Appeal No. UKEAT/0453/03/MAA

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 24 September 2003

Before
HIS HONOUR JUDGE J McMULLEN QC
(SITTING ALONE)

MR DANIEL DUFFIN	APPELLANT

DELOITTE AND TOUCHE 
WEALTH MANAGEMENT LIMITED	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR C BAYLIS
(of Counsel)
Instructed by:
Messrs Gordon Dadds
Solicitors
80 Brook Street
London W1K 5DD	
For the Respondent	MS C STROUD
Solicitor
Messrs Freshfields Bruckhaus Deringer
Solicitors
65 Fleet Street
London EC4Y 1HS	

HIS HONOUR JUDGE J McMULLEN QC

1	This case is about Employment Tribunal procedure when faced with an application to amend an Originating Application.  I will refer to the parties as Applicant and Respondent. I am hearing the appeal under the Employment Rights Act 1996 section 28(4) i.e judge alone.

Introduction
2	It is an appeal by the Applicant in those proceedings against the Reserved Decision of an Employment Tribunal Chairman, Ms V Cook, sitting at London Central, registered with Extended Reasons on 16 April 2003.  The Applicant was represented today by Mr C Baylis, and different Counsel there.  The Respondent was represented here and there by Ms C Stroud, solicitor.  The Applicant claimed constructive dismissal and breach of contract.  It appears to be common ground that that is a claim for unfair dismissal under Part X of the Employment Rights Act 1996; the details ran for eighteen pages.  The Applicant sought to amend to include a claim under the protection given to disclosures in the public interest.  The Respondent denied dismissal but contended that any dismissal so found was fair and for some other substantial reason.  The Notice of Appearance in its present form runs to thirty three pages.  The Respondent resisted the amendment.  

The issue
3	The essential issue for the Chairman was whether the amendment sought should be allowed.  She refused.  The Applicant appeals against that decision.  Directions sending this appeal to a full hearing were given in Chambers by His Honour Judge Peter Clark. 

The legislation
4	The relevant provisions of the legislation are Regulation 10 and Rules 4 and 15(1) of the 2001 Employment Tribunals Regulations.  These give the Tribunal power to regulate its own procedure within the overriding objective and to manage cases.  There is no specific power to amend; it is common ground that the Chairman in this case had such power.  Part X of the Employment Rights Act 1996 gives a right to complain about unfair dismissal.  What Mr Justice Mummery in Selkent Bus Co t/a Stagecoach - v- Moore [1996] ICR 836 describes as ordinary unfair dismissal, is set out in section 98 and there are specific categories of treatment which give grounds for what he described as automatically unfair dismissal.  The relevant one here is section 103A:
“An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that the employee made a protected disclosure.”

This refers to Part IVA and in particular to section 43A to G.  There is found a detailed regime including specific conditions to be met before a claim can be made of unfair dismissal on the grounds related to the making of a qualifying disclosure.  These conditions include the nature of the material disclosed, the provider, the recipient, the manner of disclosure and the state of mind of the discloser, that is good faith and reasonableness.  

The Tribunal Decision
5	The Chairman directed herself by reference to the relevant provisions on what I hold to be the leading authorities which were cited in her Extended Reasons, namely Selkent above; Sim v Manchester Action on Street Health (MASH) EAT/0085/01 (unreported); Harvey -v- Port of Tilbury London Ltd [1999] ICR 103 and The Housing Corporation - v - Bryant [1999] ICR 123.

The facts
6	My account is tentative because there has been no hearing of the substantive issues in this case, The Respondent was engaged in the financial sector and advises on personal taxation and both regulated and unregulated activities. The Applicant joined it on 23 November 1998 until his resignation on 30 July 2002.  At the time of his leaving he was the Compliance Officer and Money Laundering Reporting Officer, paid £80,000 a year plus a bonus and other benefits.  

7	The Applicant’s claim was intimated to the Respondent the day after he left, and two months later an Originating Application was lodged.  It was signed by his solicitors on 3 October 2002.  Those solicitors sought by letter to clarify, as they put it, the nature of the Originating Application by a letter of 19 December 2002.  This was resisted and thus the directions hearing before the Chairman came on.  It is fair to say that the Respondent has also sought to amend the Notice of Appearance and this matter has not yet been determined.  

8	The Chairman decided that the Originating Application did not disclose a claim under the Employment Rights Act 1996 section 103A.  The claim actually included a reference to the Public Interest Disclosure Act which is the source of section 103A and section 43 A to G.  The Chairman considered Selkent (above) and held that the Originating Application as originally presented could not be read explicitly or implicitly as including a PIDA complaint, as I will call it.  She considered Selkent and held that the application fell within the substantial amendment or new complaint category and not within the minor matters which include the correction of clerical and typing errors and the addition of factual details.  

9	The Chairman decided therefore to consider the matter as one of jurisdiction.  It was noted that the complaint had been presented 49 days out of time, there were no new facts coming to the notice of the Applicant, his advisers believed that the complaint did include a complaint under section 103A and thereafter on Counsel’s advice the Applicant had acted promptly.  The Chairman seemed to indicate that there was no evidence in support of those matters, but they do seem to me to be borne out by what I have heard.

10	The Chairman considered relative hardship and prejudice and although accepting that there would be considerable hardship to the Applicant if the amendment were refused she decided that it was not appropriate that the amendment should be allowed. She had weighed the submissions made to her on hardship by the Respondent too which included the involvement of significant expense additional to that already incurred in replying to the original long pleading and further costs and the risk of unlimited compensation.  It must be noted that a successful claim under the PIDA provisions allows unlimited compensation whereas ordinary unfair dismissal compensation is capped.  

The submissions
11	On behalf of the Applicant it is contended that it was wrong for the Chairman to rely upon Selkent in her approach to it and in her diagnosis of the nature of the claim.  It was contended that if this were a truly new cause the Chairman was bound by the judgment of the Court of Appeal in British Newspaper Printing Corporation (North) Ltd -v- Kelly & Others [1989] IRLR 222.  Alternatively if this were simply a re-labelling matter the Tribunal Chairman had misapplied the approach in Selkent.  There were no new primary facts to be adduced.  The issue of connection between the events described by the Applicant and his disclosure did not require the assertion of new primary facts and in any event that is a matter of causation which, it was originally submitted but not maintained, was not an issue of fact.

12	In the course of debate Mr Baylis accepted that the Court of Appeal’s approach to causation and causative links indicated that it treated it as one of fact; see Bryant above.  On behalf of the Respondent it is contended that the approach is either one of construction or one of overall assessment, again following Bryant, see Lord Justice Buxton at page 130.  Further, it is contended that the Notice of Appeal, relying as it does on perversity and alleging insufficiency of weight, indicates that Applicant considers the Chairman was engaged in the assessment process.  

13	It is contended that the relief which the Applicant seeks still does not prove the essential causative link pursuant to the judgment of the EAT in Sim; it is not enough for there to be an implicit linkage, but even if it were that is not exigible from the present state of papers, this is a new cause of action.  A Chairman does not err if not every aspect of its thinking has been mentioned when exercising a discretion, see, for example, Harvey at page 1042 E to F per Mr Justice Lindsay (President).

The legal principles
14	The legal principles to be applied appear to me to emerge from the following authorities.  In Bryant alternative approaches to the question of amendment was set out by Lord Justice Buckley.  If the approach is simply one of construction of the Originating Application, it is susceptible to appeal if it is contended that the analysis is flawed.  

15	On the other hand if, as Lord Justice Buckley indicated, there was not a discrete legal issue but an assessment by the Chairman of the reality of the claim, an appeal should not be heard by the EAT - see page 130 G - H.  In that case an attempt by the Applicant in proceedings originally brought for unfair dismissal and sex discrimination to amend to include victimisation was refused. As to the unfair dismissal it was sought to allege that that was also victimisation arising similarly under the Sex Discrimination Act. The Court of Appeal allowed the appeal from the EAT which had allowed an appeal in from the Chairman. In other words, the judgment of the Chairman refusing to allow an amendment was upheld on the basis that there had to be demonstrated a causative link between the making of an allegation, in that case of sex discrimination, and dismissal. Taken as a matter of construction of the Originating Application, the absence of a causative link was fatal. 

16	In Selkent Mummery P laid down the relevant principles for the determination of whether an amendment should be allowed.  He approved the assumption that there is a general discretion in the Tribunal to allow amendments following Cocking -v- Sandhurst Stationers Ltd [1974] ICR 650, 656G to 657G.  He continued as follows:   at page 843

“In every case in which a tribunal is asked to amend a complaint by changing the basis of the claim or by adding or substituting respondents they should proceed as follows. (1) They should ask themselves whether the unamended originating application complied with rule 1 of the Schedule to the Regulations of 1972: see, in addition to home-made forms of complaint Smith v Automobile Proprietary Ltd [1973] ICR 306.  (2) If it did not, there is no power to amend and a new originating application must be presented.  (3) If it did, the tribunal should ask themselves whether the unamended originating application was presented to the secretary of tribunals within the time limit appropriate to the type of clam being put forward in the amended application. (4) If it was not, the tribunal have no power to allow the proposed amendment.  (5) If it was, the tribunal have a discretion whether or not to allow the amendment.  (6) In deciding whether or not to exercise their discretion to allow an amendment which will add or substitute a new party, the tribunal should only do so if they are satisfied that the mistake sought to be corrected was a genuine mistake and was not misleading or such as to cause reasonable doubt as to the identity of the person intending to claim or, as the case may be, to be claimed against.  (7) In deciding whether or not to exercise their discretion to allow an amendment, the tribunal should in every case have regard to all the circumstances of the case.  In particular they should consider any injustice or hardship which may be caused to any of the parties, including those proposed to be added, if the proposed amendment were allowed or, as the case may be, refused.”

In that case the conclusions are equally important, for the EAT decided that the amendment pleaded facts which had not previously pleaded in support of a new positive case of automatic dismissal for trade union reasons, and fresh primary facts would have to be included and inferences made from them.  It looks as though the EAT decided that that is either a new case or a case which requires very substantial new material to be adduced.  

17	The application of Selkent was the subject of discussion by the Court of Appeal in Kelly above, but the Court of Appeal’s judgment has been subjected to further analysis by the EAT in Harvey, where it was held that a complaint of unfair dismissal could not be amended to include a new cause under the Disability Discrimination Act, for a time limit of three months was imposed by the latter statute and any complaint whether made afresh or as in addition to the Originating Application made in time constituted a complaint which was required to meet the time limit. Thus the EAT distinguished Kelly.  

18	That has been followed in Cook -v- Clarke EAT/0070/03 (unreported) 28203 in which I sat with members.  Thus if a claim is properly designated as a new complaint, the only material which is required to be examined is whether or not the claim is in time and whether it is just and equitable (if based on an anti-discrimination statute) to allow the amendment to be made.  In the present case the unfair dismissal provisions must be brought within three months, or if that is not reasonably practicable within some period that is reasonable thereafter.  

19	In Sim above, a similar approach was adopted for that case is not dissimilar from our own.  The application was to amend an Originating Application which had originally claimed unfair dismissal, wrongful dismissal and failure to provide written reasons.  The Applicant then indicated that he wished to add claims under section 43 of the Employment Rights Act, that is related to protected disclosure.  Lindsay P indicated at paragraph 3 that expressions such as “I believe” and “maybe” hardly suffice as a true allegation.  He went on to say as follows:
“The subject matter of protected disclosures and to whom they must be made and by whom and in what state of mind were all matters carefully regulated by the Employment Rights Act sections 43B and 43C and need to have their constituent parts set out and specified in a claim even if only in very brief or summary form.  Concern as to financial probity falls short, as it seems to us, without further allegation of 43B(1)(b).  Concern as to safeguarding the health and safety of employees also falls short, in our view, unless further amplified.”
The EAT went on to give further illustrations.  

My conclusions
20	I reject the arguments presented to me on behalf of the Applicant and support those of the Respondent.  It seems to me that the exercise in which the Chairman was engaged was not simply a construction of the Originating Application before she considered wider material.  I would regard her approach as falling within Lord Justice Buxton’s second category i.e carrying out an assessment of the reality of the situation.  I say this because the challenge to her decision is based on perversity; it hardly makes sense for a judgment on a pure construction of a document to be challenged on the ground of perversity.  

21	The Notice of Appeal alleges the attribution of insufficient weight to various matters; that too is a matter more consistent with this being an assessment by a Chairman rather than a construction.  If that is so, then there is no basis for my intervention, but I acknowledge that Lord Justice Buxton’s primary way of expressing the matter in the Bryant was as one of construction.  Thus the matter would be susceptible to appeal.  

22	If the matter is taken then as one of construction it is necessary to consider the nature of the amendment.  The amendment seems to fall within the category of a new case.  I accept that for the purposes of unfair dismissal there is a single channel, that is a complaint under section 94.  However in box 1 of the Originating Application there is provided the following:
“1  Please give the type of complaint you want the tribunal to decide (for example, unfair dismissal, equal pay).  A full list is available from the tribunal office.  If you have more than one complaint list them all”
To this the Applicant added:
“Constructive dismissal
Breach of contract”

23	Now, unfair dismissal is expressly mentioned in the legend and so he need have said nothing more, but he decided to be specific and cite constructive dismissal.  As I have indicated, it appears to be common ground that he meant “Constructive unfair dismissal”.  The full list which is available from the Tribunal office and on the website does break down the various forms of claims, including a PIDA claim, such as I am dealing with and all the other specific claims under the Employment Rights Act.  The amendment therefore would constitute a new claim and would have to have to be regulated by section 111 which required the claim to be presented within three months.  

24	However the current Tribunal Chairman has gone further.  She not only made her decision on the basis of the time point  but also on the basis of submissions made to her which might broadly be described as encompassing matters within paragraph 5C of Mummery P’s judgment in Selkent.  Again I do not think she can be faulted for doing that; she, after all, is looking at what is accepted to be the exercise of a discretion, whether to allow an amendment, and so she has considered issues of hardship and prejudice to both parties, she has considered the circumstances of each of the parties. Indeed it must be recalled that is what she was required to do by reference to the Notice of Appeal, for example, it is contended that she erred in law by failing to consider the position of the Respondent or failing to understand the Appellant’s position.  

25	That indicates to me that the Applicant accepts that a wide approach to the question of the amendment is to be encouraged.  In any event, even if she were to be narrowly confined with section 111 in her approach, no error of legal principle emerges from her balancing of the essential issues relating to hardship and the circumstances of both the Applicant and the Respondent.  Her decision on section 111 alone, it seems to me, is unimpeachable and if that is the correct approach it cannot faulted.  

26	If, alternatively, a wider approach is enjoined, a wide approach cannot be criticised in its application.  I have been shown various forms of amendment which were sought.  I accept that there is no actual linkage between PIDA and the constructive dismissal in the unamended Originating Application.  Even in its amended form, I accept the submission that it does not deal with all of those matters held to be so critical by the EAT in Sim, and thus even now it would fail to meet the test.

27	It seems to me that had the Applicant considered those matters in section 43A to G which are necessary to the making of a claim, given his job title he would have put them in. I do not consider than an injustice was done to him by the Chairman when she balanced all the factors, like the EAT in Selkent. In those circumstances I will dismiss the appeal. The case will go ahead as an unfair dismissal complaint without the special feature.