Appeal No. UKEAT/0499/10/RN

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 13 July 2011

Before
HIS HONOUR JUDGE RICHARDSON
BARONESS DRAKE OF SHENE
MR B M WARMAN

MS P A RICHARDSON	APPELLANT

HSBC BANK PLC	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MR JOE SYKES
(Representative)
Employment Lawyers
107 Fleet Street
London
EC4A 2AB	
For the Respondent	MS CLAIRE McCANN
(of Counsel)
Instructed by:
Allen & Overy LLP
One Bishop’s Square
London
E1 6AD	

SUMMARY
UNFAIR DISMISSAL
Reason for dismissal including substantial other reason
Polkey deduction

The Tribunal assessed compensation for unfair dismissal without giving correct consideration to the questions (1) whether the Respondent adequately considered whether it could offer the Claimant alternative employment, (2) whether the Respondent selected the Claimant fairly for redundancy.  Case remitted for the Tribunal to consider these questions and then to consider compensation afresh in the light of its conclusions upon them.

Late application to amend Notice of Appeal to argue an additional point – refused by Registrar – interlocutory appeal dismissed.

HIS HONOUR JUDGE RICHARDSON 

1.	This is an appeal by Ms Pamela Richardson (“the Claimant”) against part of a judgment of the Employment Tribunal sitting in London East (Employment Judge Gilbert presiding) dated 20 July 2009.  The Tribunal dismissed claims of disability discrimination and race discrimination which she brought against her employers HSBC Bank plc (“the Respondent”).  It upheld her claim of unfair dismissal but awarded her only limited compensation.

2.	This hearing is taking place nearly 2 years after the Tribunal’s judgment.  This is because an initial Notice of Appeal was found to disclose no reasonable ground for appealing; and a fresh Notice of Appeal, permissible under rule 3(8) of the Employment Appeal Tribunal Rules, was also found to contain many arguments which disclosed no reasonable grounds for appealing.  Two grounds were permitted to go forward to this hearing. 

3.	These grounds both relate to the Tribunal’s finding of unfair dismissal.  The Tribunal, as we will see, found that the Claimant’s dismissal was unfair by reason of a failure to follow the required statutory procedure and a failure in any event to follow a fair procedure.  It is argued that the Tribunal erred in law in two respects: (1) failing to consider whether the Respondent made reasonable attempts to find alternative employment for the Claimant, effectively placing upon her an onus to suggest such employment; (2) failing to consider whether her selection for redundancy was fair in all the circumstances.  If these errors are established, it is then argued that the Tribunal’s assessment of compensation will have to be revisited.

4.	There has also been a late application on behalf of the Claimant to amend the Notice of Appeal to argue a third point, also relating to unfair dismissal. That application was made on 4 July and refused by the Registrar on 7 July.  By letter dated 8 July the Claimant has appealed that refusal.  I have directed that this interlocutory appeal be listed with today’s hearing.  After discussion with the parties I have directed that the interlocutory appeal be referred to the full constitution sitting today (see rule 21(1) of the Employment Appeal Tribunal Rules 1993).   We have today considered as a full Tribunal both the appeal and the question of permission to amend.

5.	The hearing before the Tribunal took 9 days, and the Tribunal’s reasons run to some 66 pages.  Much of the reasoning, however, relates to issues of disability and race discrimination with which we are no longer concerned.  We can therefore summarise the findings and reasoning of the Tribunal on the question of unfair dismissal relatively briefly.  When we have done so we will consider in turn the two grounds with which the appeal was concerned from the outset and then the application for permission to amend.

6.	It is relevant to note, as we turn to the facts, that the Claimant was dismissed at a time when the law of unfair dismissal included section 98A of the Employment Rights Act 1996, inserted by the Employment Act 2002 and repealed subsequently by the Employment Act 2008.  This in effect required an employer, if the dismissal was to be fair, to comply with a statutory procedure, generally the Standard Dismissal and Disciplinary Procedure (“the SDDP”) set out in Schedule 1 to the Employment Act 2002.

The background facts
7.	The Claimant’s employment began on 22 January 1991.  From 1996 onwards she was employed at the Respondent’s Regional Treasury Centre in London.  By 2005 she worked on the RTC and Emerging Markets Desk (“the Desk”) within an area known as the Customer Services, Deal Processes and Confirmations area.  She was not highly paid: her gross pay was of the order of £23,000 per annum.

8.	The Claimant’s role had developed over the years.  By 2000 she was emerging markets payment clerk.  By 2003 her main role was liquidity clerk although she also continued to work on emerging markets payments.  The Tribunal noted that she had been willing to work unsociable hours to learn a new system, and that her flexible approach and willingness to work additional hours was much appreciated by the Respondent.   In 2005 she trained in some aspects of customer services.

9.	In 2005 a large part of the work of the Desk was transferred to Malaysia.  This left the Claimant and Mr Mark Hollands working on the Desk.  In October 2006, following the transfer of yet further work abroad, the Desk was moved from the Customer Services Area to a different area, Central Processing Europe (“CPE”), under the supervision of managers there.  

10.	Early in 2007 the Respondent decided that it was necessary to reduce costs and operations by making head count reductions in all business areas.  In March 2007 a senior manager, Mr Dix, decided that the Respondent could function without the Claimant and Mr Hollands by moving their tasks elsewhere; he sent an email to a human resources manager indicating that they should be considered for redundancy.  A report in April 2007 supported this conclusion, recommending that both roles could be absorbed in their entirety into other departments.  The report also indicated that full and accurate documentation of current procedures would first be necessary, and that there was scope for efficiency improvements.

11.	As the Tribunal found, the Respondent considered the Claimant and Mr Hollands to be at risk of redundancy from March 2007, although the Claimant did not know it.  On 29 May 2007 Mr Hollands was put on garden leave during a redundancy consultation; subsequently he was made redundant.  

12.	Some months passed, however, before the Claimant was made redundant.  She was retained while others were cross-trained (to use the Tribunal’s phrase) in the work of Mr Hollands and herself.  She was not cross-trained in any other work; the Tribunal found that she was “indispensable” on the Desk during June and July, with increased workload and responsibility now that Mr Hollands had left and others were inexperienced.  

13.	By July 2007, however, the Respondent decided that the Claimant should be notified at a meeting that she was at risk of redundancy.   On 1 August she was asked to attend a meeting with Mr Dix for this purpose.  She was given no forewarning and no opportunity to bring anyone with her. She was told that the majority of the tasks she undertook would be moved elsewhere.  She was told that she need not attend work after that; and she was given a letter and a draft compromise agreement.  The letter said that her position was at risk of redundancy and a 30 day consultation period was commencing.  It said that “if no alternative role was identified” it was likely that her employment would end at that date.

14.	The Respondent alleged, as part of its case, that the Claimant was herself seeking to be made redundant.  The Tribunal did not accept that this was so.  The Tribunal found that, although she was overwhelmed by her workload in June and July 2007, she did not desire the end of her career with the Respondent: she had a son at a fee-paying school and this was not an option which she could consider.

15.	At this time – August 2007 – the proposals to shift the work of the Desk were still at an early stage.  For some months two employees from the CPE function who had recently trained to do the work (Ms Carter and Ms Garton) took over the work of the Desk.  Ms Carter was a temporary employee, newly appointed.  Also involved was another employee, recruited to CPE from Malaysia in about August 2007.  The Tribunal found that by early 2008 only residual functions of the Desk were outstanding.  Others had been transferred elsewhere.  Those residual functions were undertaken by the CPE employees.

16.	The Claimant did not sign the compromise agreement.  She did, however, remain away from work.  Quite apart from the request to her to do so, she had a booked operation and was then certified sick by reason of stress.   During this period she was told (in a letter dated 3 September) that a manager had attempted to contact her several times about redeployment.  Details of vacancies were enclosed with that letter; and the Claimant was asked for an up-to-date CV.  

17.	On 10 September, the Respondent wrote to her again.  The Tribunal found that this letter was intended to be, and was, a step 1 letter for the purposes of the SDDP.  The letter invited the Claimant to a meeting on 14 September “to discuss your potential redundancy as, in the absence of an alternative role for you, it is likely that your employment will cease.”  The Claimant declined to attend, citing her continued ill health and enclosing a doctor’s letter.  She asked for any decision to be communicated to her by post.

18.	As the Tribunal found, no meeting took place on 14 September.  By letter dated 21 September the Respondent confirmed to the Claimant that she was dismissed on grounds of redundancy.

The Tribunal’s conclusions
19.	The Tribunal found the dismissal to be unfair because the Respondent did not hold a meeting, in breach of the requirements of Step 2 of the SDDP: see paragraph 135 of the Tribunal’s reasons.  There is no cross-appeal against this finding, and it is not necessary to set out the Tribunal’s detailed reasoning for its conclusion.

20.	The Tribunal next found that the Claimant’s dismissal was for a reason relating to redundancy, accepting the Respondent’s case that it was because the requirements of the Respondent’s business where she was employed for employees to carry out work of the kind which she did were expected to cease or diminish: see paragraph 136 of the Tribunal’s reasons.

21.	The Tribunal also found, however, that the Claimant’s dismissal was procedurally unfair quite apart from the fact that the SDDP was not followed.  A fair procedure would have involved the Respondent in postponing the meeting on 14 September and giving the Claimant a reasonable opportunity to attend on a subsequent occasion, perhaps at a location she could manage; or at the very least to make submissions: see again paragraph 136 of the Tribunal’s reasons.  

22.	The Tribunal also found, however that the Claimant would have been dismissed by the Respondent “by no longer than a month after 21 September 2007”.  We will set out the reasoning of the Tribunal for this conclusion, which is to be found again in paragraph 136 of the reasons.

“If the Respondent had followed a fair procedure prior to dismissing the Claimant it would have held a meeting on 14 September.  It would at that meting have decided to postpone it to give the Claimant a reasonable opportunity to attend.  It would also have considered whether the meeting could have been held elsewhere.  It would also have invited the Claimant to make representations in writing if she was not going to be able to attend the adjourned meeting for consideration at the adjourned meeting.  The Tribunal has found it is unlikely the Claimant would have attended an adjourned meeting but it is likely she would have made representations to be considered at such an adjourned meeting.  The Tribunal has found this because the Claimant has had no difficulty in communicating in writing or on the telephone during her illness.  She submitted a grievance by letter after she had her day surgery.  After she was dismissed she consulted solicitors and instructed them on her behalf.  However whether she attended a meeting or made representations for consideration at the meeting the Tribunal has found it is very unlikely those representations would have been about alternative work or about the pool for consideration.
Any representations the Claimant made would have contested the redundancy situation existing at all.  The Tribunal finds this because the Claimant at no time prior to dismissal or after it, by use of the modified grievance procedure, until in her witness statement in the Tribunal made any suggestions about alternative work or submitted a CV.  It was only in her witness statement she for the first time suggested alternative work on the amendment desk.  Further the Tribunal has found that at no time prior to giving evidence did she suggest that she should have been retained on the CPE desk or that another employee should have been ‘bumped’.  The Tribunal has therefore found that if the Respondent had held a further meeting and at that meeting considered whether there was a redundancy situation and whether alternative work had been explored it would have found that there was redundancy situation and alternative work had been explored with the Claimant but that she had failed to engage in the process.  It would have then have gone on to consider whether to dismiss and if so whether in reaching a decision to dismiss that was a reasonable decision.  It would then have decided to dismiss the Claimant.  The Tribunal has found the Claimant would have been dismissed by no longer than a month after the 21 September 2007.  The Tribunal finds the breach of the Statutory Dismissal Procedure by failing to hold a meeting and in breach of the general requirements was a breach which at the end of the day made very little difference.  The Claimant was not engaging in the process of finding alternative work and would not have done so if she had been given the opportunity to attend a meeting at a later date or make representations to it.  In the circumstances the Respondent is ordered to pay to the Claimant compensation made up of a compensatory award of one month’s net wages together with £300 for loss of statutory rights and a 10% uplift.  The Respondent is a large employer and while compliance with the process may have made little difference it should have complied.  The Claimant has no entitlement to a basic award as she has already received a redundancy payment.”

Suitable alternative work
23.	On behalf of the Claimant, Mr Sykes first submits that the Tribunal failed to consider whether the Respondent made reasonable attempts to find alternative employment for the Claimant, effectively placing upon her an onus to suggest such employment.  He relies on Williams v Compair Maxam [1982] IRLR 83 at paragraph 19.  He submits that the reasoning of the Tribunal effectively placed upon the Claimant a burden to pursue the question of alternative employment (which was an error of law) and to do so at a time when she was ill (which was unjust).  He points out that the only reference to the sending of any vacancy list was on 3 September 2007; he says that this was a vacancy list only for managerial jobs, many of which were past the date for application.  If the Tribunal had considered this matter, it would have been bound to hold that no reasonable attempts were made to find alternative employment; and would then have been required to factor this into its findings on the question of compensation.

24.	On behalf of the Respondent, Ms McCann submits that the findings of the Tribunal were sufficient to deal with the question of alternative employment.  She refers to the letters dated 1 August 2007, 3 September 2007 and 10 September 2007 which we have already summarised in this judgment.  She says that no particular issue was raised relating to alternative employment in the claim form or in the Claimant’s witness statement, or by solicitors when the Claimant instructed them.  She points out that the duty of an employer to search for suitable alternative employment does not require the employer to take every conceivable step, but only reasonable steps: see Quinton Hazell Ltd v Earl [1976] ICR 296 and British United Shoe Machinery Co Ltd v Clarke [1978] ICR 70.  The “range of reasonable responses” test is applicable; and the Respondent did sufficient to meet this test.  Ms McCann refers to Seddington & anr v Virgin Media Ltd [2009] UKEAT/0539/08 for the proposition that inaction by a claimant is a material consideration for a Tribunal and for its observations, in paragraph 15, on the burden of proof.

25.	On this part of the case, our conclusions are as follows.  

26.	In Compair Maxam the Appeal Tribunal set out principles which are of general application to the handling of redundancies.  They were fashioned in the context of cases where employees were represented by an independent trade union; but they are widely accepted as relevant, with appropriate adjustments, to other cases.  The fifth principle is

“The employer will seek to see whether instead of dismissing an employee he could offer him alternative employment”

27.	In this case, where the Tribunal found that the dismissal was in any event unfair by operation of section 98A(1), it remained important to consider whether the Respondent took reasonable steps to see if it could offer the Claimant alternative employment.  It was relevant to compensation. 

28.	The principles upon which compensation was assessed in such cases during the period when section 98A was in force were expounded by the Appeal Tribunal (Elias P presiding) in Software 2000 v Andrews [2007] ICR 825 at paragraph 54.  It will suffice for the purposes of this judgment to cite the first two heads:

“(1) In assessing compensation the task of the tribunal is to assess the loss flowing from the dismissal, using its commonsense, experience and sense of justice.  In the normal case that requires it to assess for how long the employee would have been employed but for the dismissal.
(2) If the employer seeks to contend that the employee would or might have ceased to be employed in any event had fair procedures been followed, or alternatively would not have continued in employment indefinitely, it is for him to adduce any relevant evidence on which he wishes to rely.  However, the tribunal must have regard to all the evidence when making that assessment, including any evidence from the employee himself.  (He might, for example, have given evidence that he had intended to retire in the near future.)”

29.	In Seddington the Appeal Tribunal (Underhill P presiding) considered how this guidance applied in a case where the issue was whether the employee would have found and accepted alternative employment.  He said:

“The burden may indeed be on him to raise the issue (if the employee has not) – that is, to assert that there was no suitable employment that the employee could or would have taken – and he will also have to provide appropriate evidential support for that assertion: the basic facts about alternative employment will be within his knowledge and not – at least not always or not completely – within the employee’s.  But if he raises a prima facie case to that effect, it must, it seems to us, be for the employee to say what job, or kind of job, he believes was available and to give evidence to the effect that he would taken such a job: that, after all, is something which is primarily within his knowledge.  To the extent that any uncertainty about the position is the result of the absence of evidence which the burden was on the employee to supply, then it would be unfair for that uncertainty to be deployed against the employer.”

30.	In our judgment the Employment Tribunal’s reasoning does not adequately address this issue.

31.	In the first place the Tribunal appears to have considered the issue in the context of the question whether holding a meeting would have made any difference: see paragraph 136. This is the wrong starting point.  The Respondent had known for many months that the Claimant was potentially to be made redundant.  On the face of it, there was a lengthy period during which alternative employment could have been considered for her.  She was, as the Tribunal found, a long-serving employee who had proved flexible and hard working in the past and who undertook a substantial workload in June and July.  She was not a highly paid employee.  The Tribunal ought to have considered whether it was unreasonable, when her redundancy was in prospect and others were being “cross trained” to take over the remaining work, to postpone consideration of alternative employment until 1 August.  Moreover, having shouldered a heavy workload in June and July and having been informed quite suddenly of her redundancy at the beginning of August, she was off work for an operation and then with stress in August and September.  The Tribunal ought to have considered whether it was unreasonable to consider her for alternative employment only for a short period.  

32.	In the second place, the Tribunal does not seem to have proceeded on the basis that it was for the Respondent to place evidence before it on the question whether there was suitable alternative employment for the Claimant.  This was evidence for the Respondent to produce, as Seddington makes clear, since it was within the knowledge of the Respondent.  Although the Tribunal makes reference to the letters of the Respondent stating that there was no alternative employment, there are no adequate findings on this question.

33.	We are not at all impressed by the evidence to which Ms McCann pointed concerning the availability of alternative employment.  The list appended to the letter dated 3 September consisted mainly of specialist or management jobs.  The date of application had passed for many of them.  The Respondent, however, as its response form makes plain, is an organisation with 40,000 employees.  We find it difficult to suppose that the list sent to the Claimant was really all that could have been done to help a long-serving employee, especially given that she was not highly paid and had proved flexible in the past.  Ultimately, however, these will be matters for the Tribunal on remission.

Fair selection
34.	Mr Sykes then submits that the Tribunal has failed to consider whether the Claimant’s selection for redundancy was fair in all the circumstances.  He submits that it is incumbent upon an employer to establish criteria for selection which are objectively verifiable against such matters as attendance record, efficiency, expense or length of service.  He again refers to and relies upon Compair Maxam. Moreover these criteria should be established in consultation with employees or unions.  He submits that even on the Tribunal’s findings no attempt was made to consult the Claimant until August, when the decision to make her redundant was effectively taken (since she was placed on garden leave and given a compromise agreement while others took over her work).  The Tribunal, he submits, gave no consideration to this aspect of fairness, which was also relevant to compensation.

35.	Ms McCann submits that the Tribunal did not err in law.  She submits that the decision of the Respondent in effect to close the Desk was a commercial matter for the Respondent; that given this decision Mr Hollands and the Claimant were redundant; and that this was not a case like Compair Maxam, where some employees were to be selected from a large group.  There was, in this case, no requirement to establish objective criteria.  The redundancy was, she submitted, a “role elimination exercise”.

36.	We asked why, if a newly recruited temporary worker in the CPE area could learn and take over her work, the Claimant, a long-standing employee, could not learn and take over the work done by the newly recruited temporary worker.  Ms McCann pointed to findings that the some members of the Respondent’s management did not consider the Claimant suitable to do the CPE work; she said that it may have been a question of “people skills”, although there is no finding to this effect in the Tribunal’s reasons.

37.	Our conclusions on this part of the case are as follows.

38.	Again, although the Tribunal found that the dismissal was in any event unfair by operation of section 98A(1), it remained important to consider whether the Respondent acted reasonably in selecting the Claimant for redundancy.  Again, it was relevant to compensation.

39.	The Tribunal, while it has made some findings of fact relevant to this issue, has not directly addressed it at any point in its reasons.  While we see the force of Ms McCann’s argument that the Respondent may have been entitled to treat the Desk as a separate entity from the rest of CPE, we do not think we are in a position to say on the basis of such findings of fact as the Tribunal has made that only one conclusion is possible on this question.  We think in particular that some consideration and reasoning is required on the question whether the Respondent acted reasonably in cross-training others to take over work done by the Claimant rather than cross-training her to do other related work – in other words, considering others in CPE for redundancy  - in particular a newly recruited temporary worker - instead of her.  This is not a case where it is possible for us to say, on the findings made by the Tribunal, that there was a distinct “pool” of two or one, such that it was reasonable to consider only the employees on the Desk in isolation.  It is a matter for the Tribunal to consider.  The issue was directly raised in submissions to the Tribunal.  It has not been dealt with.  The Tribunal’s findings on this issue are important because they may impact on compensation.

The application for permission to amend
40.	Step 2 of the SDDP provided as follows:

“Step 2: meeting
2.(1) The meeting must take place before action is taken, except in the case where the disciplinary action consists of suspension.
(2) The meeting must not take place unless –
(a) the employer has informed the employee what the basis was for including in the statement under paragraph 1(1) the ground or grounds given in it, and
(b) the employee has had a reasonable opportunity to consider his response to that information.
(3) The employee must take all reasonable steps to attend the meeting.
(4) After the meeting, the employer must inform the employee of his decision and notify him of the right to appeal against the decision if he is not satisfied with it.”

41.	Mr Sykes seeks to argue that the Tribunal, in addition to holding that the Respondent failed to comply with step 2 of the SDDP by holding a meeting, ought to have held that the Respondent also failed to comply with it by failing to inform the Claimant of the basis upon which it was making her redundant and to give her a reasonable opportunity to consider that information.  He suggests that the Tribunal, having made this additional finding, would then be required to reconsider an uplift which it made to her award under section 31 of the Employment Act 2002.

42.	His first argument is that he does not require leave to amend the Notice of Appeal because this is a point which the Appeal Tribunal is bound to take.  He relies upon Venniri v Autodex Ltd in which the Appeal Tribunal held that section 98A(1), while it was in force, was part of the essential fabric of unfair dismissal law, which the Tribunal should have in mind as an issue.  Therefore, he submits, the Appeal Tribunal should also consider the matter, even it is not raised as an issue by a Notice of Appeal.  We reject this submission.  The role of the Appeal Tribunal is to consider questions of law.  It is a requirement of the Appeal Tribunal’s Rules that parties identify the grounds of appeal in a Notice of Appeal.  Permission to amend is required to take a point not identified in the grounds of appeal.

43.	Alternatively he argues that he ought to be granted permission to amend.  The Registrar refused permission; but an appeal to us against the Registrar’s decision is a re-hearing, and we have considered afresh whether to grant permission to amend.  

44.	Mr Sykes argues that it would be just to allow an amendment.  He argues that the point is a short one, readily ascertainable from the Tribunal’s own findings in paragraphs 88 to 89 of its reasons; that the Appeal Tribunal should have regard to it, bearing in mind the principle in Venniri; that any delay is excusable and has caused no prejudice; and that it would be in accordance with the overriding objective applicable to the Appeal Tribunal and in accordance with guidance in Khudados v Leggate [2005] ICR 1013 at para 86.

45.	He explained to us that he had first put the point into a proposed amended Notice of Appeal early in 2010.  At a hearing before Slade J in October he had withdrawn the point when he was successful in other arguments.  He did not renew the matter before her, expecting that he would be unsuccessful in doing so.  However, in preparing for today’s hearing he thought it right and just to apply again for leave to amend.

46.	Ms McCann submits that the point is in effect a new point, not argued below; that any application for permission to amend should have been made far sooner; that Mr Sykes’ explanation is not an acceptable one; that the opportunity to seek a Burns/Barke remission to the Tribunal has been lost; that there has been prejudice to the Respondent, especially in the requirement of last minute work on the issue; and that it is not in the public interest for late points to be introduced in this way.

47.	Further she submits that the point lacks merit.  She points out that the Tribunal was well aware of the requirements of step 2, since it reached a decision on step 2 in favour of the Claimant.  She submits that the Tribunal’s findings show that the requirements of step 2(a) were in fact met by what the Claimant was told orally on 1 August.  The law does not require that step 2(a) be complied with after step 1.  She took us to Alexander v Bridgen Enterprises [2006] ICR 1277 at paras 39, 41; YMCA v Stewart [2007] IRLR 185 at para 11; and Homeserve Emergency Services v Dixon [2007] UKEAT/0127/07 at para 15.

48.	We have had regard to the overriding objective applicable to the Appeal Tribunal and to the guidance in Khudados v Leggate.  We refuse permission to amend.  Our reasons are as follows.

49.	Firstly, the application should have been made – if it was to be made at all – far earlier.  It is not an acceptable to withdraw a point and then re-introduce it many months later, immediately before the final hearing.  If it was sought to re-introduce a point which was withdrawn the application should have been made speedily, and if practicable to the Judge of the Appeal Tribunal before whom the point was withdrawn.  

50.	Secondly, the application is not a hard-edged point of law dependent only on paragraphs 88 to 89 of the Tribunal’s reasons, as Mr Sykes thought.   Ms McCann correctly submits that in principle what the Claimant was told on 1 August may be a sufficient basis for the purpose of step 2(a); and if it was, then it was conveyed to the Claimant in ample time for the step 2 hearing.

51.	Thirdly, this late application to amend has carried with it many of the difficulties attended by such applications: the extending of time for the appeal hearing; the late provision of an additional skeleton argument; and the late addition of authorities on both sides.  Indeed it was Ms McCann who brought relevant authorities on the question of step 2(a).

52.	Fourthly, we consider that there is little merit in Mr Sykes substantive argument.  The Tribunal was indeed well aware of the requirements of step 2, since it reached a decision on step 2 in favour of the Claimant.  We think it very likely that the Tribunal considered what the Claimant was told on 1 August to suffice for compliance with step 2(a); and we think that this point, if made in good time, might well have been dealt with or at least assisted by a Burns Barke reference to the Tribunal.

53.	We have considered all the factors set out in Khudados v Leggate; these are our principal reasons for concluding that the balance comes down against the grant of permission to amend.

Conclusions
54.	The appeal against the Registrar’s order is dismissed.  The substantive appeal is allowed and the matter remitted to the Tribunal to consider afresh the two questions which we have identified and to consider compensation afresh in the light of its conclusions.

55.	We invited submissions from Mr Sykes and Ms McCann on the question whether remission should be to the same or to a different Tribunal.  Ms McCann submitted that remission should be to the same Tribunal.  Mr Sykes was inclined to agree on grounds of cost and convenience, so long as the existing Tribunal could be reconvened without delay.  We have ourselves considered the criteria in Sinclair Roche & Temperley v Heard [2004] IRLR 763.  The Tribunal for the most part resolved satisfactorily the issues between the parties.  We are confident in the professionalism of the Tribunal to reconsider the issues which we have identified and then to re-consider the question of compensation, applying the guidance in Software 2000 v Andrews, and keeping in mind the range of options set out in that case.