of the preliminary issues.