Appeal No. UKEAT/0775/04/ILB

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 9 December 2004

Before
HIS HONOUR JUDGE MCMULLEN QC
(SITTING ALONE)

SOUTHWARK CARERS	APPELLANT

MR E PARSONS	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MS BANN
(Representative)
Interchange Legal Advisory Service
Interchange Studios
Hampstead Town Hall Centre
213 Haverstock Hill
London
NW3 4QP
	
For the Respondent	MS M FAGBORUN
(Representative)
Free Representation Unit
6th Floor
289-293 High Holborn
London 
WC1V 7HZ 	

SUMMARY

Practice and Procedure

An Employment Tribunal Chairman had no power on remission by the EAT of one point of an appeal to make a Decision different from that made by the first Chairman and not appealed.

HIS HONOUR JUDGE MCMULLEN QC

1.	This case concerns the appropriate procedure to be adopted in what has now become an application to amend an Originating Application to include a claim of unfair dismissal, contrary to section 103A of the Employment Rights Act 1996.  This is the whistle-blowing provision.

2.	The Applicant had been engaged by the Respondent (as I will call those parties from their titles below) for about 10 months, until he received a letter of dismissal on 5 September 2003.  The Applicant made a claim in an Originating Application, which was drafted for him by his appropriate Trade Union following legal advice.  The Originating Application was an extraordinary document, for it simply contains, annexed to the standard two-page form, a chronology of events for many pages.  As a result of that, a Chairman, of his own motion, decided that further particulars should be sought, and questions were asked: 

“(d)	are you complaining that you were dismissed because you made a protected disclosure?
  (e)	are you complaining that you were subject to a detriment because you made a protected disclosure?”

The Applicant replied as follows:

“I cannot prove that I was dismissed on such grounds but once the Trustees were made aware, it was detrimental to my employment.”

As a result, the Chairman, Mr Hall-Smith, made a decision in a Case Management Order that the Applicant had not made a complaint of unfair dismissal in his Originating Application. 
3.	Following that the Applicant was represented by Ms Morayo Fagborun of the Free Representation Unit, who has presented a Skeleton Argument and oral argument to me.  In that she asserted, on his behalf, that it was clear that the Applicant was claiming both detriment and unfair dismissal.  Nevertheless she went on to say:

“I should be grateful if you would put before a Chairman my request to formally amend the originating application in this matter, so that box 1 now reads:
Whether I have been subjected to a detriment, alternatively unfairly dismissed, by my employers for making a protected disclosure”

4.	In response to that, Mr Hall-Smith, on 7 June 2004, declined to allow any application for an amendment, for the Applicant was now alleging that he was unfairly dismissed as a result of noticing the alleged protected disclosure.  The Decision by Mr Hall-Smith was made without reference to the Applicant and to the Respondent, and so, in due course, an appeal was lodged by Mr Parsons, which was heard by HH Judge Reid QC.  He decided to allow the appeal, and said as follows:

“21.	I take the view that this is a matter which should go back, the decision of 7 June having been quashed, to be reheard (and it can conveniently be reheard on Monday morning) and that on that occasion, with the benefit of argument from both sides, the Tribunal can decide whether the ET1 did contain such a claim under section 103A, whether that matter has already been determined between the parties and, in either event, whether, against the background as they find it, it is then appropriate, taking all the appropriate Selkent factors into account, for leave to amend to be granted so that this section 103A claim appears loud and clear on the face of the application.  
22.	No doubt there will be ferocious argument as to whether this is the introduction of a wholly new claim out of time, whether it is unfair to the Respondents to seek to introduce it at such a late stage, whether there is good reason why the application is being made at so late a stage and all the other matters which are customarily argued on applications to amend of this sort.  Those matters can then be resolved by the Tribunal and, having done so, the Tribunal can then determine whether or not to proceed with the hearing or whether the hearing needs to be adjourned.”

5.	The matter then came back before the Regional Chairman, Mr John Warren, who decided as follows:

 “IT IS HEREBY ORDERED that:-
1.	Leave be given to include a complaint that the Applicant was dismissed contrary to S103A Employment Rights Act 1996 for making various protected disclosures set out in the case management order following a Case Management discussion before Mr Hall-Smith on the 27 February 2004
2.	Annexed to the Originating Application was a chronology of events completed by the Applicant acting in person.
3.	In response to a Tribunal order for better particulars of the claim – the Applicant had alleged that he suffered a detriment because he had made such disclosures.
4.	Looking at the matter and adopting a common sense approach to it, it is clear that the detriments the Applicant records as having suffered include his dismissal.
…”

6.	Against that Order, the Respondent appeals, contending that it is not Meek compliant, that is, it does not meet the terms Meek v City of Birmingham District Council [1987] IRLR 250 (CA).  It is also contended that Mr Warren had no power to make the Decision he did, for an order may not be reviewed, and an order which has not been appealed is final.  It is contended that there are reasons on the merits why the Applicant should not be allowed to go ahead.

7.	On behalf of the Applicant, it is accepted now that the Decision made by Mr Hall-Smith was final; for what is sought here is an amendment to add the claim of unfair dismissal.  

8.	That disposes of one issue in the case.  In my judgment a Decision by Mr Hall-Smith, not appealed, that the Originating Application did not contain an allegation is unfair dismissal, is binding on the parties in this case.  It was not open to Mr Warren to hold, differently, that it was clear that the Originating Application appeared to include an allegation of detriment by reason of dismissal.  What appears to me to be unsatisfactory is that no reasons were given by Mr Warren for allowing the case to be so amended.  As Judge Reid pointed out, for consideration by Mr Warren, or the chairman who was to deal with it, would be those matters set out in paragraph 20 of Judge Reid’s Judgment, that is whether or not the matter had already been determined and whether, against that background, it was appropriate to allow an amendment to the Originating Application. For that the principles in Selkent would have to be applied.  Mr Warren cites no reasons for allowing the amendment or the application of any of the principles in Selkent.  

9.	The conclusion, therefore, must be that this matter will go back to a different tribunal chairman, who will pay attention carefully to the judgment of Judge Reid, but can now be excused from deciding whether or not the original Originating Application contained an allegation of unfair dismissal, for it is accepted today that it did not.  Thus, the sole question to be determined is whether, as a matter of discretion, an amendment should be allowed to add a new claim of dismissal contrary to section 103A.

10.	I would very much like to thank both of the advocates before me this morning for the concise way in which they have presented these claims.  Once the matter has been determined as I have directed, this case can go ahead either for detriment or for detriment and dismissal, and the parties should be ready to give dates to the chairman at the oral hearing for that to take place.