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Appeal No. UKEAT/0076/10/LA

UKEAT/0077/10/LA

EMPLOYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 17 May 2010

Before

HIS HONOUR JUDGE McMULLEN QC (SITTING ALONE)

MRS N MOORE (APPELLANT)

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MARKS AND SPENCER PLC (RESPONDENT)

Transcript of Proceedings

JUDGMENT

For the Appellant
MR FERGUS McCOMBIE (of Counsel)

Instructed by:
Messrs Ashby Cohen Solicitors Ltd
18 Hanover Street
London
W1S 1YN

For the Respondent
MR CLIVE SHELDON (of Counsel)

Instructed by:
Marks & Spencer Plc
Legal Services
Waterside House Mailroom 10.14
35 North Wharf Road
London
W2 1NW

PRACTICE AND PROCEDURE - Amendment

The Employment Judge did not err in refusing an application, in the form of a new claim, to amend to add claims out of time under the Sex Discrimination Act 1975 and the Maternity Employment Tribunal Regulations. It was still open to the Claimant to have her second claim, presently stayed, determined.

1. This case is about Employment Tribunal procedure in dealing with an application to amend in the form of a second claim form. I will refer to the parties as the Claimant and the Respondent.

1. It is an appeal by the Claimant in those proceedings against what is effectively an order of Employment Judge Lewzey on 16 November 2009 refusing an application to amend, and her refusal on 18 December 2009 to review that earlier order. The Claimant is represented by Mr Fergus McCombie, the Respondent by Mr Clive Sheldon, both of Counsel.

1. The Claimant appealed against both orders and the essential issue is whether the Judge was correct to refuse the amendment. There are subsidiary grounds to do with the paucity of reasons. It was for that reason that Underhill P directed a full hearing. Recognising that the outcome of a reasons challenge could be remission to the Employment Tribunal to decide the matter again with further reasons, the Respondent invited that interim procedure. The President refused the application considering that the Judge had had two opportunities to give her reasons.

1. The relevant powers are set out in the 2004 Procedure Regulations. Rule 1 requires a particular form for submitting a claim form and both the relevant claims here are properly constituted; rule 3 contains the overriding objective; rule 30 requires reasons to be given for a judgment and rules 35 and 36 deal with a review.

1. The Claimant was dismissed from the Respondent's employment by way of redundancy. She presented what Mr Sheldon describes as a prosaic claim of unfair dismissal when she was represented by a previous firm of solicitors. Significantly, it now appears that the fact the Claimant was on maternity leave conjures in her and her advisers' minds the prospect of discrimination contrary to the Sex Discrimination Act 1975 and the Maternity etc Regulations 1999. So, what are sought to be added are claims for dismissal and detriment short of dismissal based on sex; and based on maternity, contrary to ss 99 and 47C of the Employment Rights Act 1996.

1. The way in which the matter was presented was a letter from the Claimant's current solicitors indicating that the initial decision was made to weigh against the Respondent in respect only of unfair dismissal without a hint of gender. The Respondent was copied into that and made its objections in full form in a letter to the Employment Tribunal. In the Judge's first order she said this:

"Your application for leave to amend the ET1 is refused, it is out of time, there are no suggestions of that claim in the ET1, and the Respondent has objected."

1. The criticism of that passage is that the Judge gave no reasons save that it was out of time, the claim had not previously been made and there was objection. An application for a review was lodged again with reasons, much fuller this time, and objection was taken again. The Judge said this in her second order:

"The Claimant's review application is refused. The Claimant's complaint may lie against her former Solicitors. Claimant's representatives have concluded the 2nd ET1 as an amendment and leave to amend has been refused. Should the Claimant seek to have the 2nd ET1 treated as a second claim that is a matter for them."

1. It is contended that the Judge again failed to give reasons and that she should have found that there was a second valid claim form. The principal ground on which the application for review had been sought was rule 34(3)(e) (the interests of justice). The Claimant's perspective of the disadvantage to her, as engagingly put by the Claimant's current solicitor, is that her former solicitor failed to maximise her chances of success when it ought to have been obvious that there were potential discrimination claims available to her.

1. I will deal with the arguments of both counsel and my conclusions on them together. The first ground is that the Employment Judge did not consider all of the factors set out in Selkent Bus Co. Ltd v Moore [1996] ICR 836, EAT Mummery P. This requires a balance to be struck wherever there is an application for an amendment. The principles are set out:

"(3) Consistently with those principles, a Chairman or a Tribunal may exercise the discretion on an application for leave to amend in a number of ways:

(a) It may be a proper exercise of discretion to refuse an application for leave to amend without seeking or considering representations from the other side. For example, it may be obvious on the face of the application and/or in the circumstances in which it is made that it is hopeless and should be refused. If the Tribunal forms that view that is the end of the matter, subject to any appeal. On an appeal from such a refusal, the appellant would have a heavy burden to discharge. He would have to convince the Appeal Tribunal that the Industrial Tribunal had erred in legal principle in the exercise of the discretion, or had failed to take into account relevant considerations or had taken irrelevant factors into account, or that no reasonable Tribunal, properly directing itself, could have refused the amendment. See Adams v West Sussex County Council [1990] ICR 546.

(b) If, however, the amendment sought is arguable and is one of substance which the Tribunal considers could reasonably be opposed by the other side, the Tribunal may then ask the other party whether they consent to the amendment or whether they oppose it and, if they oppose it, to state the grounds of opposition. In those cases the Tribunal would make a decision on the question of amendment after hearing both sides. The party disappointed with the result might then appeal to this Tribunal on one or more of the limited grounds mentioned in (a) above."

1. The simple conclusion to this part of the argument is the concession by Mr McCombie that had the Judge added the words "and I agree" to the end of the words "and the Respondent has objected" his position would be very difficult. In my judgment that is what has occurred here. It would be wrong to criticise the Judge for not reading the material. It is implicit in her refusal of the application that she does not agree with the reasons put forward by the Claimant. Noting that the Respondent has objected is accepting the Respondent's arguments in its objection. It is common ground that this is terse, and I have no doubt this appeal could have been avoided had she used those additional words. She does not have to do much more than that. This is an interim application, there is no objection to her dealing with this as a desktop exercise rather than at a hearing and she has to deal with interim applications every day.

1. In my judgment the reasons set out by the Respondent in its objection are sufficient to enable the judge to refuse the application to amend pursuant to Selkent principle 3(b) above. The central fact is the change of solicitor and no reason is given for that decision. The application is out of time, a relevant factor, although it is not substantially out of time. The fact that the Respondent has objected is not neutral but relevant because the Selkent sequence requires the Respondent to state its objection. The substance of the objection is plainly in the mind of the Judge. If this is a freestanding appeal against the order on 16 November 2009 it is dismissed.

1. However, in fairness I indicated that I would take both Judgments together. This makes sense where the Judgment is maintained on review. There are some problems about the second Judgment. The requirement on an application for a review is for a Judge to decided whether the claim has no reasonable prospect of success, see rule 35(3). Unless she makes that decision there must be a review. Here, the interests of justice are put forward. It is essentially the change of solicitors and the failure by the solicitors to make all potential claims. That in itself is not a valid reason, see Lindsay v Ironsides Ray & Vials [1994] ICR 384, 394C, EAT Mummery P. The policy behind that is to discourage investigation by the Employment Tribunal or the EAT of criticisms made of a party's legal representative.

1. Of course, the Claimant will be denied the opportunity to run a claim of discrimination based on gender or maternity which, while an important factor, it is not properly described as the interests of justice.

1. The nature of the claim is qualitatively different as well as quantitatively when discrimination is added to a straightforward unfair redundancy claim. There will have to be examination of the thought processes of the decision makers, of its policies both written and in practice and so on, for these discrimination claim to be justly tried. That will involve not simply a re-labelling but the examination of substantially new material.

1. The Judge looked at all the material from both sides for she said she has reviewed the papers, and yet says that the review application is refused. It seems to me she effectively allowed the review but reached the same conclusion on a fuller examination of the material which took place at a desktop review in accordance with rule 36(1). I have explained the interrelationship between these rules, for example, in Secretary of State v Rance [2007] IRLR 665.

1. If that is the case, the correct order is the Judge has allowed the application to review but refused to change her decision, as she is entitled to do under rule 36. Therefore, the question is was her decision wrong in principle or affected by irrelevant factors or disregard of relevant factors? I cannot say that it is. Again, the correct inference is that she accepts the Respondent's submissions. No inference is needed in respect of the rejection of the Claimant's case because her letter actually says the application is refused. It is refused on the basis of rejecting what is said in that letter and in accepting what is said in the Respondent's letter.

1. That then disposes of the two appeals. What remains is this: the last line of the second order, is: "an opportunity given to the Claimant to have treated as a second claim the ET1 which was submitted." Together with the original case it was stayed on 1 February 2010. The Claimant did not take up the Judge's suggestion that the matter could be so treated.

1. The juridical basis is that the Claimant recognises that she is not making an amendment but a new claim, and it is out of time. For the purposes of one of the jurisdictions here, the question is whether it is just and equitable to extend time. It seems unlikely that any application would succeed under the Maternity Regulations (what is not reasonably practicable) if for no other reason than that this case was in the hands of solicitors who put forward some claims but not all of them.

1. A decision on the second claim is still open. The Secretary of the Tribunal has not accepted or rejected the ET1. I have no doubt that the administration has been acting upon the basis of Judge Lewzey's first two orders together with the stay which I am told had been imposed pending appeal. The impact of her thinking was that there would be an opportunity for the Claimant to have her second ET1 determined. I would expect the claim to be accepted, it to be sent to the Respondent, and the Respondent to submit a response in which it can take both merits and procedural points.

1. Mr Sheldon firmly tells me that the point will be taken if this is to go ahead and it may reserve its position in respect of the merits which will, of course, require more work dealing with the discrimination allegations. In my judgment that is what is available to the Claimant. I am not suggesting by this that she will have an easy ride but the central issue is: why did she change solicitors? These matters need to be determined.

1. I have considered whether I, myself, should decide this. Mr Sheldon says no because the Claimant has not given an explanation and the proper place to determine what is just and equitable is at the Employment Tribunal. I do not regard this as ping-pong as Jacob LJ described in [Buckland](), [2010] IRLR 445 CA. It is having factual and discretionary issues tried on the ground floor.

1. So, the order will be the appeals are allowed in part in as much as the Claimant's second claim should be determined. I will order that it be accepted by the Employment Tribunal and it be sent to the Respondent in accordance with the rules and that directions be given by the Employment Tribunal. I see no reason why it should not be Judge Lewzey but that is a matter for the Regional Employment Judge. As an observation it may be more convenient to have that dealt with without the necessity for the Respondent to put in its defence on discrimination until it has been decided that this will be an issue.