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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> McKenzie v London Borough Of Brent [1997] UKEAT 930_97_1610 (16 October 1997) URL: http://www.bailii.org/uk/cases/UKEAT/1997/930_97_1610.html Cite as: [1997] UKEAT 930_97_1610

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APPEARANCES

 

For the Appellant	MR S BENTLEY (Representative)
For the Respondents	MR S DEVONSHIRE (of Counsel) Instructed by: Mr Haggar London Borough of Brent Chesterfield House 9 Park Lane Wembley Middlesex HA9 7RW


 


MR JUSTICE MORISON (PRESIDENT): This is an appeal brought by the applicant against a decision of an Industrial Tribunal Chairman dated 30th June 1997. By that decision the Chairman refused the applicant's application to amend her Originating Application to include a complaint of unfair dismissal. The Chairman indicated that he or she did not consider that a hearing was required to consider the issue of amendment as the matter had been fully argued in the correspondence between the parties and the tribunal. By letter dated 1st July 1997 the Chairman, through the Regional Secretary, identified the documents to which the Chairman had had regard in arriving at that decision.

The background to this may be shortly stated. Miss McKenzie had been employed by the London Borough of Brent. Her employment came to an end as a result of a redundancy situation. She made an application to the Industrial Tribunal which was on the correct form IT1 and which was received by them on 14th January 1997. That form contains as its first box an identification of the nature of the complaint which is being made. The instructions over the box are:

"Please give the type of complaint you want the tribunal to decide (for example: unfair dismissal, equal pay). A full list is given in booklet ITL 1. If you have more than one complaint please list all of them."

A booklet ITL 1 contains the various types of claim which an applicant may present to an Industrial Tribunal and differentiates between the various heads such as unfair dismissal, unlawful deduction from wages and breach of contract, as well as equal pay and other claims for discrimination. That box was not completed by the applicant.

In paragraph 10 of the IT1 under the rubric "Unfair dismissal applicants only" the applicant had ticked the box headed "Compensation only: to get an award of money".

In paragraph 11 of the IT1 the applicant is invited to give details of her complaint and is told that if there is not enough space for the answer, a separate sheet can be attached. In this case Miss McKenzie produced a lengthy answer to paragraph 11. In the course of it she said, describing the termination of her employment, that she thought that this was:

"... unfair and unjust as I stated to Mr Gardner who stipulated that if I felt that way I had the right to take up a case of Unfair Dismissal."

She said that she felt:

"... very strongly about this situation, and although I may not have a clear straightforward legal remedy."

She then made a second point:

"(2) The other point also regarding my Employment is that on my return to work, I initiated a contract with my Employer Brent for a Car loan ..."

and then various particulars are given and she ends up by saying:

"... Thus initiating unfair deduction of wages on a car loan."

It seems to us that Counsel for the respondents who were the former employers, the London Borough of Brent, was correct when he described that document as being at the very least "ambiguous". Although, as I have indicated, there was a reference to the phrase 'unfair dismissal', and a complaint about the treatment that she had received, and a reference to the fact that she had a right to take up a case of unfair dismissal, it is not immediately apparent on reading this document that that is what she is complaining about. Accordingly, the Industrial Tribunal, in our judgment very correctly, by letter dated 15th January 1997 addressed to the applicant, invited her to complete Box 1 specifying the exact nature of her claim. A few days later they received an answer to their request in this form:

"Unauthorised deduction from salary under Wages Act 1986 Breach of Contract"

It follows, therefore, that from the tribunal's perception they were dealing not with a claim of unfair dismissal, but with two other heads of claim.

The matter was then listed for hearing after the employers had put in their answer to the complaint. It is fair to say that the employers answer did in part with deal with the complaint of unreasonable behaviour in relation to the termination of her employment, but in our judgment, they were entitled to do that without in any way accepting that there was a claim for unfair dismissal. The London Borough of Brent was entitled to defend itself against any allegation of unfair behaviour, even if it did not technically found a claim against them.

Subsequently Miss McKenzie instructed Mr Bentley to act on her behalf. On 20th May he informed the industrial tribunal of his instructions and requested that the case which was due to be heard should be postponed so that he could acquaint himself with the papers. Nine days later he served on the London Borough of Brent's advisers a long request for further and better particulars, and in the course of that lengthy letter under the heading "OTHER MATTERS" he wrote this:

"It is clear that the originating application and the notice of appearance deal with the applicant's claims of breach of contract, unfair dismissal and unauthorised deductions. I mention this as I am aware that the Tribunal has queried the original absence of complaint in Box 1 of the "IT 1"."

That letter was responded to by the relevant department of Brent which said:

"I shall deal with your last point first, because the question of the nature of your client's claim is relevant to your request for further particulars.

I am afraid I do not agree that the IT1 contains a claim for unfair dismissal. Ms. McKenzie was asked twice, by the Tribunal and by myself, to state the nature of the claim she wished to pursue. She replied to the Tribunal that she was claiming for "unauthorised deduction from salary under Wages Act 1986, Breach of Contract" and to me that her claims were for "breach of contract - misrepresentation, and unfair deduction of wages". This is consistent with the narrative contained in her IT1, which does not make any complaint about her dismissal save insofar as she considers it to be in breach of the secondment agreement."

The letter continued:

"If Ms McKenzie now wishes to make a claim of unfair dismissal, she is quite entitled to do so but she will of course have to persuade the Tribunal to exercise its discretion to admit the claim out of time in her favour. Unless or until there is a claim for unfair dismissal, I do not propose to provide replies to your request for further particulars of the IT3."

It was against that background that the Industrial Tribunal was required to consider the application for leave to amend. It was in those circumstances that the Chairman refused the application in the terms which I have indicated.

In a conspicuously able and succinct submission made by Mr Bentley on Miss McKenzie's behalf, he challenges the lawfulness of the decision made by the tribunal Chairman. He says in the first place that the Originating Application contained in within it sufficient information to identity a claim for unfair dismissal. We have already indicated our view that at best we consider the Originating Application to have been ambiguous, but it does seem to us that by the time the applicant had replied to the Industrial Tribunal making an informed election as to the claim that she was making, it is not possible to contend that at the time when the tribunal was considering the application for leave to amend, that they should have taken the view that the originating application originally contained a complaint of unfair dismissal.

Alternatively, he submitted that the tribunal ought not to have reached its decision without having an oral hearing. This was not a case of a hopeless application for leave to amend, it would have been a case which required the Chairman to listen to arguments on both sides. He said that it was an arguable point.

With great respect, we do not agree with that submission. By reaching the conclusion that he or she did, the Chairman was avoiding causing any prejudice to either of the parties. Had the application for leave to amend been granted, then the amendment would have dated back to the date of the Originating Application and the London Borough of Brent would have been deprived of their opportunity of arguing the time limit point. By refusing the application for leave to amend, the applicant was entitled, as the London Borough of Brent had said, to make a further Originating Application when the question of time would inevitably be considered.

It seems to us in those circumstances, that this was a case which the Industrial Tribunal Chairman was well able to deal with, without the need for an oral hearing.

Thirdly, it is submitted, that the judicial discretion which is plainly invested in a tribunal when considering an application for leave to amend, had not been properly exercised. Our attention has been drawn to the decision in Selkent Bus Co. Ltd. v Moore [1996] ICR 836. It is a decision of this Court where my distinguished predecessor was laying down guidelines to Industrial Tribunals on the correct approach to applications for leave to amend. We reject the submission that there has been a breach of those guidelines. It seems to us that this was a decision which fell within the discretion of an Industrial Tribunal Chairman to deal with without an oral hearing. Secondly, it seems to us, that there is no basis for suggesting that the documents to which the tribunal Chairman referred had not been properly considered. There is nothing to indicate that that is so.

The fourth point is the submission that the learned Chairman placed improper emphasis on the respondents' comments regarding the unfair dismissal claim being out of time. Fifthly, it is said that the tribunal Chairman did not balance the hardship to the parties, the balance of injustice test to which reference is made in the Selkent decision, and we were invited, therefore, to substitute our decision for that of the tribunal and make the orders for particulars requested.

We do not accept that either of the last two submissions which were made by Mr Bentley are sustainable. It seems to me entirely clear that the Chairman has manifestly taken into account the balance of hardship to the parties in the way that I have indicated. It was the least unjust decision that could be made at that time, because it did not prevent the applicant from making a fresh complaint which would then raise directly the time issue which would then have to be dealt with.

We recognise that some Industrial Tribunal Chairmen might have taken the view that there should be an oral hearing to deal with the time limit point on the application for leave to amend, but we are not prepared to say that the way this Chairman exercised his or her discretion to deal with it on paper and to leave it for a new application to be made could be described as wrong or perverse. This was within the margin of appreciation accorded to Industrial Tribunal Chairmen on interlocutory matters such as this. Accordingly, we will dismiss the appeal.