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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> G W Padley Vegetables Ltd v. Theed [2002] UKEAT 0590_01_1004 (10 April 2002)
URL: http://www.bailii.org/uk/cases/UKEAT/2002/0590_01_1004.html
Cite as: [2002] UKEAT 0590_01_1004, [2002] UKEAT 590_1_1004

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BAILII case number: [2002] UKEAT 0590_01_1004
Appeal No. EAT/0590/01

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
             At the Tribunal
             On 10 April 2002

Before

HIS HONOUR JUDGE PETER CLARK

MRS M T PROSSER

MISS C HOLROYD



G W PADLEY VEGETABLES LIMITED APPELLANT

MISS A THEED RESPONDENT


Transcript of Proceedings

JUDGMENT

Revised

© Copyright 2002


    APPEARANCES

     

    For the Appellant MR D BROWN
    (of Counsel)
    Instructed By:
    Freeth Cartwright
    Solicitors
    Willoughby House
    20 Low Pavement
    Nottingham
    NG1 7EA
    For the Respondent MR D MATOVU
    (of Counsel)
    Instructed By:
    Citizens Advice Bureau
    Medlock Voluntary Centre
    St Georges Road
    Boston
    Lincolnshire
    PE21 8YB


     

    JUDGE PETER CLARK:

  1. This is an appeal by G W Padley Vegetables Ltd, the Respondent before the Lincoln Employment Tribunal, against that Tribunal's majority decision, (the chairman, Mr J S Walker dissenting) granting the Applicant, Miss Theed, permission to amend her originating application to add a claim of direct racial discrimination. That decision, promulgated with extended reasons on 29 March 2001, followed a hearing held on 21 February.
  2. Background

  3. The Applicant presented her originating application to the Tribunal on 22 May 2000. She there named as her representative Victoria Miller of the Boston Citizens Advice Bureau. In box 1 of the form she described her complaint as unfair dismissal, brought against the Respondent, who employed her as a quality assessor from 30 September 1996 until her resignation effective on 24 March 2000. She gave the following particulars of her complaint.
  4. "I believe that I was unfairly dismisses by G.W. Padley, in that I was constructively dismissed from my employment with them. The reasons why I felt that I could no longer work for them and was forced to send a letter of resignation on 22nd March 2000 were:
    1. During my three and a half years of employment I was subjected to a constant barrage of racial abuse by some of my co-workers
    2. Although I made many complaints to my line manager these were disregarded and treated flippantly as if racial abuse were a joke.
    3. I also complained to my supervisor who said I was "too sensitive to the issue" who dissuaded me from making an official complaint because management would agree with her.
    4. I know that Padley's have a written policy about racial abuse, but they have never taken any steps to implement that policy be reprimanding anyone.
    5. I have witnesses who would be prepared to testify to specific cases of verbal abuse."
  5. On 15 June 2000, the Respondent entered a notice of appearance, disputing the claim. Prior to lodging that notice the Respondent's solicitor wrote to Ms Miller on 5 June 2000, enclosing a detailed request for further information of the Originating Application. The Citizens Advice Bureau responded on 30 June, enclosing a copy of a statement by the Applicant setting out, in some detail, particulars of the racial abuse which she alleged she had suffered during her employment from named employees of the Respondent and her attempts to complain about such treatment to named members of management. She is black.
  6. On 21 December 2000 the CAB wrote to the Tribunal, applying to amend Box 1 of the originating application to add 'racial discrimination' to the words unfair dismissal. Asked for their views the Respondent, by letter dated 25 January 2001, objected to the proposed amendment. Hence the interlocutory hearing fixed before Mr Walker's Tribunal for 21 February. Meanwhile, the substantive hearing of the complaint had been fixed for 5 days, starting on 18 April 2001, at the Boston Hearing Centre.
  7. The Tribunal Decision

  8. The Tribunal accepted unanimously that no new facts were asserted in relation to the proposed complaint of racial discrimination in addition to those advanced in support of the original, timeous unfair dismissal complaint.
  9. Having been taken to a number of authorities and the section on amendment to the originating application in Harvey on Industrial Relations and Employment Law, volume 5, T311 – 312, the Tribunal divided in this way. The majority concluded that the instant case fell squarely within the second of Harvey's 3 categories, those categories being
  10. (i) amendments to the Originating Application which are merely designed to alter the basis of an existing claim, but without purporting to raise a new distinct head of claim
    (ii) amendments which add or substitute a new cause of action but one which is linked to, or arises out of the same facts as, the original claim, and
    (iii) amendments which add or substitute a wholly new claim or causes of action which is not connected to the original claim at all.

  11. Having so categorised this particular proposed amendment the majority concluded that this was simply a labelling exercise and no question of time limits arose. Alternatively, if they were wrong about that, the substance of the complaint remained the same as was originally pleaded and the balance of prejudice favoured the amendment being allowed.
  12. The chairman took a different view, which he described as narrower than that of his lay colleagues. In particular and by reference to the judgment of Lindsay J. in Harvey v. Port of Tilbury Ltd [1999] ICR 1030, he concluded that the proposed amendment raised a new cause of action out of time and, on the balance of prejudice to the parties, he would not allow the amendment.
  13. The Appeal

  14. Mr Damian Brown attacks the majority decision below in two ways. First, he submits that they were wrong in holding that the question of time limits did not apply; secondly, that they exercised their discretion to allow the amendment impermissibly in law.
  15. Taking his first point, Mr Brown has been driven, with characteristic bluntness to criticise the three-fold categorisation by the learned editors of Harvey. He relies particularly on the Presidents' judgment in the Tilbury case.
  16. We reject that criticism. In our judgment Harvey, the text book, correctly states the position. The basis for that categorisation is to be found in Selkent v. Moore [1996] IRLR 661, paragraphs 22 – 23 per Mummery J. We see nothing in the later cases of Tilbury and Housing Corporation v. Bryant [1999] ICR 123 (CA) which detract from the analysis in Selkent. On the contrary those cases, and Selkent itself, on its facts, demonstrate the distinction between category 2 and category 3 cases. We accept Mr Matovu's submission that the first question is whether the facts supporting the new head of complaint sought to be added by way of amendment can be found in the Originating Application. In the present case they can, hence no question of limitation arises. In Selkent, Tilbury and Bryant they cannot. Therefore the question did arise.
  17. Thus we conclude, on Mr Brown's first submission, that the majority below correctly applied the law. The learned chairman did not; he took an approach consistent with a category 3 case which, on any view, this case was not.
  18. That leaves Mr Brown's second submission. He complains, principally, that the majority overlooked the prejudice to the Respondent of having to deal with a new claim which exposed them to unlimited compensation liability. However, as Mr Matovu points out, that presupposes the Respondent has in fact lost a limitation defence. It has not, for the reasons which we have given.
  19. That point aside, we can see nothing impermissible in the majority's balancing exercise so far as prejudice between the parties is concerned. They were entitled to conclude that permission to amend ought to be granted in this case.
  20. Accordingly, this appeal is dismissed.


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URL: http://www.bailii.org/uk/cases/UKEAT/2002/0590_01_1004.html