Appeal No. EATS/0018/02

EMPLOYMENT APPEAL TRIBUNAL
52 MELVILLE STREET, EDINBURGH EH3 7HF

	At the Tribunal
	On 21 November 2002

 
Before
THE HONOURABLE LORD JOHNSTON
DR A H BRIDGE
MR R P THOMSON

 

McINTOSH DONALD LTD	APPELLANTS

 

 
GEOFFREY ALEXANDER ANDERSON	RESPONDENT

 
 
Transcript of Proceedings
 
JUDGMENT

 

 

 

 

 

	APPEARANCES

 

For the Appellants	Mr F H Lefevre, Solicitor
Of-
Quantum Claims
Employment Division
70 Carden Place
Queens Cross
ABERDEEN   AB10 1UP

 

For the Respondent	No Appearance
Nor Representation

 	

LORD JOHNSTON:
 
1.	This is an interlocutory appeal against the decision by two Chairmen of the Employment Tribunal refusing an application by the respondent appellant to amend the IT3 by substituting or adding a lengthy paper apart.
 
2.	The first Chairman by letter, opposition having been intimated, refused the application on the grounds that it came too late, or at least too long, after the original lodging of the IT3.  At the subsequent hearing scheduled for the application, a different Chairman sustained that view and looked at the matter in rather more detail taking the view that there was additional and new material found in the paper apart which would cause unfairness, it would appear, to the applicant.
 
3.	Mr Lefevre, who appeared before us, pointed to the fact that the paper apart was prompted by, firstly, his firm becoming involved in the matter at a late stage, by the fact that there had been a change of personnel manager within the company and by the fact that the applicant had changed his claimed remedy to that of reinstatement which, he submitted, broadened the basis upon which the employers might want to lead evidence or, at least, cross-examine on the issue of compatibility or lack of it.
 
4.	Mr Lefevre referred us to two cases which had been before the Tribunal, Ready Case Ltd v Jackson [1981] IRLR 312 and Selkent Bus Co Ltd t/a Stagecoach Selkent v Moore [1996] IRLR 661.  Both those cases, he submitted, showed broad bases upon which amendments could be allowed.  He also pointed to the fact that in Selkent a factor that had been taken into account was that the party in question had been unrepresented at the initial stage of the process.  The same was true here.
 
5.	While the matter is one for the discretion of the Employment Tribunal, we are satisfied that there is nothing of great materiality as far as novelty is concerned in the proposed amendment and, furthermore, it all relates to the conduct and attitude, allegedly, of the employee who cannot therefore be said to be unable to consider the matter.  While late, we do not consider that it was too late.  It would have been preferable for the hearing to have commenced, even on a without prejudice basis.  It seems to us that much of the material would be relevant to the issue of reinstatement and would have been admissible anyway without notice.
 
6.	In these circumstances we consider it appropriate to allow this amendment which we will accordingly do by allowing the appeal, allow the amendment and remit the matter to another Employment Tribunal, differently constituted, for the reasons given by the Chairman in his Note.