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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> McGurran v. Co-Operative Wholesale Society Ltd (t/a North Eastern Co-Op) [2001] UKEAT 395_00_3001 (30 January 2001) URL: http://www.bailii.org/uk/cases/UKEAT/2001/395_00_3001.html Cite as: [2001] UKEAT 395_00_3001, [2001] UKEAT 395__3001

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APPEARANCES

 

For the Appellant	MR D STILITZ (Of Counsel) Instructed by Messrs Anthony T Bryson & Co Solicitors 5/7/9 Grey Street Newcastle upon Tyne NE1 6EE
For the Respondent	MISS K GALLAFENT (Of Counsel) Instructed by Messrs Watson Burton Solicitors 20 Collingwood Street Newcastle Upon Tyne NE99 1YQ


 


JUDGE PUGSLEY

1. Those whose professional memory predates the establishment of industrial tribunals will know that the law provided little protection for the mass of the working population. The remedy of wrongful dismissal was rarely invoked by the more modestly paid because of the expense involved and the limited nature of the compensation that could be received. Much of the debate that was generated by the introduction of a statutory framework of employment law are now of purely historic interest. Sadly this case does illustrate one of the fears expressed; the paralysing effect of legalism.
2. This originating application was headed unfair dismissal and the complaint was formulated as follows:

1.) On 5 January 1999 the applicant was suspended from work following an incident in which he took meat from the Simonside store.

2.) On 13 January 1999, following the Applicant's suspension, the Applicant was summarily dismissed for gross misconduct.

3.) For the last 3 years the Applicant has had mental health problems, the symptoms including memory loss. At the time of the dismissal the Applicant's mental health problems were known to the Respondent.

4.) Dismissal by reason of gross misconduct was not a fair reason for dismissal in the case of the Applicant.

3. The tribunal staff coded this claim as an application for unfair dismissal and a claim raising the issue of disability discrimination. The subsequent history is set out in the decision and it is unnecessary to reiterate it at any length. At an interlocutory hearing on 1 July 1999 the Regional Chairman made an order directing:

"that an out of region panel be enlisted and to hear evidence upon the applicant's request for leave to amend the applicant's request for leave to amend his Originating application to claim monies pursuant to the wages provisions of the Employment Rights Act 1996 and to claim that he has been the victim of unlawful discrimination on the grounds of unlawful discrimination on the grounds of disability."

4. In due course Mr Grazin, an employment tribunal chairman, sat alone and in a decision running to some 10 sides of closely typed pages decided that the Applicant should not be allowed to add a claim in respect of unpaid wages and not add a claim that he had been a victim of unlawful discrimination on the grounds of disability. There is no appeal from the decision that the applicant should not be allowed to add a claim for unpaid wages.
5. In essence there are two grounds of appeal; that the Chairman had no jurisdiction to sit alone and that he should have allowed the amendment to include a claim under the disability discrimination legislation.
6. It is of interest – and of concern – that these two discrete grounds of appeal are inter related by a worrying pattern which has emerged in this case. The tribunal does not apologise for expressing a view which may be stigmatised as a jury point; namely, that there seems to be a clash between the culture of the approach by Mr Grazin sitting alone and that adopted by all the others who have considered the mater. The tribunal clerk noted that this was a claim raising unlawful discrimination on the basis of disability. The division of the Employment Appeal Tribunal which considered this case to identify whether a point of law existed was presided over by His Honour Judge David Wilcox and two members. In the course of the judgment he said this:-

".. it is clear that expressly there were raised matters that, on a common sense reading of them, would lead to a conclusion that matters of disability and discrimination were being raised."

We are bound to say that that is the view of all the members of this tribunal.

7. Excessive legalism is the enemy of justice and one of the justifications for a tribunal system is that -–drawing on the wider experience of industrial members – it can bring a more robust and realistic perspective than that of the lawyer alone.
8. In a long and careful judgment Mr Grazin set out the factual background. The applicant had been a butcher and he was dismissed for taking meat for which he failed to make payment. His reason for doing so was that he was suffering from mental illness. The Chairman heard evidence from Dr Morgan and made the finding that at the time the applicant was suffering from mental illness. The learned Chairman considered that he was bound by the Regional Chairman's implicit ruling that it was not open for him to consider the argument that the claim needed no amendment. He pointed out that the direction (which has been set out above) would have included the direction to consider the originating application and to consider, if appropriate, whether leave to amend should be given. He then decided it was not open for him to consider whether the unamended claim contained within it a claim under the disability discrimination legislation.
9. Applying the case of The Housing Corporation v Bryant (1988) ICR 123 the learned chairman then considered whether there was any allegation linking the dismissal with the alleged disability. He decided there was not and therefore decided this was not a case in which the amendment was adding a cause of action or claim which is linked to or, or arises out of the same set of facts as the original claim but was rather a claim which added or substituted a wholly new claim or cause of action which was not connected with the original claim. After reviewing the relevant authorities he decided that the paramount considerations were the relevant injustice and hardship in refusing or granting the amendment. After reiterating the well-known formula that the applicant might have a remedy elsewhere he decided that in the exercise of his discretion he should refuse the amendment.
10. The Appellant's case was that the Chairman erred in law in deciding that there was no pleading linking the Appellant's dismissal with his disability in view of the express wording of the terms of the application which has already been set out.
11. Ms Gallafent argues that on a true construction of the Bryant case the learned chairman was entitled to take the view and cites various passages from the judgment of Buxton LJ to fortify her argument that that whilst the state of mind of the Respondent's knowledge may be relevant to a claim for of disability discrimination the test following Bryant is not relevance but causation.
12. Although we have been referred to a number of authorities we trust we shall be forgiven for not referring to any of them since in our view we consider this is a case when we simply consider that the decision of the chairman is simply wrong. Of course it is always easy with hindsight to criticise the drafting of documents (and of judgments). Both individually and collectively we read what is said in the originating application as saying no more than this:

"I was dismissed. It was unfair. I took the meat but there was a mental reason for that. I have a loss of memory and dismissing me in those circumstances when they knew about my problems was discriminating against me on the grounds of my mental condition and it was unfair."

13. In our view this was a case when in reality the originating application did not need amendment since it flagged up the issue as an existing claim and all the amendment did was to put a signpost over the claim. We consider it unsatisfactory that a decision should be reached on such a fundamental issue as that without that being made explicit by the Regional Chairman and without giving reasons for that decision. However we appreciate that this appeal is concerned whether leave should have been given to amend. We consider it would be a case where a fair minded exercise of discretion would give leave to amend because anyone applying their mind to the issue would know perfectly well what the case was they had to meet. We consider that on any common sense reading of the body of the originating application this was not a case of a new cause of action being added but was merely a change of label which was linked to and arises out of the same facts as the original action. It is difficult to construe the statement of the Appellant's case in any other way than linking his dismissal with his disability.
14. We have formed our own assessment; we are fortified in our view that the tribunal clerk and a previous division of this tribunal which included two industrial members have all construed the case in the same way. There are differences between a disability discrimination case and a case of unfair dismissal. However any tribunal considering a claim for unfair dismissal would have to consider the employer's knowledge and assessment of an employee's mental state in evaluating the fairness of the decision to dismiss. We therefore allow the appeal to substitute the amendment to include a claim for disability discrimination.
15. In view of our decision that the case ought to be amended to include a claim for disability discrimination it is somewhat academic to consider the other ground of appeal. Since it raises an issue of jurisdiction we should deal with it briefly. Mr Grazin does not deal with why he heard the case on his own rather than with a panel.
16. From the terms of this decision it is obvious that we consider the robust common-sense of a tribunal which contains industrial members is the greatest antidote to the curse of legalism. However wise it may be to avail oneself of the services of industrial members the reality is that the rules allow for this matter to be heard by a chairman sitting alone. However important the role of a regional chairman may be in the employment tribunal system we cannot see that a regional chairman has the right – by a direction – to alter or fetter the jurisdiction of a tribunal. We accept the Respondent's submissions that the wording of the rules in relation to the hearing of interlocutory matters under Rule 13(8) differs from the corresponding rules set out in Section 4 of the Employment Tribunals Act 1996 in that in relation to hearing originating applications there is a provision for a chairman to make an order that the matter should be heard by a full tribunal Section 4(5) if certain criteria are satisfied.
17. It is not necessary for us to hack a way through a tangled undergrowth of conflicting dicta in such decisions such as Sogbetun v Hackney LBC 1998 ICR 1264 and Post Office v Howell (2000) IRLR 224 since those cases were concerned with the hearing of the originating application and the question of the discretion which arises under Section 4(5). Sutcliffe v Big C's Marine (1998) IRLR 428 is more relevant. We fully endorse the dicta by Morison J of the propensity amongst certain regions to add to the expense (and misery) of litigation by having almost interminable hearings about part of a case. It is a common practice for judges to expend considerable time and effort in deciding issues of compensation albeit that they have dismissed the case. If there is a subsequent successful appeal on the question of liability much expense is saved.
18. Although we note all that is said about the wisdom of there being members we cannot on the facts of this case construe that case as authority for the proposition that there was an error of law in not having a full tribunal to hear an application as to an amendment. That is an issue which turns more on the construction of documents than on the deciding disputing issues of fact.
19. We therefore allow the appeal and substitute the amendment of a claim under the disability act and we dismiss the appeal as to jurisdiction.