Appeal No. EAT/331/2000

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 27 March 2000

Before
HIS HONOUR JUDGE PETER CLARK
MISS A MACKIE OBE
MR G H WRIGHT MBE

MR P WRIGHT	APPELLANT

(1)	MITIE CLEANING (NORTH) LTD 
(2)	 MR M CROMPTON 
(3)	 MR McCARTHY	RESPONDENTS

Transcript of Proceedings

JUDGMENT

INTERLOCUTORY HEARING

Revised

	APPEARANCES

For the Appellant	MR C BENSON
(Representative)
Salford Law Centre
498 Liverpool Street
Salford
M6 5QZ	
For the Respondents	NO APPEARANCE OR
REPRESENTATION
BY OR ON BEHALF OF
THE RESPONDENTS	

	JUDGE PETER CLARK:	These proceedings were commenced in the Manchester Employment Tribunal by the Applicant, Mr Wright against (1) Mitie Group Plc (2) Mike Crompton (3) Mr McCarthy.

1	In his Originating Application the Applicant complains of unfair dismissal.  He states that he was employed from 6 May 1998 until 23 July 1999.  In his particulars of complaint he states that he commenced work as a part-time cleaner with the First Respondent on 25 March 1998 and then began an additional second job with them as a storeman on 8 May 1998.  It is his case that, acting on the assurance of his line managers, Ann Clarke and Rita, that his job as a storeman would not be affected if he handed in his notice terminating the cleaning job with effect from 23 July 1999.  However, on 23 July, he contends that he was told by Ann Clarke that Mike Crompton, the Second Respondent, had given her a message that, in effect, if he gave up the cleaning job he would have to give up the storeman job as well.

2	The Applicant then did two weeks’ jury service.  Thereafter he claims that he wrote to Mr Crompton’s manager, the Third Respondent, Mr McCarthy, on 20 August and 7 September, but received no reply.

3	He claimed that in these circumstances he had been unfairly dismissed.

4	By a Notice of Appearance dated 2 November 1999 the First Respondent denied receiving any letters from the Applicant, or being informed of his doing jury service.  Their case was that the Applicant had decided not to continue as a storeman having relinquished his cleaning post.  The dismissal was denied.

5	The case was listed for hearing on 6 March.  On 29 February 2000 the First Respondent faxed both the Employment Tribunal and the Applicant’s representative, Mr Benson of the Salford Law Centre, a revised Notice of Appearance.  That is a more detailed response than the original form IT3 and differs factually.  For example, it is now accepted that the Applicant wrote to the Respondent on 26 July, 20 August and 7 September and that the Respondent replied by letters dated 30 July and 9 September.

6	A Chairman, Mr Leahy, granted leave to the Respondent to amend the Notice of Appearance in those terms by a letter dated 1 March.

7	Mr Benson, meanwhile, had faxed the Tribunal opposing the amendment.  That fax does not appear to have been placed before the Chairman before he made his order granting the Respondent leave to amend.

8	There then followed somewhat acrimonious correspondence between the Tribunal and the Applicant’s representative.  We note that on 1 March the Chairman responded to a complaint by Mr Benson that his opposition to the amendment had not been considered before the order granting leave to amend was made, and it is clear from that letter, which is at pages 30 to 31 of our bundle, that the Chairman reconsidered his earlier decision in the light of the objections taken by Mr Benson and affirmed that original decision.

9	The upshot was that the Applicant’s representative, having initially opposed any postponement of the hearing fixed for 6 March, then applied for an adjournment of that hearing.  That application was granted and the hearing has been re-fixed for 30 March.  

10	By a Notice dated 21 March the Applicant now appeals against the Chairman’s order granting leave to the Respondent to amend the Notice of Appearance.

11	In support of the appeal Mr Benson has taken us to the decision of this Tribunal, Mummery J presiding in Selkent Bus Co Ltd v Moore [1996] ICR 836.  That was a case concerned with applications for leave to amend the Originating Application.  Mr Benson particularly refers to this passage at page 842 H of Mummery J’s judgment, where he said:

“It is however, common ground that the discretion to grant leave is a judicial discretion to be exercised in a judicial manner, i.e., in a manner which satisfies the requirements of relevance, reason, justice and fairness inherent in all judicial discretions.”

12	It is submitted that this order was made without regard to the time limit for putting in a Notice of Appearance; that is 21 days, and that the timing and manner of the amendments caused hardship to the Applicant who would be required to take further time off work in order to accommodate the new hearing date fixed for 30 March.  We are asked to allow this appeal and to strike out the amended Notice of Appearance.

13	We return to Selkent.  At page 843 D to E, Mummery J said this:

“In other cases an industrial tribunal may reasonably take the view that the proposed amendment is not sufficiently substantial or controversial to justify seeking representations from the other side and may order the amendment ex parte without doing so.  If that course is adopted and the other side then objects, the industrial tribunal should consider those objections and decide whether to affirm, rescind or vary the order which has been made.”

That is what happened in this case.  It is clear that the Chairman reconsidered his original order in the light of the objections taken on behalf of the Applicant and affirmed the earlier decision.

14	It seems to us that the editors of Harvey on Industrial Relations and Employment Law, are correct at paragraph T 356 in this general statement of the practice:

“A notice of appearance may generally be amended, either before or at the hearing, but only with the leave of the tribunal.  The guiding principle is that it is desirable that tribunal proceedings should be as flexible as possible, having regard to the interests of both parties and the justice of the case.  These criteria would not be met if one party were to be precluded from presenting his case in the manner he thinks most appropriate by too strict an adherence to the rules of pleading.  Accordingly, a respondent will not normally be prevented from amending his notice of appearance unless, as will be seen below, the application is made at a late stage of the proceedings.  If, as a result of any such amendment, a postponement or adjournment of the hearing is necessary, the respondent may be ordered to pay the costs incurred by the other party (see r 12(4)) [of the Employment Tribunals Rules of Procedure].”

15	It is clear to us that the Respondent failed to properly set out the nature of its case in the original Notice of Appearance.  They sought to remedy that by applying for leave to amend one week before the date fixed for the hearing.  The nature of the proposed amendment is to correct factual inaccuracies in the original Notice of Appearance and to plead the case more fully in law.  

16	It seems to us that that is a helpful course to take in the interests of justice generally and in the interests of the Applicant, who should know what case he has to meet at the full hearing.  This was not a late amendment.

17	However, insofar as the Applicant has been put to additional cost as a result of the need for a postponement, it will be open to him to make application for the costs thrown away at the full hearing.  That said, we can see no objection to the amendment which would render the Chairman’s decision to allow the amendment perverse.  That is the hurdle which Mr Benson has to surmount and in our judgment he has failed to do so.  There is no error of law made out in this appeal and consequently it must be dismissed.