Appeal No. EAT/67/01

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 8 June 2001

Before
HIS HONOUR JUDGE PETER CLARK
MR J HOUGHAM CBE
MR N D WILLIS

MR S P JONES	APPELLANT

THE GOVERNING BODY OF
DAVISON C E HIGH SCHOOL FOR GIRLS	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING 

Revised

	APPEARANCES

For the Appellant	MR ANTHONY HUDSON
(of Counsel)
Appearing under the 
Employment Law Appeal 
Advice Scheme 

	

JUDGE PETER CLARK

1	The Applicant, Mr Jones, was employed by the Respondent as a Site and Premises Manager at the Davison High School, Worthing, from 1 October 1998 until 7 April 2000, when his employment ended.

2	Thereafter on 27 June 2000, with the assistance of his trade union, he presented an Originating Application to the Employment Tribunal complaining of “unfair selection for redundancy”.  In other words, unfair dismissal by reason of redundancy.  The complaint was signed by his representative, Tony Preece.  

3	On 13 July the Respondent entered a Notice of Appearance, admitting dismissal but denying that such dismissal, by reason of redundancy, was unfair.  By a letter dated 16 August 2000, outside the primary limitation period of three months, application was made to amend the Originating Application to add a complaint under the Working Time Regulations 1998.  

4	By letter dated 25 August a Chairman allowed the amendment on that written application.  That ruling was subsequently challenged by the Respondent and was reconsidered by a full Tribunal sitting at Brighton under Mr M J Davey on 6 October 2000.  On that occasion the Appellant did not appear but relied on written representations; the Respondent was represented by Ms Smith, a trainee solicitor, and attended with witnesses, some of whom were called.  

5	On the question of amendment the full Tribunal ruled that the proposed amendment added a new claim, not presaged in the Originating Application, out of time.  They decided that the amendment should be disallowed and dismissed that part of the claim.  

6	As to the claim of unfair dismissal, they enquired closely into the circumstances leading up to termination of the employment.  Notwithstanding the concession made by the Respondent in the Notice of Appearance that the Appellant had been dismissed the Tribunal concluded, for the Extended Reasons given with their Decision promulgated on 30 October 2000, that there was in fact no dismissal.  The employment had been terminated consensually.  Since dismissal is a pre-condition to a finding of unfair dismissal that complaint was also dismissed.  

7	Against the Tribunal’s Decision Mr Jones now appeals.  The principal point taken on his behalf by Mr Anthony Hudson, who appears on his behalf today under the ELAAS pro bono scheme, is in relation to the Davey Tribunal’s refusal to allow the amendment to add the Working Time Regulations complaint.  

8	Mr Hudson accepts, rightly in our view, that an Interlocutory Order of the type made by a chairman on 25 August in this case may be revisited and revoked by a later tribunal.  See Nikitas v Solihull Metropolitan Borough Council [1986] ICR 291.  

9	As to the principles to be applied in deciding whether or not to grant an amendment to the Originating Application, three categories of case fall to be distinguished: 
(i) amendments which merely alter the basis of an existing claim without raising a new cause of action;
(ii) amendments which raise a new cause of action linked to the facts originally pleaded and 
(iii) amendments which add a new claim or cause of action not apparent from the original form IT1.

10	The thrust of Mr Hudson’s submission is that the Tribunal here fell into error in concluding that because the Appellant was represented by a trade union official at the time when the Originating Application was lodged within time, the failure to raise the Working Time Regulations complaint in that Originating Application cannot be excused in circumstances where the Appellant was represented by a trade union or Citizens Advice Bureau.  

11	It was therefore reasonably practicable to bring the claim within time and accordingly the Appellant was in breach of the limitation provisions contained in Regulation 30 (2)(a) of the Regulations and for this reason the amendment was refused.  

12	We can see the force of that submission if that was the only ground on which the Tribunal rested its refusal to allow the amendment.  However we note from the Extended Reasons that it was argued on behalf of the Respondent that this was an entirely new head of claim and the Tribunal found that the claim under the Working Time Regulations was a quite separate and distinct matter from the claim for unfair dismissal.  

13	We think that the Tribunal had in mind the question as to whether or not the facts pleaded in the Originating Application, themselves gave rise to a possible claim under the Working Time Regulations.  In other words whether this was a Category 2 case, or a Category 3 case.  

14	Mr Hudson relies on these words in the body of the Originating Application:
“Since October 1998, I had carried out my duties as Site and Premises Manager for most of the time without the help of an Assistant Caretaker/Handyman.
From September 1999 until my dismissal (except only when I was off on Certificated Absence), I worked continuously without a break which greatly affected my health.”

He submits that those facts, pleaded or alleged, are sufficient to found a claim under the Working Time Regulations, which claim was formulated by Mr Jones in a document which he attached to his letter of 16 August applying for permission to amend the Originating Application in which he says this.  
“My complaint is that whilst working at Davison High School I was made to work hours which broke the Working Time Regulations and I was working seven days a week most weeks.  I was also not getting the eleven hours from when I finished at night to when I started again the following morning.  This was partly due to the fact that between October 1998 and September 1999 my assistant only worked four hours a day which he did during 11 am to 3 pm so that the school had cover whilst I was on my lunch break.”

15	We have carefully considered that submission, but we are driven to conclude that the Tribunal was entitled to find that the words of the Originating Application did not sufficiently underscore the claim which Mr Jones now says he sought to make, under the Working Time Regulations.  

16	In these circumstances, we think that the Tribunal was entitled to conclude that the case fell within Category 3, as we have earlier described the different types of amendment application, and that, bearing in mind that the claim was out of time so far as the primary limitation period was concerned, and that this was an impermissible amendment, bearing in mind the guidance given by the Court of Appeal in Housing Corporation v Bryant [1999] ICR 123.  In these circumstances we reject this ground of appeal.

17	Mr Hudson has not advanced specific submissions in support of the remaining grounds of appeal set out in Mr Jones’ Notice, and subsequent Skeleton Argument.  We think it right to consider the second decision point in the Tribunal’s determination, that is whether or not the Appellant was dismissed.  

18	First, given that the question of dismissal goes to the Employment Tribunal’s jurisdiction in an unfair dismissal claim, or at any rate is a precondition to a finding of unfair dismissal, it seems to us that the Tribunal was entitled to enquire into whether in fact and law the Appellant was dismissed by the Respondent.  Mr Hudson does not challenge that proposition.  

19	The question here was whether the termination arose as a result of the employer’s unilateral decision or whether the employment came to an end as the result of a genuine bilateral agreement.  

20	There are decided cases on both sides of the line.  On one side are cases such as Burton Alton & Johnson Ltd v Peck  [1975] ICR 193 (dismissal, despite the employee volunteering for redundancy); on the other cases such as Birch v Liverpool University [1985] ICR 470, where the Court of Appeal overturned an Employment Tribunal Decision in finding that termination under an early retirement scheme where the employees were not compelled to leave amounted to a consensual termination and not dismissal.  

21	We think that Mr Jones’ difficulty in this case is that he did not attend the Tribunal hearing to give evidence as to any pressure that was applied to him to agree to the terms on which he came to leave, and which are set out in the Tribunal’s Reasons at paragraph 9.  

22	In these circumstances, on the Tribunal’s findings of fact, we think that it was open to them to conclude that this was not a unilateral termination by the employer, but was a true consensual termination.  Accordingly, we are unable to find any grounds for interfering with the Tribunal’s substantive Decision, dismissing the claim of unfair dismissal.  Therefore this appeal fails and is dismissed.