Appeal No. EAT/0440/01

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 11 October 2001

Before
THE HONOURABLE MR JUSTICE WALL
MISS C HOLROYD
MR G H WRIGHT MBE

D R SIMPSON (CHILLED FOODS) LIMITED	APPELLANT

MRS S K STAFFORD & MISS J ALLEN	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	NO APPEARANCE OR REPRESENTATION 
BY OR ON BEHALF OF
THE APPELLANT	

MR JUSTICE WALL

1.	This is the preliminary hearing of an appeal by D R Simpson (Chilled Foods) Limited (the Appellant) against a decision of the Employment Tribunal sitting at Hull on 31 January 2001.  The decision was that the complaints by Mrs Stafford and Miss Allen, who are the Respondents to this appeal should include (although not previously pleaded) a claim under the Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000.

2.	Although this preliminary application would normally be heard without notice to the Respondent but with the Appellant appearing to argue it, it has been agreed that in this case the Appellant need not appear today. Instead,  a full, detailed skeleton argument has been submitted which we have of course considered carefully.

3.	In the circumstances we do not propose to deal with the facts in substantial detail.  The two cases are broadly similar.  Taking Miss Allen’s case, she claims unfair dismissal and sex discrimination against the Appellant.  This is on the basis that initially she was working for the Appellant full-time.  She became pregnant in July 1999, notified the Appellant of the fact and by agreement took maternity leave.  She should have returned to work on 11 July 2000, but whilst on leave was made aware by a colleague that the Appellant intended to make a number of redundancies.  She made contact with the Appellant, who confirmed that this was the case, and also confirmed the criteria for selection.  This meant that part-time employees would be selected first with full-time staff being subject to additional/alternative criteria.

4.	Miss Allen claims unfair dismissal on a number of grounds.  In essence however, she claims on the basis that she was discriminated against as a part-time employee; part-time employees were also women and were being made redundant first before any full-time employees.  That in very sketchy form is the background.  

5.	The employment of the two women was terminated respectively on 7 and 15 July.  They sent their applications to the Employment Tribunal on 21 September 2000 and those were received on 4 October.  They were accordingly within the time limit of three months.  So far as Miss Allen was concerned this  expired on 7 October: so far as Mrs Stafford was concerned  it was 15 October.

6.	The claims were consolidated.  So far everything was straightforward.  However, on 13 December 2000, solicitors on behalf of the Applicants wrote to the Employment Tribunal seeking permission to amend both applications to include a claim under Regulation 5 of the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 to which I have already referred, and which had come into force on 1 July.  That application was opposed by the Appellant’s solicitors and on 28 December the Employment Tribunal, in correspondence, refused to agree to the amendment saying that if the applicants wished to pursue a fresh head of complaint they should submit new applications.

7.	New applications were not submitted.  Indeed the Applicants’ solicitors wrote to the Appellants’ solicitors confirming their intention not to issue additional applications.  However, on 31 January 2001 when the matter came before the Employment Tribunal for directions the Chairman took a different view and an Order was made in these terms:

“For the avoidance of doubt and to confirm the Tribunal’s determination communicated to the parties before the start of the hearing it is ordered that the Tribunal will consider complaints based on Regulation 5(1) of the Part-Time Workers (Prevention of Less Favourable Treatment Regulations) 2000 in addition to the existing complaints.”

I think in error I said that was at a directions hearing.  It was in fact at the start of the substantive hearing that an objection was taken.  The Order, however, was made and an adjournment sought.  It is against that Order that the Appellant appeals.  The reasons given by the Chairman were these:

“1.	A cursory glance at the IT1 and IT3 shows more than a possibility that the said Regulations apply.

2.	An earlier application to amend the IT1’s to include the said Regulations was already out of time.

3.	The Tribunal has a general power to regulate its own procedures and often a complaint is added to those filed if it seems in the interests of justice.

4.	The earlier decision of a chairman in an administrative position at the time should not preclude a full Tribunal taking a different view.”

8.	Leaving aside for the moment whether or not the decision of the previous chairman was administrative as opposed to judicial, objection is taken to the order which has just been read out on a number of grounds.  We do not  think it necessary for us in this hearing to go through the skeleton argument in any detail.  On the one hand it can of course be said that the Applicants come fair and square within the Regulations.  On the other the application made under the new Regulations was plainly very substantially out of time when it was made and it is certainly arguable that the chairman of the Tribunal did not properly address his mind to that question when giving permission for it to be included.

9.	There are other more subtle and sophisticated arguments advanced in the skeleton argument and we do not propose to limit the appeal to any one particular issue.  We are satisfied however, that there is plainly here an arguable point,  particularly given the failure or apparent failure of the Chairman to address the issue of the proceedings being out of time as well as the other matters raised in the skeleton argument.  In those circumstances we propose to direct this matter proceed to a full hearing.