Appeal No. EAT/1105/01

EMPLOYMENT APPEAL TRIBUNAL
AT COURT NO 76, THE ROYAL COURTS OF JUSTICE
THE STRAND, LONDON WC2A 2LL

	At the Tribunal
	On 19 September 2001

Before
HIS HONOUR JUDGE PETER CLARK
MR D J JENKINS MBE
MISS D WHITTINGHAM

MR L A BRANCHETT	APPELLANT

STROUD COLLEGE	RESPONDENT

Transcript of Proceedings

JUDGMENT

INTERLOCUTORY HEARING

Revised

	APPEARANCES

For the Appellant	THE APPELLANT
In Person	

JUDGE PETER CLARK

1.	The Appellant, Mr Branchett, commenced employment with the Respondent College as a lecturer in September 1993.  On 17 April 2001 he presented an Originating Application to the Bristol Employment Tribunal complaining of constructive dismissal, presumably unfair constructive dismissal.  He contended that he had resigned from the employment on 10 April 2001 in response to a series of acts by the Respondent amounting to a repuditary breach of the contract of employment.  The claim is resisted.

2.	At a directions hearing held before Mr A C Tickle, sitting alone on 26 June 2001, the Appellant made application to amend his Originating Application to add a complaint of disability discrimination.  That application was adjourned until the Appellant provided particulars of the alleged discrimination to both the Respondent and the Employment Tribunal.  Further, the parties were ordered to agree a common bundle of documents by 3 September 2001; witness statements were to be exchanged by 17 September and the substantive hearing of the case was fixed for 1-3 October.

3.	On 5 July the Appellant wrote to the Employment Tribunal setting out the nature of his proposed case on disability discrimination; further particulars were ordered on 7 August and on 21 August the Appellant responded.  By a letter dated 24 August the Respondent’s solicitors opposed the proposed amendment and on 31 August, having considered the parties written representations, the Chairman refused the application to amend on the basis that the particulars provided did not support a claim of disability discrimination.  Against that order the Appellant now appeals (the amendment point).

4.	Secondly, he contends that the Respondent has failed to comply with the direction to prepare an agreed bundle by 3 September and that in these circumstances the Notice of Appearance ought to be struck out.  The Chairman refused to make such an order.

5.	Thirdly, he appeals against the Chairman’s order dated 11 September refusing to postpone the hearing fixed for 1-3 October.

6.	Dealing first with the amendment point, the Employment Tribunal has a general discretion to grant or refuse an amendment to an originating application.  Here, the reason for refusing the amendment to add a wholly new cause of action, that is disability discrimination, was that the particulars provided disclosed no such claim.  

7.	Having considered the way in which the claim was put in the Appellant’s letters dated 5 July and 21 August we are unable to conclude that the Chairman’s decision on this matter was perverse in the legal sense.  We bear in mind that we do not have a general power of review of Tribunal orders.  We can only interfere where an error of law is made out. 

8.	We further think that it is not in the interests of the parties that an amendment should be allowed to add a claim which has no prospect of success.  It adds to time delays and expense and is in our judgment disproportionate.  Accordingly we reject the first head of this Appeal.  

9.	Secondly, so far as the direction for an agreed bundle is concerned, the Appellant submitted under cover of a letter of 1 September a list of documents running to some 140 pages.  The response to that letter by the Respondent’s solicitors was in the form of a letter dated 4 September in which they do not indicate any further documents which they require to be added to the bundle.  

10.	On the same day the Appellant wrote to the Employment Tribunal complaining that the Respondent had not complied with the direction as to the trial bundle.  The Tribunal wrote to the Respondent’s solicitors on 6 September pointing out the alleged non-compliance with the direction and requiring them to show cause why the Notice of Appearance should not be struck out.  To that the Respondent’s solicitors replied on 7 September and having considered the correspondence from both parties the Chairman declined to make a strike out order.

11.	We have also had an opportunity to read that correspondence.  Mr Branchett submits that the Respondent’s solicitors have not made it clear whether or not they wish to add any documents.  A sensible reading of the correspondence suggests to an objective reader that they do not propose to add any documents and, subject to some further matters of disclosure, the list submitted by the Appellant can form the basis of the Court bundle.

12.	In these circumstances it was plainly within the Chairman’s discretion not to make the draconian order of striking out the Notice of Appearance, thereby preventing the Respondent from defending this claim.   

13.	Finally, the question of postponement.  Mr Branchett submits that problems over disclosure have meant that he cannot complete his witness statement as required under the Directions Order and will not be in a position to be ready for trial on 1 October and thus has been or will be deprived of a fair trial contrary to Article 6 of the European Convention on the Human Rights.

14.	Again, looking at the matter in the round, we think that that submission fails.  The Chairman has controlled the proceedings thus far in a way which we regard as wholly unexceptionable.  In these circumstances, no point of law having been made out, we must dismiss this Appeal.