Appeal No. EAT/0680/01

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 11 July 2002

Before
MR RECORDER LANGSTAFF QC
MR D J JENKINS MBE
PROFESSOR P D WICKENS OBE

SWISS RE LIFE AND HEALTH LTD	APPELLANT

MR A H KAY	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MR T KIBLING
(of Counsel)
Instructed by:
Messrs Eversheds Solicitors
Fitzalan House
Fitzalan Road
Cardiff CF24 0EE	
For the Respondent	MR J LEWIS
(of Counsel)	

MR RECORDER LANGSTAFF QC

1	This is an interlocutory appeal from a decision of the Employment Tribunal at London (Central) whose reasons were promulgated on 10 April 2001.  That Tribunal allowed an application by the Respondent to amend his Originating Application to the Tribunal.

2	The facts underlying the claim were these.  The Respondent had been employed for some 30 years by the Appellants.  He was employed in a senior capacity as a Legal Officer.  He was, in fact, a solicitor.  He was dismissed from that employment on 8 June 2000.

3	He applied, by Originating Application dated 21 August 2000, to the Tribunal defining his claim as one of disability discrimination.  In Box 1 of the application form an Applicant is asked to give the type of complaint:

“you want the Tribunal to decide (for example: unfair dismissal, equal pay).  A full list is given in Booklet 1.  If you have more than one complaint list them all.”

Only one complaint, that of disability discrimination, was mentioned.

4	In Box 11, where there is room for details of the complaint, this was said:

“Despite having had a heart attack and with ongoing heart disease, so having a disability under the Disability Discrimination Act, my employment was terminated without regard to and contrary to the provisions of the Disability Discrimination Act.”

5	The Tribunal faced an application to amend that Originating Application on 14 March 2001.  That was, therefore, some seven months after the claim by the Respondent had been identified as one of disability discrimination.  Why was it, then, that the Tribunal acceded to the application made by the Respondent to amend his application at their hearing on that date?
6	The Tribunal had, under the Rules then applicable, a discretion to permit an amendment.  The Rules provide for amendment without there being an express requirement that any claim sought to be introduced by amendment must comply with the time limits which would otherwise be applicable to that claim if it were a free-standing complaint brought by way of a separate Originating Application.

7	The Tribunal recited a number of facts at paragraphs 1-9 of its decision.  Amongst those it specifically identified a directions hearing at which the issue, which had been identified amongst others for decision at the merits hearing, was:

3	(1)	“what was the reason for the Applicant’s dismissal?”

8	It noted that, although the Respondent was a solicitor, he had throughout been acting in person.  It recorded that, in a letter received by the Tribunal, the Respondent had identified as a first issue the reason for his dismissal and indicated that he had rejected the reason given by the Respondents, that it was redundancy, as they claimed.

9	Then the Tribunal, in paragraph 10 said this:

10	“Having taken all the facts into account as stated above we allow this amendment on the following grounds:

(1)	The Applicant was at all times acting in person when he made the application to this Tribunal.
(2)	If we delete the reference to his heart attack from paragraph 11 of the application it is clear that the Applicant is claiming that he was dismissed without a good reason.
(3)	We therefore conclude that there is a causative link between the IT1, the brief facts as stated, and a claim for unfair dismissal.

10	The Tribunal continued at paragraph 11 to add a further ground as follows:

11	“Then taking into account the justice to the parties and the hardship to the parties it is clear to us that the Applicant was aggrieved and had put in a complaint and the Respondents have responded to that complaint by claiming in their IT3 that the Applicant was dismissed but for reason of redundancy which is a potentially fair reason within Section 98 of the Employment Rights Act 1996.”

They proceeded to consider the balance of hardship and justice in paragraph 12.  No complaint is made before us as to the nature of that balancing exercise as such.

11	Mr Kibling, for the Appellants, recognised that if this Tribunal was to allow the appeal it would be interfering with the exercise of a discretion of the Tribunal below.  Appeals to this Tribunal are appeals on matters of law.  Accordingly, he accepted that it was necessary for him to demonstrate that some wrong legal principle had been applied, or that some factor had been taken into account by the Tribunal which should not have been taken into account, or some factor left out of account which should have been taken into account, or, finally, that the decision by the Tribunal was simply perverse.

12	He takes a number of points which he says satisfies that high hurdle.  In particular, he characterises them as, first, a point as to the characterisation by the Tribunal of the nature of the Originating Application.  He says that this Tribunal was not entitled to regard the wording in the Originating Application as, in effect, complaining about the act of dismissal, such that to make a claim of unfair dismissal was simply a matter of re-labelling the application.  Mr Kibling’s submission was that it was, in effect, and could only be, a completely new claim.

13	Secondly, and perhaps accordingly, he argued that the Tribunal had not directed itself specifically by reference to Section 111 of the Employment Rights Act 1996.  That section provides for the time limit applicable to claims of unfair dismissal in these terms:

111	(2)	“…an Employment Tribunal shall not consider a complaint [of unfair dismissal] unless it is presented to the Tribunal – 
(a)	before the end of the period of three months beginning with the effective date of termination, or
(b)	within such further period as the Tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period of three months.”

14	Further, he says that there was no consideration of whether it would or would not have been reasonably practicable, within the meaning attributed by case law to those words, for the Respondent to have raised his claim of unfair dismissal earlier than he did.

15	He notes that no evidence was taken by the Tribunal, which therefore meant that it had no evidential material before it upon which it could make any determination as to the reasons for the seven-month delay in issuing the application to amend.

16	Thirdly, he takes an evidential point.  He says that this Applicant was no ordinary litigant.  He was, by profession, a solicitor; he was, by occupation, a legal officer.  He might have added that he was a man in a well-paid and senior occupation.  He had solicitors acting for him, although not necessarily in the conduct of his proceedings before the Employment Tribunal, but in relation to other outstanding matters of complaint between him (the Respondent) and his employers (the Appellants).  Accordingly, it was not appropriate to regard him as being in the same category as a Tribunal might conventionally regard an unrepresented litigant.

17	Fourthly, he argued that the decision reached to amend was simply perverse.

18	He supported those submissions by reference to case law.  In particular, he argued, that the decision of this Tribunal, the President giving the judgment, in the case of Harvey v Port of Tilbury (London) Ltd [1999] ICR 1030, demonstrated that the essential matter for a Tribunal to consider when considering an application to amend was the question of the time limit that would otherwise be applicable if the application had not been to amend but had been a free-standing application.

19	That was an appeal made by an employee against a decision of a Chairman of Tribunals to refuse his application to amend.  He had rejected that application to amend because it had not been made within the three months beginning with the act complained of, as prescribed by paragraph 3(1) of Schedule 3 of the Disability Discrimination Act 1995.  The claim that was being considered was one of disability discrimination.

20	It was argued that the Chairman should also have considered, if not as the major consideration, the balance of injustice and hardship as between the parties.  That submission was rejected by this Tribunal.  It had been supported by reference to the earlier Court of Appeal decision in British Newspaper Printing Corporation (North) Limited v Kelly [1989] IRLR 222.

21	In Kelly, what had occurred was that the Court of Appeal upheld a decision by this Tribunal to allow an appeal against a Tribunal which had refused the amendment of Originating Applications.  The amendment in that case was proposed in cases which had initially claimed redundancy but in which, subsequently it was sought to add unfair dismissal as a ground of complaint.
22	In dealing with the issues which arose, the Court of Appeal, in the judgment of Donaldson (MR), with which Bingham and Mann LJJ agreed, addressed the question of the appropriate approach by a Tribunal.  It indicated, in particular at paragraph 12, that the Tribunal should have asked what were the relevant hardships expected to be suffered by the parties if the amendment was, or as the case might be, not allowed?

23	It was the failure by the Tribunal to do so which the Court of Appeal appear to have regarded as probably being a misdirection.  That case is, as the President recognised in Harvey v Port of Tilbury (London) Ltd, binding authority, at least in any case in which it is sought to change a complaint that dismissal has been on the grounds of redundancy, to one which complains about unfair dismissal.

24	He declined to follow it in the case before him.  The basis for distinguishing British Newspaper Printing Corporation (North) Limited v Kelly was that the statutory basis was different.  Accordingly, the President felt able to look afresh at the question of the principles that should apply when examining the issue before him, in respect of the Disability Discrimination Act 1995.

25	For the Respondent Mr Lewis points out that the section of statute considered in British Newspaper Printing Corporation (North) Limited v Kelly was not the Disability Discrimination Act 1995 but was the direct forerunner of what is now Section 111 (2).  Accordingly he says, and we think he is right in this, that whatever our views might be as to the underlying reasoning, we are bound by that decision.

26	It seems to us, therefore, that we have to reject the submission that the only consideration to which a Tribunal should have had regard, was the question of the time limits which would otherwise be appropriate.  We are not unhappy to do so because if it were otherwise those time limits would be conclusive and there would be no basis for providing, in any case, that an amendment might be made without those time limits being directly applicable.  They will, of course, almost always be an important consideration.

27	Just as much was recognised by the decision of Mummery J (as he was) in the case of Selkent Bus Co. Ltd. v Moore [1996] ICR 836.  When reviewing, in general terms the procedure and practice which should relate to amendments, he recognised, first, the generality of the discretion resting in a Tribunal to regulate its procedure and to grant leave for amendment and, secondly, set out what he considered to be the relevant circumstances, which were not limited to the applicability of time limits.  They included, significantly, the nature of the amendment sought and the timing and manner of the application.

28	Mr Kibling accepted that in the case before us much, if not all, depended upon whether the Tribunal was entitled to come to the conclusion it did in respect of the nature of the complaint that was conveyed by the Originating Application.

29	He suggested that it was not permissible for the Employment Tribunal to have regarded what was said in Box 11 as being a complaint which encompassed, or indicated, that the unfairness in general terms of the dismissal was at the heart of the complaint.  This was because, he submitted, the Employment Tribunal Service had administratively recognised the claim as one being brought under the Disability Discrimination Act 1995.

30	It was coded ‘DDA1’ in a box in the top right-hand corner, in which that Service indicates the nature of the complaint as it appears to them.  He noted the wording of Box 1 and the way in which the Respondent had identified his claim as being one of disability discrimination, despite the open and obvious invitation to have recorded unfair dismissal, if that was in truth what was being complained of.

31	He suggested that any complaint of “dismissal” would not necessarily convey any sense of unfair dismissal.  It might, for instance, be a dismissal which was automatically unfair under some other provision.  It might be in truth an allegation that the dismissal was for health & safety reasons or for trade union reasons or because of a protected disclosure or because of Sunday working or indeed it might be a dismissal which was itself an act of sex discrimination or one of discrimination on the grounds of race.

32	In short, he was urging that a Tribunal could not simply identify from the fact of the words “my employment was terminated” that the Applicant here was complaining about unfair dismissal and still less could the Tribunal draw that conclusion when the Applicant himself had identified the reason for that dismissal as being because of his disability.

33	Mr Lewis, for his part, argued that the Tribunal must, at the very least, have been entitled to draw their own conclusions as to the central thrust of the complaint made to it.  Not only did it have the information contained in the Originating Application which, he submitted, indicated that a dismissal and the unfairness of it was central to the complaint but that was also the way in which the Appellants themselves had regarded the complaint.  They responded by identifying the reason for the dismissal as being redundancy.  Therefore, as soon as the Respondent’s notice was received issue was joined as to the true reason for the dismissal and compensation was plainly being sought on the basis that it was not redundancy.
34	He added that the Tribunal had both correspondence from the Respondent and the advantage of his submissions at a hearing for directions in which it was plain that the central issue between the parties was whether or not the dismissal was justified, for one reason or another.

35	On that basis he said that, whatever the situation might be in respect of other cases, in this case it could not be said that the Tribunal was disentitled from taking the view it did of the essential complaint made in the Originating Application.

36	We have come to the conclusion that the test which has to be applied is not whether we ourselves would have regarded the Originating Application as making a claim of dismissal and of the essential unfairness of that dismissal, but whether the Tribunal was entitled to come to that view.  We are fortified, in taking that approach, by having Mr Kibling’s endorsement of it.

37	Taking that approach, although it occurs to us that the Employment Tribunal may have been benevolent toward the Respondent, they were entitled to regard the words in the Originating Application as essentially conveying a complaint about dismissal.  It follows that we reject the characterisation ground upon which Mr Kibling’s argument essentially depends.

38	We think that where facts are sufficiently identified in an Originating Application, from which a consequence in terms of compensation may follow if the appropriate legal label is attached, that it may be appropriate to focus less upon delay and more upon the potential injustice of the proposed amendment than would be the case if there were little connection between the facts outlined in the Originating Application and the cause of complaint identified under statute.

39	Given the approach that we have taken to the characterisation point, the next question is whether or not the Tribunal, in the light of that permissible conclusion, correctly approached the exercise of their discretion.

40	The Tribunal referred itself to the guidelines set out in Selkent Bus Co. Ltd. v Moore [1996] ICR 836.  It summarised the headings, to which Mummery J had adverted.  The paragraph, paragraph 10, despite the infelicities in wording which are apparent and which Mr Lewis was driven to concede, appears to us to be saying that the Tribunal took into account, first, a factual background which was one of delay within the Employment Tribunal process of the initial application.

41	Secondly, it took note of the fact that the Originating Application was not professionally drafted.  Thirdly, it concluded that the Applicant was claiming that he was dismissed without a good reason and, fourthly, that those essential facts as claimed gave rise, fairly obviously, to a claim of unfair dismissal.

42	The question arises whether the Tribunal sufficiently considered the issue of delay.  Once one reaches the conclusion that the complaint was, in essence, about the fairness of the dismissal then it seems to us that the Tribunal’s approach to delay was one which cannot be faulted in the sense that we cannot detect an error of law in it.

44	The Tribunal did have regard to the fact of delay.  In paragraph 7 it noted that the application was made outside the 3-month period set out in the Employment Rights Act 1996.  That may contain an ambiguity as to whether the application itself recognised that the new complaint was a free-standing one, or whether it recognised that had it been a free-standing one then different time limits would have applied.
45	We think, taking the decision as a whole, that the latter must have been the way in which this Tribunal approached the question because otherwise they would have addressed and have had to have addressed the statutory time limits set out in Section 111, which it is common ground, they did not do in terms.  Therefore, they had regard to delay as one of the factors which told upon the exercise of their discretion.

46	As we have already indicated, there was essentially no complaint about the balancing exercise which the Tribunal then engaged in, although Mr Kibling did observe that the Tribunal had placed insufficient weight upon the fact that, by permitting the amendment, in circumstances in which the Tribunal was going to go on to reject the claim based upon disability discrimination because it found that the Respondent was not in fact disabled, the Tribunal was seriously disadvantaging the Appellant.  The Appellant would then have to face a claim and a Tribunal hearing which otherwise it might have avoided.

47	However, we do not think that this point renders invalid a balancing exercise described, as it is, in paragraphs 11 & 12 of the judgment of the Employment Tribunal.  We do not think it possible for a Tribunal to set out in great detail, nor is it required that they should, every detail such that every ‘i’ is dotted and every ‘t’ is crossed.  Having reviewed those paragraphs it seems to us that we cannot interfere with the exercise of that discretion, however much we, for our part, might have come to a different conclusion.

48	It follows that, short of two points, the appeal would be rejected.  Those two points are the ‘evidential point’ and the ‘perversity point’.  So far as the evidential point is concerned, we do not think that there is any force in it.  It would have force if it could be demonstrated to us that the Tribunal had made an error of law.

49	The first matter which it took into account, as a ground in paragraph 10, was the fact, as it asserted, that the Applicant was at all times acting in person when he made the application to the Tribunal.  Factually, there was no material before the Tribunal which rendered that statement false, nor has any been supplied to us.

50	If it implied, as it seemed at one stage to us to do, that the Applicant was to be excused delay because of his inexperience and unfamiliarity with court proceedings, we might have concluded that the Tribunal was reaching a decision without having had the evidence upon which to base it.

51	However, we have been persuaded by Mr Lewis that the Tribunal here were dealing with the nature of the Originating Application itself and the point in essence was simply that it was not professionally drafted.  As such, we do not think there is any such force in the evidential point as to enable this Tribunal to overturn the decision reached below by the Tribunal in the exercise of its discretion.

52	Finally, it will follow from what we have already said, that we cannot accede to the plea of perversity.  Essential to our conclusions is the view to which we have come; that this Tribunal was entitled to take the view that the complaint was essentially about dismissal and its unfairness.  For those reasons this appeal must be rejected.