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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Woodward v. Abbey National Plc [2004] UKEAT 0089_04_1806 (18 June 2004) URL: http://www.bailii.org/uk/cases/UKEAT/2004/0089_04_1806.html Cite as: [2004] UKEAT 0089_04_1806, [2004] UKEAT 89_4_1806

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APPEARANCES

 

For the Appellant	MR JEFFREY BACON (Of Counsel) Instructed by: Messrs Russell-Cooke Solicitors 2 Putney Hill London SW15 6AB
For the Respondent	MR RICHARD POWELL (Of Counsel) Instructed by: Messrs DLA Solicitors Victoria Square House Victoria Birmingham B2 4DL


 


SUMMARY

Application for leave to amend IT1. Respondent opposes. Leave to amend given in some respects and refused in others. Lack of adequate reasons for the decision. Remitted to fresh Tribunal.

HIS HONOUR JUDGE J R REID QC

1. We have before us an appeal and cross-appeal from the decision of a Tribunal held at London Central on 7 November2003, the decision being sent to the parties on 26 November. The decision is headed 'Order' but a later communication from the Employment Tribunal confirms that the so-called Order does in fact contain the Extended Reasons for the decision.
2. By the decision the Tribunal allowed the Applicant, Mrs Woodward, to re-amend her IT1 in certain respects but it disallowed the proposed re-amendment in so far as paragraphs 7 and 8 of the document were concerned. Mrs Woodward appeals to us against the decision to refuse the amendment in respect of paragraphs 7 and 8. The Respondent, Abbey National (I think it is now called Abbey) appeals by way of cross appeal in respect of the permission to make the other amendments sought.
3. In very brief form it can be said that the appeal is on the basis that the Tribunal did not have evidence before it on which it could properly refuse the amendment to paragraphs 7 and 8 and/or that it was perverse or came to a conclusion that no Tribunal could come to on the one hand and on the other hand the cross-appeal is on the basis that the decision is flawed in that reasons are not properly given and it is impossible for them to understand why it is they have lost.
4. At the commencement of this appeal the members of the Employment Appeal Tribunal having read the papers had formed a preliminary view which we communicated to the parties to the effect that on a preliminary view a case where both appeal and cross-appeal should be allowed and the matter remitted to another Tribunal for a re-hearing.
5. The parties were unable between them to accept that conclusion and we do not wish to attribute any blame to anyone for that. The hearing therefore continued. It has to be said that the longer the hearing has gone on the clearer it has become to us that our initial view was a correct view. The difficulty that we have with the Order so far as the appeal is concerned is that there is a reasoned decision set out in these terms. "We have given careful consideration to balancing the injustice and hardship which would be suffered by the Respondent in having to obtain detailed information of a job for which the Applicant applied to a third party with whom the Respondent has no connection some five years ago as against the injustice and hardship to the Applicant. The Applicant has been allowed to pursue her claim under Section 47(B) of the Employment Rights Act. She has referred to other allegations much nearer in point of time which could form the basis of such a claim. We do not consider the allegation in respect of ACI is vital to the Applicant's claim and the difficulty and trouble to which the Respondent would be put in defending it in our view far outweighs the benefits which the Applicant would receive in being allowed to pursue it. In accordance with the guidelines set down in the case of Selkent Bus Co Ltd v Moore [1996] IRLR 661, we exercise our discretion to exclude those 2 paragraphs out of 29 paragraphs of the re-amended Details of Complaints."
6. What is not explained there and is not set out anywhere in the material in the short decision is what the evidence was on which the Tribunal was relying, what the factors were that they took into account in balancing the injustice and the hardship or indeed any material from which the parties could see how the balancing act had been made. The evidence which was apparently called before the Tribunal so far as it was oral evidence consisted simply of that of Mrs Woodward. Her evidence however was fairly limited in scope and did not so far as we can tell deal with injustice and hardship. For example there is nothing in the material before us to show to what extent the Tribunal took into account the assertion that is made that the ACI claim was a very substantial part of the Applicant's claim and that its absence might very substantially affect the quantum of compensation she would hope to recover.
7. Equally there is nothing to indicate what it was by way of injustice and hardship that Abbey would suffer in its difficulties in finding out detailed information in relation to that ACI job. The essence, as we understand it, of the claim being made by Mrs Woodward in relation to this is that she suspects that an unfavourable reference of one sort or another was given which prevented her from obtaining the job which she asserts had been offered to her but the offer of which was then withdrawn.
8. We think that when one looks at that material and that decision it cannot properly be said that the decision was perverse or one to which no Tribunal could properly come or that it was wrong in law in the light of the decision in Selkent because we do not see in the decision enough material for us to be able to spell out what it was the Tribunal was taking into account and how it took it into account. We were referred to the decision in Meek, so familiar to the Employment Appeal Tribunal and in particular to the passages at paragraph 8, the quotation from Brain in paragraph 9 and the quotation from Martin v Glynwed in paragraph 11.
9. The decision so far as we can see it falls far short of explaining albeit briefly and even to those who were present at the hearing how it was that the Tribunal came to that decision. I should say in passing that a certain amount of sound and fury was expended on the question of where the decision in Meek stood in relation to the decision of the Court of Appeal in English v Emery Reimbold & Strick Ltd. It was suggested to us on behalf of Mrs Woodward that the English case being together with two others appeals to the Court of Appeal from High Court decisions were not directly in point and that the passages in the judgment of the Court of Appeal there in particular where the Master of the Rolls deals with the decision in Flannery and the postscript at paragraph 118 do not represent the position in the Employment Tribunal or the Employment Appeal Tribunal.
10. In our view there is no substantive difference between the law as set out in English and the law as set out in Meek. The test in each case is 'Have adequate reasons been given?' The adequacy of reason must to some extent depend on the nature of the matters in issue and in the nature of things therefore an Employment Tribunal decision will frequently be much more rough and ready than a decision of the High Court not least because Employment Tribunal is intended to be a largely lay Tribunal from which legalese should so far as practicable be excluded. Of course, times had moved on since Meek was decided and given the now vast and extended jurisdiction of the Employment Tribunal inevitably it follows that decisions of the Employment Tribunal must frequently now be extremely full, extremely lengthy and extremely legalistic. But we do not think it is necessary to embark on any detailed comparison of Meek and English. It does not seem to us there is a material difference between them and whichever one one uses, so far as the appeal is concerned the decision does not adequately make plain the basis upon which it was made or the factors taken into account or where those factors came from. It follows that the matter must go back to a fresh Tribunal to be reconsidered.
11. We bore in mind that there is a hearing date in the not too distant future for the substantive claim which Mrs Woodward has and that she is very anxious if in so far as practical to maintain that date firstly for cost reasons and secondly for the very obvious reason that this is a matter which has dragged on for a long time and it is very desirable that it should be disposed of as soon as possible but it seems to us that in the light in particular of what was said by the Court of Appeal in O'Kelly at paragraph 90 it would be wholly impractical for us to seek in effect to re-try the matter here and now. So far as the Respondent's cross appeal is concerned, it can be said that the same applied to that because the only reasoning we have in relation to the decision is at paragraph 2(i) of the so called Order 'the re-amended details of complaint filed with the Tribunal on 4 July be admitted and accepted as the details of complaint in substitution of the original details of complaint attached to the IT1 save the allegations contained in paragraphs 7 and 8 of the details of complaint be excluded.'
12. That gives us nothing in the way of reasoning. True it is that when one is looking at a decision of the Employment Tribunal one should look at it bearing in mind what the parties know was given in evidence and that one should always be slow to say that the reasoning is inadequate but it seems to us clear that, on that reasoning or lack of it, it is quite impossible to say why it was that Abbey lost in relation to that part of their claim.
13. A good deal of time was devoted before us to the suggestion that they could see what the problem was and that they had failed to identify the points which were being raised. In our view that is not the position. Selkent was clearly in issue. Reference was also made to Smith v Zeneca. The position in this case was that an argument was being advanced clearly that leave to amend should not be granted that and in support of that Selkent was cited. It was suggested to us that this was what is called by Harvey, a case at a Type 2 Selkent case and that therefore it was obvious why the amendment was allowed.
14. In our judgment that is not that clear. So far as Selkent itself is concerned we think that it is important not to be carried away by how text books may try to reanalyse Selkent but to go back to look at what Mummery J, as he then was, in fact said. One begins at paragraph 18 of Selkent. Taking it piece by piece the Tribunal has a discretion to regulate its procedure including the discretion to grant leave for the amendment of the Originating Application and/or the Notice of Appearance. There is no express obligation in the Industrial Tribunal Rules of Procedure requiring the Tribunal or a Chairman to seek or consider written oral representation before deciding whether to grant or refuse. The Chairman may exercise his discretion in a number of ways – see paragraph 20 of Selkent. He can refuse an application without seeking or considering representations from the other side. He can in effect set up a hearing or he can grant leave to amend without a hearing and leave it to the other side to come back to the Tribunal if it does not like what has been done ex parte. Most importantly I quote in paragraphs 21 and 22:

"21

Whenever the discretion to grant an amendment is invoked, the tribunal should take into account all the circumstances and should balance the injustice and hardship of allowing the amendment against the injustice and hardship of refusing it.

22

What are the relevant circumstances? It is impossible and undesirable to attempt to list them exhaustively, but the following are certainly relevant:

(a) The Nature of the amendment

(b) The applicability of time limits

(c) The timing and manner of the application"

15. Now, in this particular instance there were very substantial amendments being sought. They could not properly be said simply to be changing of labels. The proposed amendments set out the case which was going to require much more in the way of factual evidence than would have been required under the original IT1 and in those circumstances the Respondent, Abbey having advanced the case that no amendment should be allowed and having in respect least at paragraphs 7 and 8 advanced the case of prejudice whether with or without adequate evidence was entitled to know why it was that the Tribunal was not going to accede to its opposition to the application.
16. In our view therefore this cross-appeal too must be allowed and the result of that is that the entirety of the application must be returned to a new Tribunal to be reheard. We are extremely anxious that the existing hearing date should not be lost and with that in mind we invited Counsel to consider what directions might possibly be given in order to not only maintain the compass of the reheard application within reasonable limits but also to ensure that it could come promptly so that the new hearing date might not be lost. We will hear Counsel on precisely what those directions should be but the sort of things that we had in mind were directions for the exchange of any witness statements to be relied on, the exchange of skeleton arguments and the preparation of a combined bundle of documents all those matters to be dealt with in a short space of time. We would also be minded to suggest that there be no live evidence as opposed to the evidence of the statements which hopefully should cut down time but these are all matters on which we will hear submissions to Counsel.