Appeal No. UKEAT/0740/03/SM

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 7 November 2003

Before
HIS HONOUR JUDGE BIRTLES
(SITTING ALONE)

MR P M GORDON	APPELLANT

NACRO	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR P M GORDON
(the Appellant in Person)	
For the Respondent	MR GLYN
(of Counsel)
Instructed by:
Messrs Webster Dixon Solicitors
21 New Fetter Lane
London EC4A 1AW	

HIS HONOUR JUDGE BIRTLES

1	This is an appeal from the decision of an Employment Tribunal sitting in London (South) on 30 January 2003.  The Chairman was Ms M E Stacy, the members were Ms J G Wright and Ms V Stansfield.  The unanimous decision of the Tribunal was that:

(i)	“The Respondent is ordered to pay the Applicant the sum of £602.76 by way of damages for breach of contract;
(ii)	The Respondent is ordered to pay to the Applicant the sum of £120.55 which is owed to the Applicant as an unauthorised deduction in respect of holiday entitlement; and,
(iii)	The Applicant’s complaint of unfair dismissal is dismissed.”

No issue arises in respect of points (i) and (ii) of the Tribunal’s Decision.

2	The Employment Tribunal’s Decision is in conventional form and set out in its Extended Reasons.  At paragraphs 1, 2 and 3 it considered the issue of amendment to the Originating Application (I will return to that later).  Paragraphs 4 through to 15 set out its findings of fact and paragraphs 16 through to 19 set out its conclusions.

3	For the purposes of this judgment it is sufficient to read paragraphs 1, 2 and 3 of the Extended Reasons:

1	“This matter came before us on the issues of unfair dismissal, breach of contract and holiday entitlement, issues which were clarified and agreed at the outset of the hearing.
2	Since the bulk of the claim appeared to be unfair dismissal the Tribunal considered that it was appropriate to hear the Respondent's evidence first.  There was an agreed bundle of documents and the Tribunal heard live evidence from Valerie Todd (HR Director) and Paul Cavadino (Chief Executive and former director of Policy, Race and Resettlement Directorate) both of whom had prepared statements which they read to the Tribunal, answered supplementary questions in chief, were then cross-examined by the Applicant and finally answered questions from the panel.  After the conclusion of the Respondent's evidence the Applicant commenced his evidence-in-chief.  His written statement included reference to allegations of race and sex discrimination.  The Applicant explained, on enquiry from the Chairman, that he wished to rely on matters of sex and race discrimination as complaints and primary facts for the Tribunal to determine in addition to the issues clarified at the outset of the hearing. 
3	The Tribunal considered the matter as an application to amend the originating application.  After hearing representations from both parties the panel did not consider it appropriate to grant leave to add new causes of action which were being raised considerably outside the primary time limit and part way through the hearing after the conclusion of the Respondent's evidence and after the issues had been agreed with both parties at the commencement of the hearing.  The Tribunal considered that the issues of race and sex discrimination had not been raised in the Originating Application.  Box 1 of the Applicant's Originating Application refers to unfair dismissal and constructive dismissal.  Box 11 refers to attached documents, the first of which outlined his complaint.  In that document there was reference to an alleged breach of the Equal Opportunities Policy as a breach of contract claim and an allegation of harassment without reference to discrimination legislation or any of the prohibited forms of discrimination in the field of employment.  The Tribunal did not consider that the particulars of the Applicant's complaint included either race or sex discrimination as a cause of action and a complaint of race or sex harassment had not been raised previously.  No explanation as to why these matters had not been raised earlier was forthcoming from the Applicant.  It was also noted by the Tribunal that, at one stage, the Applicant had the assistance of his trade union and their specialist trade union solicitors, who had advised him about his case, and yet the issues had still not been raised before the conclusion of the Respondent's evidence during the hearing.  It would not be just and equitable to permit an extension of time to allow the amendment and it would require the Respondent's witnesses to be recalled to answer the new allegations.  The case therefore proceeded on the basis of the matters identified at the outset of the hearing namely unfair dismissal, breach of contract and holiday entitlement.”

4	I should also add that the Tribunal went on to hear the Applicant’s evidence and its conclusions, in relation to unfair dismissal, were that Mr Gordon had been dismissed for some other substantial reason, namely the personality clash between the Applicant and his manager; and his failure to accept suitable alternative employment elsewhere within the Respondent’s organisation.  The Tribunal went on to consider section 98 (4) and decided that the dismissal was a fair one: see paragraph 16 of the Decision.

5	The date of the dismissal was a notice of termination given on 31 March 2002 with an effective date of termination of 30 April 2002: see paragraph 15 of the Decision.

6	From that Decision Mr Gordon has appealed and his grounds of appeal are set out in two Notices of Appeal which appear at pages 27 and 29 of the bundle.  The grounds set out at page 27 are:

“The Tribunal has misdirected itself in law because the tribunal’s findings are in conflict with the evidence under the Race Relations Act 1976, the Sex Discrimination Act 1975, the Employment Rights Act 1996.”

The Notice of Appeal at page 29 says this:

“The EAT have established guidelines on the presentation of evidence which is admissible, if probative on one or more issues, in Aberdeen Steak Houses Group v Ibrahim [1988] ICR 550.  The ET findings are in err with the evidence of the IT1 claim that was presented to the ET for unfair and constructive dismissal, breach of contractual obligations of the Employment Rights Act, and the Equal Opportunities Policy by unlawful discrimination.”

Mr Gordon has amplified those grounds in a letter to the Tribunal dated 5 September 2003, pages 30 to 33 of the bundle.  It is not necessary for the purposes of this judgment to read that letter.

7	I have been assisted today by the very helpful submissions made by Mr Gordon and by his Skeleton Argument; and I am grateful to him and to Mr Casper Glyn, who appeared on behalf of the Respondent.

8	In essence, the Appellant is making two submissions: first, that he was prevented from raising a free-standing independent claim of race and sex discrimination; second, he was prevented from raising the complaints of race and sex discrimination as part of his constructive dismissal claim.

9	In answer to that the Respondent says, firstly, that the Employment Tribunal Decision on excluding free-standing complaints of race and sex discrimination was correct in law and, secondly, that, as has now emerged at this hearing, the witness statement of Mr Gordon was read in full by him and clearly therefore must have been taken into account by the Employment Tribunal.  In fact, the Employment Tribunal rejected any claim for constructive dismissal because they found there had been an actual dismissal by the notice of termination dated 31 March 2002 to expire on 30 April 2002; and so the issue of constructive dismissal was decided and rejected by the Employment Tribunal.
The Law

10	The leading authority on the power of an Employment Tribunal to amend an Originating Application is the well-known case of Selkent Bus Co Ltd v Moore [1996] IRLR 661.  In that decision Mummery J (as he then was) set out, as guidelines, practice and procedure for amendments of Originating Applications: see paragraphs 18 through to 24 of the Decision.  It is not necessary for me to set them out in this judgment.  I do, however, refer to paragraph 23 (b) which is headed ‘The Applicability of Time Limits’ where Mummery J said this:

“If a new complaint or cause of action is proposed to be added by way of amendment, it is essential for the Tribunal to consider whether that complaint is out of time and, if so, whether the time limit should be extended under the applicable statutory provisions, e.g., in the case of unfair dismissal, section 67 of the Employment Protection (Consolidation) Act 1978.”

11	That position was reaffirmed as recently as this year by the Court of Appeal in Robertson v Bexley Community Centre [2003] IRLR 434.  Again, it is not necessary for me to refer to the judgment, save as to cite paragraph 25 of the judgment of Auld LJ where he said this:

25	“It is also of importance to note that the time limits are exercised strictly in employment and industrial cases.  When tribunals consider their discretion to consider a claim out of time on just and equitable grounds there is no presumption that they should do so unless they can justify failure to exercise the discretion.  Quite the reverse.  A Tribunal cannot hear a complaint unless the applicant convinces it that it is just and equitable to extend time.  So, the exercise of discretion is the exception rather than the rule.  It is of a piece with those general propositions that an Appeal Tribunal may not allow an appeal against a Tribunal’s refusal to consider an application out of time in the exercise of its discretion merely because the Appeal Tribunal, if it were deciding the issue at first instance, would have formed a different view.  As I have already indicated, such an appeal should only succeed where the appeal tribunal can identify an error of law or principle, making the decision of the Tribunal below plainly wrong in this respect.”

12	I turn to my conclusions.  First, in my judgment there is no error of law in the approach of the Employment Tribunal in its refusal to extend time on just and equitable grounds to permit free-standing claims for race and sex discrimination to be brought in this case.  In my judgment, a common sense approach to the reading of the Originating Application, Boxes 1 and 11, make no reference to a free-standing claim for sex or race discrimination.  Neither do I find it clearly set out in the Appellant’s letter to the Employment Tribunal of 23 August 2002, pages 13 through to 17 of the bundle.  That letter was in effect a reply to the Respondent’s Notice of Appearance.

13	Second, as the Employment Tribunal pointed out, in paragraphs 1 and 3 of its Decision, it had agreed with both parties at the beginning of the hearing what the issues were that it was to decide upon.  Mr Gordon represented himself and, while I accept that there are always limitations on an Applicant in person, it is quite clear to me that Mr Gordon is an articulate man and the point of agreeing the issues in advance is of course to ensure that all those issues are canvassed and decided upon by the Tribunal.  It would have been open to him at the very beginning of the hearing to have raised the issues of free-standing claims of race and sex discrimination.

14	Third, as the Tribunal also point out, the issue became live only and for the first time when Mr Gordon started to give his evidence in chief.  At that point the Respondent had completed its evidence and if the free-standing claims had been raised at that time and permitted to be raised as an amendment to the Originating Application, it quite clearly, in my view, looking at the case as a whole, would have required an adjournment to enable the Respondents to meet the case that was now being raised against it in respect of race and sex discrimination.

15	For those reasons, as fully set out in paragraphs 1-3 of the Extended Reasons of the Employment Tribunal, I have no doubt whatsoever that the Employment Tribunal were fully justified in deciding it was not just and equitable to extend time to permit Mr Gordon to raise free-standing issues of race and sex discrimination at that point in the case.  I can find no error of law on the part of the Tribunal.

16	The second way Mr Gordon put his appeal was that he had been prevented from giving evidence of sex and race discrimination, as set out in his witness statement and this was relevant to his claim for constructive dismissal.

17	It seems to me that answers to that are two-fold.  First, as he has told me today, he was allowed to read his witness statement and I can find nothing in the papers or the submissions made to me which suggests that the Tribunal did not listen and take account of that evidence.  But second, and more importantly, the Tribunal rejected a claim for constructive dismissal because as at 31 March 2002 Mr Gordon remained in employment, under a contract of employment with this employer; so he had not left in response to any fundamental breach of his contract of employment.

18	On 31 March 2002 he was dismissed by a notice of termination which was to expire on 30 April 2002.  That is what happened in fact.  Once there is an actual dismissal it is not open after that date for an employee to leave and claim constructive dismissal.  In fact, Mr Gordon claims the constructive dismissal was in January 2002.  However, he remained in employment until his dismissal.  The Tribunal, in my judgment, were also fully justified in finding upon the evidence they heard that that was what had happened.  There being an actual dismissal no claim for constructive dismissal can therefore arise and it was therefore inevitable that Mr Gordon’s claim for constructive dismissal would be dismissed.

19	For these reasons the appeal is dismissed.