Appeal No.	 PA/0445/03/ZT

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 9 October 2003

Before
HIS HONOUR JUDGE PETER CLARK
(SITTING ALONE)

MR I WEST	APPELLANT

WEBPERFORM GROUP LTD	RESPONDENT

Transcript of Proceedings

JUDGMENT

RULE 3(10) APPLICATION EX PARTE

Revised

	APPEARANCES

For the Appellant		
For the Respondent		

HIS HONOUR JUDGE PETER CLARK

1	The Applicant, Mr West, was employed by the Respondent Webperform Group Ltd, as Business Development Manager from 11 June 2001 until his dismissal effective on 18 March 2002.  Thereafter he presented two Originating Applications to the London Central Employment Tribunal.  

2	In Case No 2204628/02, an unfair dismissal claim brought out of time, it seems that a Tribunal, by a Decision promulgated on 31 March 2003, refused to extend time.

3	I am concerned with Case No 2202892/2002.  By an Originating Application presented on 11 June 2002 the Applicant brought a complaint of breach of contract.  Later he applied to add a claim of automatically unfair dismissal under section 104 of the Employment Rights Act 1996 (ERA), that is dismissal by reason of his asserting a statutory right.  The twelve month qualifying period under section 108(1) ERA does not apply to such dismissals.  The Applicant had less than twelve months service.

4	That amendment application was opposed by the Respondent and was heard by a Chairman, Mr D A Pearl, sitting alone on 11 February 2003.  By a Decision with Extended Reasons promulgated on 17 February that Chairman held, directing himself in accordance with the guidance given by Mummery P in Selkent -v- Moore [1996] ICR 836 and the Court of Appeal decision in Housing Corporation -v- Bryant [1999] ICR 123, concluded that this was a category 3 case, that is to say, a proposed amendment which added a wholly new claim or cause of action not connected with the original claim, as opposed to a category 2 case, where the amendment involved attaching a new label to the originally pleaded facts.  In these circumstances he refused permission to amend.

5	Against that Order the Applicant appealed by a Notice dated 26 March 2003.  His grounds of appeal fall into broadly two groups; first, a challenge to the Chairman’s finding that the underlying facts on which the section 104 complaint are based cannot be found in the original Form IT1.  Secondly that the Chairman was guilty of procedural misconduct.  

6	Having considered the Applicant’s grounds of appeal the Registrar concluded that no error of law was identified so that the EAT had no jurisdiction to entertain the appeal.  She directed that no further action be taken under Rule 3(7) of the EAT Rules in a letter to the parties dated 10 April 2003.  

7	Dissatisfied with that Order the Applicant sought a hearing before a Judge under Rule 3(10).  The matter now comes before me.  

8	I note that a hearing was originally fixed for 2 July 2003.  However there is within the papers a letter dated 16 June 2003 from the Applicant’s General Practitioner stating that the Applicant was then suffering from fairly severe depression and that he was not in a fit mental state to attend on 3 July.  The hearing was vacated until 9 October.

9	I also see that by letters dated 11 September, 25 September and 6 October the Applicant was required to lodge a Skeleton Argument for today’s hearing.  He has not responded to any of those letters.  

10	In these circumstances, and in the absence of any up-to-date medical evidence, I have decided to consider the matter on the papers.  The Respondent, which has sent a representative to observe the proceedings today, is entitled to finality in the litigation just as the Applicant is entitled to be given the opportunity to be heard.  I also bear in mind the very full grounds of appeal which he lodged with his Notice of Appeal and his further representations contained in a letter to the EAT dated 2 May 2003.  

11	Reverting to those grounds of appeal I have concluded:
(1) The nature of the amendment
Having considered the way in which the Particulars of Complaint are drafted in the relevant Originating Application I have no doubt that the Chairman was correct in regarding the proposed amendment to add a claim of unfair dismissal under section 104 ERA as falling within what he and I have described as a category 3 amendment.  The proposed amendment seeks to raise a wholly new cause of action unconnected with the original claim of breach of contract.  Accordingly no error of law is raised in the grounds of appeal.  

(2) Procedural misconduct
I see no substance in the complaints raised by the Applicant.  First, there is a complaint that the Chairman displayed prejudice and unfairness by asking only the Respondent’s representatives for advice on procedure and points of law before commencing the hearing.  I have no doubt that this Chairman, experienced as he is, enquired of both parties as to the procedural history which is set out in paragraph 1 of his Reasons.  There is nothing improper about that.  It is also clear to me from his Reserved Decision and Reasons that, following the hearing, he took time to consider the relevant law and procedure in arriving at his detailed findings and conclusion.  Next there is an unparticularised suggestion that the Respondent was permitted to adduce fresh documentary evidence, not identified, and refusing to share their content with the Applicant.  Whilst I do not have either the Chairman nor the Respondent’s comments on this allegation I find it inconceivable that the Chairman would accept into evidence documents from one party which were then concealed from the other.  Similarly, that he insisted on reading aloud documents, again unspecified, which the Applicant wished to remain private.  

12	Whilst procedural impropriety may found a proper ground of appeal, the unspecified allegations contained in this Notice of Appeal, in my judgment do not.  

13	In these circumstances, I shall affirm the Registrar’s Direction and dismiss this application.