Appeal No. EAT/545/02/RN

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 16 January 2003

Before
HIS HONOUR JUDGE PROPHET
MR D A C LAMBERT
MR P M SMITH

THE BRITISH MILLERAIN CO LTD	APPELLANT

MR P EMBLEY	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellants	NO APPEARANCE OR
REPRESENTATION
BY OR ON BEHALF OF
THE APPELLANTS	
For the Respondent	NO APPEARANCE OR
REPRESENTATION
BY OR ON BEHALF OF
THE RESPONDENT	

JUDGE PROPHET:

1	Mr Embley submitted an Originating Application to the Manchester Employment Tribunal on 7 January 2002, complaining of an unfair dismissal.  The employer submitted in his Notice of Appearance that Mr Embley did not have sufficient continuous service to enable the Tribunal to consider the merits of unfair dismissal and a preliminary hearing in respect of that issue was arranged.

2	That hearing took place on 16 April 2002 before a full Tribunal under the chairmanship of Mr Leahy.  At the beginning of that hearing Mr Embley, who was unrepresented, asked the Tribunal to accept an amendment to his application to include a complaint for damages for breach of contract.  That was opposed by the employer, but the Tribunal duly decided to allow it and explain the reasons for so doing in their Decision promulgated on 30 April 2002.  

3	The Employment Tribunal also found that, in respect of unfair dismissal, Mr Embley did not have 12 months’ continuous service, notwithstanding that in his Originating Application he indicated that his understanding of the date his employment ended was that it was on 11 November 2001, ie one month after a meeting between himself and his employer which took place on 11 October 2001.  There is no appeal against that part of the Employment Tribunal’s determination.

4	The employer, represented by Professional Personnel Consultants Ltd, have appealed against the Tribunal’s decision to allow the amendment, which has opened the way for an Employment Tribunal in due course to hear a breach of contract complaint, which relates to matters considered in such cases as Silvey v Pendragon Plc [2001] IRLR 685.  At a preliminary hearing at the Employment Appeal Tribunal held on 23 September 2002, the appeal was allowed to proceed to a full hearing.  

5	We have convened today for that full hearing but the Appellants’ representatives have advised us in advance of their decision not to attend, but to rely on their written representations.  There is no attendance either on the part of Mr Embley, who has also submitted a Skeleton Argument.  Consequently, we have decided to determine the appeal on the papers.

6	The Appellants say that the Employment Tribunal’s decision was perverse and one that no reasonable Tribunal could have reached.  It is suggested that the Employment Tribunal imposed an excessively liberal interpretation of the Originating Application in finding that it did contain a claim for breach of contract.  It is also submitted that the Tribunal misinterpreted the Court of Appeal’s judgment in Silvey v Pendragon plc.  It was further suggested that the Tribunal had decided that damages for breach of contract had already been expunged by pay in lieu of notice and an ex gratia payment.  

7	We are unable to see how an interpretation of Silvey is relevant, since no determination has yet been made as to the merits of any breach of contract.  The real issue here is in respect of the Employment Tribunal’s powers to allow amendments to Originating Applications.  The leading case on that matter is Selkent Bus Co Ltd v Moore [1996] IRLR 661.  It is perhaps a little unfortunate that the Employment Tribunal did not refer specifically to that case, but they clearly examined the issue before them by an application of the principles so carefully set out in that case by Mummery J, as he then was.  In particular, Mummery J said in Selkent, that the “paramount considerations are the relevant injustice and hardship involved in refusing or granting the amendment”.  The Employment Tribunal clearly weighed those considerations.  They found, as they put it, that “the small shoots for breach of contract” were in the Originating Application.  

8	We are unable to find that there was any error on the Tribunal’s part in reaching that conclusion.  The factual basis was essentially the same in that, if it was found that the employer had failed to give Mr Embley his contractual notice to which he was entitled, then that would prejudice his rights to claim unfair dismissal, since he would be denied the extra period of service which would have qualified him in that respect.

9	The suggestion that damages for breach of contract have already been expunged was not a statement by the Employment Tribunal, as we understand it.  The claim here of breach of contract relates, as we understand it, to the consequences of the breach of contract depriving the employee of the service necessary to qualify for an unfair dismissal claim.

10	It is also suggested by the Appellant that once the service requirement for unfair dismissal has been determined in their favour, that should have prevented any further consideration by the Tribunal of breach of contract.  However, that cannot be right.  This was a matter where the Employment Tribunal had to weigh the position, as between the injustice and hardship involved in refusing or granting the amendment, as Mummery J set out in Selkent.  Their view that justice would be served by the Tribunal allowing the amendment is one that cannot reasonably be challenged.  Consequently, this appeal is dismissed.