Appeal No.	 EAT/94/99

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 18 February 1999

Before
THE HONOURABLE MR JUSTICE CHARLES
MR R JACKSON
MR T C THOMAS CBE

BAIRD MENSWEAR BRANDS LTD & OTHERS	APPELLANTS

MR P SAMUDA	RESPONDENT

Transcript of Proceedings

JUDGMENT

INTERLOCUTORY HEARING

Revised

	APPEARANCES

For the Appellants	MR A LYNCH
(of Counsel)
Messrs Gordons Wright & Wright
Solicitors
14 Piccadilly
Bradford
West Yorkshire BD1 3LX	
For the Respondent	MR D BROWN
(of Counsel)
Legal Dept
USDAW
Oakley
188 Wilmslow Road
Fallowfield
Manchester M14 6LJ	

	MR JUSTICE CHARLES:     The parties to these proceedings are a Mr Samuda who is the Applicant below and Baird Menswear Brands Ltd and two other individuals who are the Appellants.

	The appeal is against a decision of the Employment Tribunal contained in their Extended Reasons dated 21 December 1999 and that decision is set out (and I will not set it out here) at the beginning of those Extended Reasons.  It is an interlocutory decision.  The effect of it was to permit an amendment to proceedings commenced in December 1987 claiming unfair dismissal.  A central ground of complaint in the appeal before us is that, by a letter dated 20 March 1998, the Employment Tribunal had made a decision that amendment of those December proceedings should not be allowed and that the correct course for the Applicant was to issue new proceedings and to seek an extension of time to bring them, pursuant to the Race Relations Act. The Applicant issued such new proceedings in April 1998.

	We have had the benefit today of both parties being represented by Counsel.  The Applicant below is represented by a Mr Brown who came into the case late yesterday evening and has very properly before us accepted that, having regard to (a) the letter of the Employment Tribunal that I have referred to, and (b) the confirmation of those representing the Company that everybody attended before the Employment Tribunal thinking that they were addressing the issue as to whether or not an extension of time should be granted in relation to the second proceedings, matters have gone awry and there is a point of law which has the consequence that the matter should be remitted.

	We agree with that.  Whether the point is described as res judicata or abuse of process or breach of natural justice, or simply a lack of fairness in that the parties were directing their minds to a different issue to that which the Tribunal decided does not matter for present purposes.  The Tribunal simply went wrong.

	We can understand why the Tribunal may have taken the course they did because the additional allegations could be brought into the December proceedings by way of amendment, or they could be brought in by new proceedings with an extension of time.

	If there had not been an earlier decision of the Tribunal refusing amendment of the December proceedings the issue would then have arisen as to whether or not in allowing the amendment the Tribunal had applied the correct test.  In our judgment they did not apply the correct test in this case because it is made clear in Selkent, a decision of Mr Justice Mummery, when President of this Tribunal, that it is important when an amendment is sought to add a complaint out of time that the statutory time limit is considered.  It appears to us that the Tribunal did not consider that point adequately in reaching their decision as to amendment.

	We would add that, in our judgment, the need to consider the statutory provisions as to time limits flows inexorably from the primary legislation.  It is not right that amendments should be made adding causes of action outside the statutory time limits without the statutory provisions as to their extension being considered properly.

	We should add that we did not hear Mr Brown on the points relating to amendment and he indicated to us that he would have wished to make some submissions thereon.  However, in view of his correct concession referred to earlier that the Tribunal should not have amended the December proceedings, it was not necessary to hear him on these matters.

	The only point of dispute between the parties was whether or not this matter should be remitted to a differently constituted Tribunal.  Mr Brown made valid points that quite often interlocutory matters can safely and (both actually and apparently) fairly be remitted to the same Tribunal.  Everybody makes mistakes of law and it is quite easy to face up to that and deal with the matter when it is remitted.  However, in our judgment, in this case, if this matter were remitted to the same Tribunal the parties would justifiably feel troubled.  This Tribunal have exercised a discretion.  In doing so, in our judgment, they have erred in several ways and there would always be the difficulty, so far as they are concerned, in taking a course either of justifying their original decision or of reacting against it simply to show that they are being abundantly fair.  That causes problems so far as the perception of both parties is concerned.  

	In our judgment this matter should be remitted to a different Tribunal.  We make clear that what is being remitted is the application which the Employment Tribunal indicated was to be decided by them on the first occasion, namely whether there is to be an extension of time in the second set of proceedings (ie those issued in April 1998).

	At present there is no appeal or application for a review of the decision in the earlier set of proceedings concerning amendment.  

	We remit the second set of proceedings and the issue relating thereto as to whether there should be an extension of time to a differently constituted Tribunal.