Appeal No. UKEAT/0859/03/DM

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 15 March 2004

Before
HER HONOUR JUDGE WAKEFIELD
(SITTING ALONE)

GOLDSBOROUGH LIMITED (SUED AS BUPA CARE HOMES)	APPELLANT

MRS F LAKE	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MS A REINDORF
(Of Counsel)
Instructed by:
BUPA Legal Department
BUPA House
15-19 Bloomsbury Way
London
WC1A 2BA	
For the Respondent	MS C GITTINS
(Representative)
Instructed by:
Messrs Bart-Williams & Co
Solicitors
97A Ilford Lane
Ilford
Essex
IG1 2RJ	

HER HONOUR JUDGE WAKEFIELD

1.	This is an appeal by Goldsborough Ltd against the decision of an Employment Tribunal at Watford, with the chairman sitting alone, by which the present Respondent (who was the original Applicant to the Employment Tribunal) was given permission to amend the Originating Application.

2.	The factual background to the appeal is somewhat complex but for the purposes of today the following appears most relevant.  Mrs Lake had presented an Originating Application to the Tribunal on 24 January 2003.  In it she complained in Boxes 1 and 11 respectively of the IT1 of the following:  Box 1 “(see enclosed letters) contract terminated”; Box 11 “My contract with BUPA Care Homes, Wellington Park Nursing Home, 76 Wellington Road, Bush Hill Park, Enfield EN1 2PC, was terminated as stated in letter dated 17th September 2002, while I was in receipt of a Doctors Statement (G.P Certificate”.  She gave the dates of her employment as having been August 1989 to October 2002.

3.	By the Notice of Appearance the Respondent sought further and better particulars of the type of complaint being made and asserted that the Applicant had terminated her employment by resigning with effect from 27 September 2002.  It was therefore said that:

“The Applicant’s claim for unfair dismissal, if so alleged, is out of time.”

4.	By a letter to the Employment Tribunal dated 1 April 2003 Solicitors who were by then acting for Mrs Lake sought leave to amend the Originating Application.  The proposed amendment stated that the claim was for unfair dismissal, breach of contract and disability discrimination.  A chairman of the Employment Tribunal, Mr Pettigrew, considered the application in Chambers and without recourse to the Appellant granted leave.  On 11 July 2003 a Hearing had been fixed at the Employment Tribunal to determine as a preliminary issue whether the Originating Application had been presented in time.  At that hearing the Appellants made objection to the amendments, they having been given no notice of the application to amend and having had no opportunity to make representations.

5.	The hearing on 11 July, not chaired by Mr Pettigrew, made no determination as to whether the original Originating Application was presented in time.  Representations were subsequently invited from the Appellants as to the proposed amendments.  Having received those representations.  Mr Pettigrew made the decision which is now the subject of this appeal.  He held no hearing prior to making that decision.

6.	In the Extended Reasons, the Tribunal set out the history and referred to the decisions in the cases of Selkent Bus Co Ltd v Moore [1996] IRLR 661 and Cocking v Sandhurst (Stationers) Ltd [1974] ICR 650 and to the principles to be applied when considering whether or not to allow an amendment.  The Tribunal reached conclusions in paragraphs 15 - 28 of the Extended Reasons but it is paragraphs 18-22 which are particularly relevant to this appeal.  They are in the following terms:

“18   The proposed amendment seeks to add a complaint of breach of contract and disability discrimination.  It is clear to me that there is a deficiency in box 1 of the originating application and that it is a deficiency of labelling.  It is particularly clear that Mrs Lake is complaining that her contract was terminated.  This could be a claim for either unfair dismissal or breach of contract or both.

19.	As to the proposed amendment to add a claim to disability discrimination I found it significant that in box 11, Mrs Lake indicated that the reason why she thought that the termination of her contract was either unfair or wrongful was that she was dismissed whilst she was in receipt of a doctor’s certificate.

20.	I have not considered, for the purpose of this decision, whether the Applicant had a reasonable prospect of establishing that she was a disabled person within the meaning of the Disability Discrimination Act 1995, having regard to the requirement that the impairment has to be long term.  I did not regard it as appropriate to take any view on the contentions put forward by the Applicant, as I perceived my remit was to consider the Application to amend on the basis that it contained a complaint in respect of which the Tribunal might have jurisdiction.

21.	I do not agree that the proposed amendments change the nature of the claim for unfair dismissal.  I found that in the original, the Applicant was clearly drawing a link between the fact that she was off sick and the alleged termination.  In my view that link was clear enough to show she was arguing that her dismissal was unfair on the basis that it was her absence that was the reason. 

22.	The addition of factual information in the proposed amendment therefore gives detailed background to the very brief outline of her case in box 11.  It appears to me that the amendments sought are minor, in that they add the missing labels to the facts already pleaded, and add detail by way of background to the initial pleading to enable her claim to be understood.”

7.	For the appellant it is argued today that the proposed amendment as to including a claim of disability discrimination (the other aspects of the amendment not now been objected to) was not minor or a matter of re labelling but it was indeed a substantial amendment adding a wholly new cause of action.  Having considered the cases of Selkent, Cocking and the others to which I have been referred today, especially Corcoran v (1) Harrison Ingram (2) Shore in the EAT on 24 March 2003 and Fujamade v London Borough of Hackney in the Employment Appeal Tribunal on 17 July 1997 I agree with that submission on behalf of the Appellant.

8.	As was said in Selkent at paragraph 22 by Mummery J, as he then was, in the Employment Appeal Tribunal, applications to amend are of many different kinds ranging on the one hand from the correction of clerical and typing errors, the addition of factual details to existing allegations and the additional substitution of other labels for fact already pleaded, to on the other hand the making of entirely new factual allegations which changed the basis of the existing claim.  The Tribunal have to decide whether the amendment sought is one of the minor matters or is a substantial alteration pleading a new cause of action.  In this case it was the pleading of a new cause of action for which different primary facts would have to be proved.
 
9.	I am also satisfied that in the particular circumstances of this case the Employment Tribunal was wrong to make a decision on the merits of the application without holding a hearing and having evidence presented to it, including an explanation from Mrs Lake as to the delay between the Originating Application and the application for permission to amend.

10.	From the Extended Reasons it is apparent the chairman made certain assumptions as to the extent and reasons for the delay for which there is no apparent evidential basis - see paragraphs 24 and 25 of the Extended Reasons.  In all the circumstances I am satisfied that the Employment Tribunal exercised its discretion wrongly and therefore was wrong in law, with the information at its disposal and in light of the history of the case, to allow the amendment to add the claim of disability discrimination without hearing the parties.

11.	The chairman was also wrong in not considering the application to amend in conjunction with a hearing to determine whether or not the Originating Application had been presented in time.  The answer to that question, resolving as it must the effective date of termination, was an important factor in determining whether the amendments would be allowed.

12.	In view of the outstanding issue as to time limits I do not consider it appropriate to substitute my own view as to whether the amendment to add a claim of disability discrimination should or should not be allowed.  The question will be remitted to a newly constituted Tribunal with a full panel to be determined together with the issue of the primary time limits.  The appeal is therefore allowed to that extent.