Appeal No.	 EAT/908/98

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On  1 November 1998

Before
HIS HONOUR JUDGE PETER CLARK
MR K M HACK JP
MR R SANDERSON OBE

MR J DAVIDSON	APPELLANT

MINISTRY OF DEFENCE	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MISS LANG
(of Counsel)
ELAAS	

	JUDGE PETER CLARK:	 The Appellant, Mr Davidson, was employed by the Respondent and previous Government Departments as an Executive Officer from May 1976 until his dismissal on alleged grounds of inefficiency, that is a reason relating to his capability, on 3 May 1997.

	On 21 July 1997 he presented an Originating Application to the Ashford Employment Tribunal complaining only of unfair dismissal.  He has been represented until today by his trade union official, Mr Fullaway.

	The matter was not listed for hearing pending the outcome of an internal appeal procedure pursued by the Appellant.  Following determination of the internal appeal, application was made on his behalf by letter dated 24 February 1998 for leave to amend the Originating Application to add a complaint of disability discrimination.  The application was opposed.  Leave to amend was refused by a Chairman sitting alone on 29 April 1998.  Against that decision, promulgated with extended reasons on 1 May 1998, the Appellant now appeals.

	The background to the application for leave to amend was, so the Chairman found, as follows.  During September 1997, the Appellant attended a medical examination in the hope of obtaining medical evidence which supported his assertions mentioned in his Originating Application that he suffered from scotopic sensitivity, that is hypersensitivity to light, and from dyslexia.  A report, which we have seen, but the Chairman did not was sent to the Appellant’s trade union on or about 24 September 1997, it supported his case.

	On 28 October the Tribunal wrote to the parties asking them what was the current position in the case and subsequently the case was withheld from being listed, pending the outcome of the internal appeal procedure.  The first appeal hearing took place on 7 October 1997, the final hearing on 27 January 1998.

	It was following the outcome of that appeal that the application was made by letter of 24 February for leave to amend the Originating Application.

	Having considered the submissions made on behalf of the parties, and considered the guidance set out in judgment of Mr Justice Mumery in Selkent Bus Co. Ltd -v- Moore [1996] ICR 836, the Chairman concluded that the Appellant was seeking to raise a new cause of action, not previously raised in the Originating Application, but it was raised nine months after the employment ended and five months after the Appellant and his advisers became aware, as a result of the medical report received in September 1997, that he had a potential cause of action under the disability discrimination legislation, and thus fell outside the primary three month limitation period, and that there was no excuse for the delay in making the application.  Taking those factors into account and balancing the prejudice to both parties if the amendment was either allowed or disallowed, he refused the application.

	Against that decision the Appellant now appeals and today has the advantage of representation by Miss Lang of Counsel under the ELAAS pro bono scheme.  She has put before us draft amended grounds of appeal and a detailed skeleton argument.

	We think the principle point which requires full inter partes argument before this Tribunal, relates to the manner in which the Chairman dealt with the way in which the original Form IT1 was framed.  In paragraph 4 of his reasons, he says this:

“.... At paragraph 5 of the “Statement of Case”, annexed to the Originating Application, there was a reference to Mr Davidson’s health problems which were described as hypersensitivity to light and dyslexia.  But there was no mention at all in the Originating Application of disability discrimination:  the matter was mentioned simply as something which supported a claim of unfair dismissal.”

	We have taken into account the recent decision of the Court of Appeal in Jesuthasan -v- Hammersmith & Fulham London Borough Council [1998] IRLR 372, overturning an earlier decision of this Tribunal refusing a part time worker leave to amend the Originating Application to add claims for unfair dismissal and a redundancy payment to an existing and timeous claim of racial discrimination in the light of the House of Lords decision in R -v- Secretary of State for Employment, ex -parte Equal Opportunities Commission [1994] IRLR 176.  In the course of giving judgment in that case, Lord Justice Mumery pointed out that no further factual enquiry on the point was required, that the proposed amendments did not plead any new facts, but simply attached two labels to the facts already pleaded in an Originating Application issued within three months of dismissal.  

	To this extent we see echoes of the earlier decision of this Tribunal in Home Office -v- Bose [1979] ICR 481.  The point that strikes us is that the question of the issue of the Plaintiff’s medical condition was fully and fairly raised as a factual issue in the original unfair dismissal 
complaint and thus we think it may be arguable that the underlying factual basis for the new cause of action already appears in the original pleading.

	In these circumstances, we shall allow the matter to proceed to a full hearing and we shall grant leave to the Appellant to amend his Notice of Appeal in the form of the draft grounds put before us today by Miss Lang.

	The only directions we need give are that this case should be listed for 1/2 a day, Category C.

	Skeleton arguments to be exchanged and lodged with EAT not less than 14 days before the date fixed for the hearing.