Parekh v London Borough of Brent UKEAT/0097/11/MAA

Appeal against a decision that the claimant’s ET1 did not include a claim for automatic unfair dismissal, that the claimant should not be permitted to amend it and the EJ’s decision to treat the reason for dismissal as being a reason relating to capacity. Appeal dismissed.

The claimant brought a claim for unfair dismissal, amongst other claims, but, on an application to strike out the claims, the EJ ruled that he had not included an explicit complaint of automatic unfair dismissal because of making a protected disclosure. The EJ refused an application to amend and he also limited the issues that would fall for determination at the subsequent hearing of ordinary unfair dismissal. The claimant appealed.

The EAT dismissed the appeal. On a proper construction of the claim form it made no claim of automatically unfair dismissal. There was no error in the exercise of discretion on the application to amend. ___________

Appeal No. UKEAT/0097/11/MAA

EMPLOYMENT APPEAL TRIBUNAL

FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8JX

At the Tribunal

On 16 March 2012

Before

MR RECORDER LUBA QC (SITTING ALONE)

MR S PAREKH (APPELLANT)

LONDON BOROUGH OF BRENT (RESPONDENT)

Transcript of Proceedings

JUDGMENT

**APPEARANCES**

For the Appellant MS N JOFFE (of Counsel)

Instructed by: North Kensington Law Centre 74 Golborne Road London W10 5PS

For the Respondent MR A ROSS (of Counsel)

Instructed by: London Borough of Brent Legal Services Town Hall Annexe Forty Lane Wembley Middlesex HA9 9HD

**SUMMARY**

PRACTICE AND PROCEDURE

Amendment

On an application to strike out a Claimant's claims an issue arose as to whether the claim form contained a claim of automatically unfair dismissal. The Employment Tribunal Judge decided that it did not and refused an application to amend.

Appeal against those decisions dismissed. On a proper construction of the claim form it made no claim of automatically unfair dismissal. There was no error in the exercise of discretion on the application to amend.

**MR RECORDER LUBA QC****Introduction**
  1. This is an appeal by the Claimant, Mr Shailesh Parekh, from decisions made by Employment Judge Bloch QC at a Pre-Hearing Review which was conducted on 15 December 2010. The material decisions made by the Employment Tribunal Judge were, firstly, that the Claimant's claim presented to the Employment Tribunals Service did not include a claim for automatic unfair dismissal on grounds of making a protected disclosure and, secondly, that the Claimant should not be permitted to amend his claim form to additionally include such a claim.
  1. The consequence of those two decisions was that the claim before the Employment Tribunals Service would proceed only as a claim for "ordinary" unfair dismissal. The Claimant had earlier made claims of disability discrimination and sex discrimination but they had been withdrawn by him some 48 hours before the commencement of the Pre-Hearing Review. The Employment Tribunal Judge further decided to record what the issues would be between the parties at the full hearing of the unfair dismissal claim in such a way as to treat the reason for dismissal as being a reason relating to capacity. All three of the decisions made by the Employment Tribunal Judge are impugned by the Claimant on this appeal.
**Summary facts**
  1. Mr Parekh had been employed by the local authority Respondent as a school bursar at one of its schools between August 2008 and September 2009. There is no dispute that he was dismissed. On 30 November 2009 he presented his claim to the Employment Tribunals Service. He complained, in terms to which I shall return, that his dismissal had been unfair and that he had been a victim of sex discrimination and disability discrimination. The Respondent's answer, framed by form ET3, was that the Claimant had been fairly dismissed on capability grounds and that there had been no unlawful discrimination. Following the filing of the claim and answer, there was a series of procedural directions and hearings. I shall briefly, given their relevance to the issues on the appeal, recount the procedural stages through which the claim went before it arrived for consideration by Employment Judge Bloch.
  1. The first procedural step was that in February 2010 the Employment Tribunals Service caused a letter to be sent to the Claimant at the initiative of Employment Judge Pettigrew. That document invited the Claimant to indicate whether his claims in respect of unlawful discrimination were being pursued as no particulars of them had been given in the claim form. He was also invited to state whether he wished to amend his claim form. That, as I have indicated, was in early February 2010.
  1. Some five or six weeks later Employment Judge Ryan made an order that the Claimant set out the full facts and matters he relied upon in support of his claims of sex discrimination and disability discrimination. Whether by operation only of the second of those two judicial initiatives or by their combined effect, the Claimant did produce further and better particulars of his discrimination claims. He did so on the last day available to him under the order made by Employment Judge Ryan.
  1. The claim then fell for consideration at a case management conference or a case management directions hearing which took place before Employment Judge Mahoney. The Respondent took the opportunity of that hearing to bring forward an application that the claims should be struck out. The Employment Tribunal Judge directed that the strike out applications should be heard at a Pre-Hearing Review some three months later, on 15 December 2010, and it was that Pre-Hearing Review that Employment Tribunal Judge Bloch was conducting and from which the decisions impugned in this appeal arise.
**The relevant law**
  1. I can take the relevant statutory provisions quite shortly. There is no dispute that the claim presented by the Claimant placed before the Employment Tribunals Service an assertion that he had been unfairly dismissed for the purposes of part 10 of the Employment Rights Act 1996. The correct approach to a claim for unfair dismissal is addressed at sections 95 to 98 of the 1996 Act and I say nothing further about those provisions; they are familiar.
  1. However, in section 103A specific provision is made by an amendment introduced by the Public Interest Disclosure Act 1998, section 5, which has the effect of rendering a particular form of dismissal automatically unfair. It reads as follows:

"An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that the employee made a protected disclosure."

**The grounds of appeal**
  1. The Claimant seeks a reversal of the Judge's decisions and orders so he may pursue a claim for automatic unfair dismissal under section 103A. He seeks to do so either on the basis that such a claim already emerges in his ET1 claim form or on the basis that permission to amend that claim form should be given so that the section 103A claim can be pursued. He needs, in those respects, to demonstrate on this appeal that the learned Employment Tribunal Judge erred in law. Likewise, he seeks to establish that the Employment Tribunal Judge erred in law in limiting the issues that would fall for determination at the subsequent hearing of what might be described as the "ordinary" unfair dismissal claim.
  1. There are four grounds of appeal; I shall deal with them in turn.
**Ground 1**
  1. This first ground of appeal attacks the initial decision of the Employment Tribunal Judge that the claim before the Employment Tribunals Service did not include a claim for automatic unfair dismissal on grounds of protected disclosure. As initially expressed in the grounds of appeal and, indeed, in the amended grounds of appeal, and also in the skeleton argument for the hearing before me, this ground was put on a perversity basis. On reflection, it was reformulated by Ms Joffe, counsel appearing for the Claimant at the hearing before me. As so reformulated, this ground was that the Employment Judge had erred in his construction of the claim form ET1 as not including a claim for automatically unfair dismissal under section 103A. Mr Ross, appearing for the Respondent, submitted that there had been no error of construction. Indeed, he submits that no claim in relation to automatically unfair dismissal emerges from the ET1 at all.
  1. There is nothing between the parties as to the correct approach to this question as a matter of law. Both parties accept that the law is appropriately set out in the Judgment of Waller LJ in the well known case of Ali v Office of National Statistics [2005] IRLR 201 CA, in particular that part of the learned Lord Justice's Judgment at paragraph 39 which reads:

"In my view, the question whether an [ET1] contains a claim has to be judged by reference to the whole document."

  1. The parties being at one as to the law, they are also ultimately at one as to what material the Employment Tribunal Judge was entitled to consider in construing whether a claim for automatically unfair dismissal had been made. It was tentatively suggested by Ms Joffe that the Employment Tribunal Judge, and indeed I myself, could take some account of the way in which the Respondent had understood the claim or responded to it. That tentative submission was, in my judgment, sensibly not pursued. The core of Ms Joffe's submission was that the Employment Tribunal Judge had erred ultimately in one of two ways: either he ought, as a matter of construction, to have identified the automatic unfair dismissal claim from the terms of the ET1 itself; alternatively, he ought to have found that such a claim emerged from the ET1, taken together with the documents referred to in it, which were in the possession of the Respondent.
  1. I will deal with those two ways of putting Ground 1, in turn. First, I go to the claim form ET1. It is a largely pre-printed document which is completed by a series of ticks and with the insertion of particular material in answer to specific questions. Part 5 of the form is headed "Unfair dismissal or constructive dismissal", and the notes for guidance on completion read as follows:

"Please fill in this section only if you believe you have been unfairly or constructively dismissed.

If you were dismissed by your employer, you should explain why you think your dismissal was unfair. […]"

  1. Immediately after those instructions, on this form the Claimant has written as follows:

"I was informed in June 2009 that I was on probation despite being employed by the school since August 2008 and having Local Government continuous service. The letter was dated 27 February 2009 but I was only sent the letter in June 2009. I was never informed that I was on probation. I took out a grievance in May 2009 which has yet to be investigated. I was dismissed on 02/09/09 and was given the right to appeal my dismissal. As there was no probation policy in the schoo [sic], the school used the school capability policy's appeal process as a template. The appeal was not upheld. My grievance has yet to be heard. I was never informed that I was on Probation and the school has been unable to provide any documents to prove that I was on probation."

  1. Those, then, are the matters which the Claimant advanced on the form as explaining why his dismissal had, in his view, been unfair. But in line with the guidance given by Waller LJ in the Ali case, it is right to consider the document as a whole, and for this purpose Ms Joffe, in particular, takes me to section 6 of the form which is headed "Discrimination" and invites the Claimant to identify if he has been discriminated against and in what respect. Under that heading the Claimant has ticked the two boxes "Sex" and "Disability", and under the instruction to describe incidents which are believed to amount to discrimination, the dates of those incidents and the people involved, he has entered this text:

"This relating to my grievances and whistle blowing statements that yet to be investigated."

  1. As to that document and the way it had been completed, the Employment Tribunal Judge said the following at paragraph 10 of his Judgment:

"The first question to be considered was whether the whistle blowing aspect of the claim was covered by the existing claim. In my view, despite the oblique reference to whistle blowing in paragraph 6.2 of the claim, it could not fairly be said that this claim now put forward by the Claimant in the pre-hearing review was covered by the existing claim. There was no basis upon which, on any reasonable reading of the claim, the respondent could be said to have been put on notice that this claim was to be put forward at the hearing."

  1. In my judgment, no error of law was made by the Employment Tribunal Judge in this respect in his construction of the claim form. It is quite plain that nothing in that document ET1 spells out, whether in layman's terms or by reference to the ingredients of the statutory provisions of section 103A, that what is asserted is effectively a case of victimisation by dismissal by reason of the making of a protected disclosure. I accept Ms Joffe's submission that a degree of latitude must be allowed to a litigant in person, so that where, for example, a Claimant had simply written the two sentences, "I blew the whistle on my employers. I was sacked" an inference could readily be drawn that the claim is for automatic unfair dismissal for the making of a protected disclosure. But, in my judgment, this case gets nowhere close to that example. An assertion of automatic unfair dismissal for the making of a protected disclosure manifestly does not emerge expressly from the form ET1 and, in my judgment, nothing about it infers such a claim.
  1. As to Ms Joffe's second point on this first ground – that is to say, that the Claimant could pray in aid the content of documents already in the possession of the Respondent, even if not attached to the claim form, provided they were referred to in it – I am not satisfied that that proposition is sound in law. Whether or not it is sound in law it seems to me that on the facts of this case any such contention is entirely tenuous. Ms Joffe needs to rely entirely on the single sentence in paragraph 6.2, "This relating to my grievance and whistle blowing statements that yet to be investigated". It is quite plain that there is no reference there to any particular disclosure, or to whom disclosure was made or on what date disclosure was made.
  1. In my judgment, an Employment Tribunal Judge must be able to see from the claim document and its attachments, and not from other documents, what the claim is about and whether the Employment Tribunals Service has jurisdiction. As I have indicated, in this case even the purportedly relevant documents are not identified by date nor with sufficient particularity for them to be easily turned up, and nor is it indicated in what respect any particular content of those documents might be relevant to the claim presented to the Tribunal. For all those reasons ground 1 of the grounds of appeal, in my judgment, has no substance and falls to be dismissed.
**Grounds 2 and 3**
  1. Grounds 2 and 3 of the grounds of appeal are each directed to the exercise of discretion by the Employment Tribunal Judge in dealing with an amendment application to introduce a claim of automatic unfair dismissal. The Employment Tribunal Judge entertained such application and rejected it. Ms Joffe submits that in all the circumstances the exercise of the Judge's discretion was perverse. Her case for the Claimant has to be put in that way because it cannot be said that the Employment Tribunal Judge failed to direct himself in accordance with the law. He was taken to the well-known case of Selkent Bus Company Limited v Moore [1996] ICR 836. It is plain, from the terms of his Judgment, that he had that decision and the directions given in it, as to the proper exercise of a judicial discretion on permission to amend, well in mind. It is plain, from the terms of his Judgment, that he addressed the application of that test by reference to the three factors he identified in paragraph 11 of his Judgment, namely, first, the nature of the amendment, secondly, the applicability of time limits and, thirdly, the timing and manner of the application. He dealt with each of those aspects in turn in his paragraphs 12 to 14 and addressed the overarching question of hardship and fairness as between the parties in paragraph 50. This approach to the judicial exercise of his discretion very appropriately drew no criticism from Ms Joffe.
  1. My Judgment will, at this point, incorporate the full text of paragraphs 12 to 15, because they succinctly indicate how the Judge approached the task of dealing with the application to amend with the benefit of the discretion vested in him. What Ms Joffe did challenge was, firstly, under ground 2, the Employment Tribunal Judge's finding that this was not a case of simple amendment by re-labelling facts into a new form, but of the introduction of a claim of a different nature. She asserted that the Employment Tribunal Judge should have appreciated that this was a simple re-labelling of the asserted facts. By those facts she invited me to treat her as referring not only to the content of the ET1 but also to those facts asserted in further and better particulars given by the Claimant of the claims of discrimination.
  1. I have already set out the content of the relevant parts of form ET1, and I can now briefly deal with the content of the further and better particulars which the Claimant gave on 30 March 2010. Those particulars open with the words:

"I am the Claimant of the above case and set out following facts and matters relied upon in support of my sex and disability discrimination."

  1. There then follow some five or six typescript sheets giving various particulars. Ms Joffe invites me to alight, in particular, on the content of the five-paragraph summary which appears on the last page of those materials and, in particular, the second numbered paragraph which asserts that the Respondent, "successfully got rid of me in order to cover up their administrative and financial irregularities". She asserts that the facts therein asserted, taken together with the facts asserted in the ET1, would simply be re-labelled by the amendment application and that there would be no substantive introduction of a new ground.
  1. In response, Mr Ross submitted that there were in these documents very few relevant facts to be re-labelled. There were almost no factual assertions in the form ET1, and he drew attention to the fact that the further and better particulars must be treated as having been withdrawn when the claim for sex discrimination and disability discrimination, of which they gave particulars, were themselves withdrawn. He submitted that there was no reason why the Employment Tribunal Judge should have taken the content of those particulars into account at all. But even if those particulars were treated as containing relevant facts, Mr Ross' submission was that one could not treat the ET1 and the further and better particulars as containing a factual assertion that the Claimant had made a disclosure, that that disclosure was a protected disclosure, and that that protected disclosure had caused the dismissal of the Claimant by the dismissing body.
  1. Those then were the competing contentions on Ground 2. I consider it convenient, before dealing with my Judgment on that ground, to also set out the terms of Ground 3 and the submissions upon it. Ms Joffe described Ground 3 as being at the heart of her appeal. By it, she contended that the Employment Tribunal Judge's exercise of discretion was flawed in a further respect. He had, she submitted, treated the matter as one which would take the Respondent by surprise; that is to say, that a protected disclosure automatic unfair dismissal case would be wholly new. That proposition, she submitted, was wholly inconsistent with the material that had been before the Employment Tribunal Judge. She took me again to the further and better particulars, which I have already mentioned. She additionally invited my attention to the fact that there was, apparently, before the Employment Tribunal Judge a copy of a letter that was sent by the Claimant on 20 May 2009 to the Chair of Governors containing a grievance against the Headteacher. In the course of setting out his grievances, it is right to record that on the second page of that document the Claimant had put this text: "Bullying me to working in an unethical manner, i.e. financial and administrative irregularities."
  1. Further, there was before the Employment Tribunal Judge a letter from the Headteacher to the Claimant, dated 27 July 2009, and that too mentioned the grievance. Thus, submitted Ms Joffe, having regard to the grievance of May 2009, the content of the reply of July 2009 and the further and better particulars of 30 March 2010, the employer could not reasonably have been taken by surprise by the Claimant asserting that he wished to pursue a claim of automatically unfair dismissal. Further, Ms Joffe relied in this part of her case on a document that was not put before the Employment Tribunal Judge by anyone, but which she submitted must have been on the file of documents held by the Employment Tribunals Service. The document she particularly drew attention to was headed: "Respondent's written submissions in support of strike-out application". It appears to have been prepared for an earlier case management directions hearing in September 2010. In that document at paragraph 10 the Respondent's then representative wrote as follows:

"The Claimant's claim for unfair dismissal is confusing. It appears that the Claimant claims either that (a) he was dismissed for making a protected disclosure or (b) that the process of dismissal was procedurally unfair."

  1. Ms Joffe submitted that had the Employment Tribunal Judge taken the trouble to examine the file and found that document and that paragraph he could not reasonably have concluded that the employer would be taken by surprise. Finally, in support of Ground 3, Ms Joffe drew attention to the final sentence in paragraph 13 of the Employment Tribunal Judge's Judgment dealing with his approach to the extension of time. She submits that he misdirected himself as to time and that influenced his exercise of discretion.
  1. In reply to these points, Mr Ross' general submission was that the Employment Tribunal Judge's decision on whether or not to allow the amendment was well within the generous ambit of the discretion conferred upon him. As to the specific documents relied upon by Ms Joffe, Mr Ross responds that none of them say in terms that he was mistreated or dismissed by reference to the making of any protected disclosure. Indeed, he drew my attention to the fact that in the further and better particulars of the discrimination, the Claimant had written:

"The Respondent removed me from my job and preferential treatment was given to other female staff/contractors."

  1. That appears to be the Claimant's own identification as the reason for his dismissal as being one of a decision to prefer the employment of female to male staff. As to the earlier written submissions of the Respondent, Mr Ross draws attention to the fact that the Claimant placed no reliance upon them at the hearing and that the Employment Tribunal Judge was under no duty to go into the historic documents on the Employment Tribunal's file in order to find any such material. Further, Mr Ross submits that although the last sentence at paragraph 13 may have been infelicitously worded, nevertheless, the general sense of it is correct; that is to say, that the application to amend would be to introduce a claim which was many months out of time. Finally, Mr Ross reminded me that no application to amend the claim had been prepared for the hearing before Employment Tribunal Judge Bloch and no further particulars of the unfair dismissal claim had at any time been provided or volunteered by the Claimant.
  1. I have taken these two grounds and the submissions upon them together because they collectively assert and, indeed, individually assert perversity in the exercise of judicial discretion by the Employment Tribunal Judge. In my judgment, whether taken individually or collectively, these two grounds get nowhere near showing that the Employment Tribunal Judge's decision here can be labelled 'perverse'. For that purpose the Claimant would have to establish that no reasonable Employment Tribunal Judge, on the material that he had before him, could have reached the conclusion that an application for amendment should be refused. In my judgment, there is nothing in the points made by Ms Joffe in relation to the earlier documents; there is no substance in the timing point; and there was no obligation on the Employment Tribunal Judge to turn up from the Tribunal file documents to which no reference had been made. Essentially, therefore, on this part of the appeal I am accepting the submissions made by Mr Ross.
  1. I take account of the fact, as Ms Joffe repeatedly reminded me, that the Claimant in this case was, at the relevant stage, unrepresented. But I remind myself that he had had ample time to prepare. He had known no later than September 2010 that the employers were going to seek to invite the Tribunals Service to dismiss his claim outright on the basis that it gave no disclosure of sufficient or reasonable grounds. He had until mid-December to prepare any amendment or additional document which he thought could make his claim clear. He had taken no such step. In my judgment, the exercise of discretion against his application to amend was, in all the circumstances, inevitable.
**Ground 4**
  1. This is the only ground which has given me really significant concern on the hearing of this appeal. Shortly put, Ms Joffe for the Claimant submits that the Employment Tribunal Judge identified the issue for determination at the full hearing of the "ordinary" unfair dismissal claim in such a way as to prevent the ultimate Employment Tribunal from requiring the employer to make out the reason for dismissal.
  1. It is common ground between the parties that the statutory burden of proof in showing the reason for the dismissal fell on the employer. In those circumstances it is somewhat unusual for an Employment Tribunal Judge at a Pre-Hearing Review to formulate the issues as between the parties in such a way as to foreclose the question of what was the reason for dismissal. The Employment Tribunal Judge's explanation for taking this course is set out at paragraphs 16 to 19 of his written Reasons:

"16. As to the ordinary unfair dismissal claim, Mr Ross made the further (in my view entirely justifiable) point that that part of the claim is also unarticulated.

17. The claimant explained the basis of his unfair dismissal claim by reference to a letter to him dated 27 August 2009 by the chair of the ad hoc committee of the Park Lane primary school governing body. His claims were limited to paragraphs b, c and d under the heading of 'Findings' in that letter, namely:

b. 'You found it difficult to take instructions

c. You are unable to work as part of a team

d. That you provided poor quality work as evinced by the budget monitoring reports that you provided at meetings held by the Finance and Buildings Committee and the Full Governing body'.

18. He further referred to his letter of 7 September 2009 to the chair of governors complaining about lack of appropriate procedure and that dismissal was an inappropriate sanction.

19. Accordingly, it is now definitively recorded that the issues between the parties which will be determined by the tribunal are as follows:

a. Did the respondent act reasonably in treating capability as a sufficient reason for dismissal and in particular lacked the competencies referred to in sub paragraphs b, c and d of the letter of 27 August 2009 referred to above?

b. Did the respondent otherwise act unreasonably in its decision to dismiss the claimant from his employment?

c. Was dismissal within the range of reasonable responses?"

  1. It is plain from those passages that the Employment Tribunal Judge sought the assistance of the parties in identifying, for the benefit of Tribunal ultimately to hear the unfair dismissal claim, what the real issues were that fell for determination.
  1. Ms Joffe submits that however laudable that intention, the Employment Tribunal Judge had acted impermissibly. He was, in her submission, usurping a function which would fall to the ultimate Tribunal, and he was denying the Claimant the full and appropriate opportunity to probe what the employer would put forward as the real reason for dismissal. Her primary submission is that the Employment Tribunal Judge had no jurisdiction to make an order delimiting the issues in this way but, secondarily, even if he did, the exercise of the discretion had been perverse in the sense that no reasonable Judge could have made such a direction in relation to issues. In reply, Mr Ross submitted that the Employment Tribunal Judge did have a discretion to identify the issues in the way he did as an exercise of his case management powers and that the exercise of those powers was proper, given the circumstances of this case.
  1. Although I have indicated that this was the ground of appeal that most troubled me, I have come to an ultimate conclusion that there is nothing in this ground of appeal on the facts of this particular case. First, I am satisfied that an Employment Tribunal Judge at a Pre-Hearing Review does have the broad powers to not only identify but to delimit the issues which will be heard at a further full hearing. The rule contained in rule 10 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004, Schedule 1, seems to me to amply contain such power. It provides that:

"10

(1) Subject to the following rules, the Employment Tribunal Judge may at any time either on the application of a party or on his own initiative make an order in relation to any matter which appears to him to be appropriate. Such orders may be any of those listed in paragraph (2) or such other orders as he thinks fit."

  1. Given that the Employment Tribunal Judge is there vested with a statutory discretion, the only question for me is whether it was exercised beyond permissible bounds. It is obviously a strong thing to treat an issue upon which a Respondent would bear the burden of proof as already having been concluded in a particular way and against the interests of the Claimant. But in my judgment, in this particular case, such delimitation of the issues was a proper exercise of the Employment Tribunal Judge's discretion. It is important to recall that it was a discretion being exercised in the presence of both parties, having considered the matter with them and having heard from both of them. It is clear from the terms of his Judgment that he expressly invited the Claimant to identify precisely in what respect he was suggesting that his dismissal was unfair. Moreover, it is understandable, given the history of these proceedings, why the power vested in the Employment Tribunal Judge should have been exercised in the way it was.
  1. Firstly, as part of the history, it is right to draw attention to the fact that the Claimant had initially advanced a very large number of claims, not only to the governors of the school but to the auditing investigation team of the local authority. In respect of the latter, he may have made as many as 65 discrete complaints. Secondly, as the Judge notes at paragraph 40 of his Reasons, there was a background of:

"[…] lengthy and repeated difficulties experienced by the respondents in understanding the precise nature of the claimant's case, leading to the case management discussion and order and the attempt there made by Judge Mahoney to seek to clarify once and for all the precise ambit of the claims being made."

  1. Then, finally, as an indicator of how the Claimant was conducting and proposed to conduct the litigation, it is right to observe that the Employment Tribunal Judge himself had been gearing for a hearing on a strike out of claims of sex discrimination and disability discrimination, in respect of which full particulars had been given, but the whole claim had been withdrawn in those respects by the Claimant only a matter of two days or so before the Pre-Hearing Review. It was against that background that the Employment Tribunal Judge was obviously keen to ensure that the full hearing would be effective, would address the issues of real concern to the Claimant and would prevent the Claimant reintroducing earlier dismissed matters, or matters such as automatic unfair dismissal, essentially by the back door. For all those reasons, I consider his description or delimitation of the issues for determination at the full hearing as being well within the ambit of his broad discretion.
  1. I do not leave this Judgment without dealing with the question of fresh evidence. There was listed for determination as a preliminary issue in this appeal the question of whether the Claimant should be permitted to introduce fresh evidence; that is to say, certain documentary material which was not before the Employment Tribunal Judge. It seems to me that this material could not possibly go to Ground 1 of the appeal – that is to say, the construction of the existing claim form – nor, in my Judgment, could it have gone to issues 2 and 3, which were issues related to the exercise of the Judge's discretion on the basis of the material before him. Ms Joffe did not urge that the fresh material went to Ground 4 of the grounds of appeal at all. In all those circumstances, I indicated that I thought it proper to defer the application for the introduction of fresh evidence to be revisited if I were to find in favour of the Claimant on any aspect of the appeal and need then to determine for myself the way in which discretion should be exercised. In the event, that opportunity has not arisen because I have found against the Claimant on all four of the grounds of the appeal.
**Conclusion**
  1. It follows that, not being satisfied that there is a case made out on any of the four grounds of appeal, this appeal must be dismissed. I commend both counsel in this case for the considerable assistance they have given to the court, not only through the form of their comprehensive skeleton arguments, but their succinct and direct and, most importantly, helpful oral submissions.

Published: 14/05/2012 09:24

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