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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Hart v English Heritage (Historic Buildings & Monuments Commission for England) [2006] UKEAT 0055_06_2302 (23 February 2006) URL: https://www.bailii.org/uk/cases/UKEAT/2006/0055_06_2302.html Cite as: [2006] UKEAT 0055_06_2302, [2006] UKEAT 55_6_2302 |
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At the Tribunal | |
On 7 February 2006 | |
Before
THE HONOURABLE MR JUSTICE ELIAS (PRESIDENT)
(SITTING ALONE)
APPELLANT | |
COMMISSION FOR ENGLAND) |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
For the Appellant | Mr Perera 1 Kingswood Close New Malden Surrey KT3 6PX |
For the Respondent | MS RACHEL LEWIS Messrs Farrer & Co Solicitors 66 Lincoln Inn Fields London WC2A 3LH |
SUMMARY
Leave to amend claim to include certain unfair dismissal complaints rejected by Tribunal Chairman. Attempt made before another Chairman to contend that the amendment should be permitted because it merely gave a label to what had already been identified in the body of the claim. This was a fresh argument. Ought the second Chairman to have reconsidered the original Chairman's decision? Observation made on the distinction between review and reconsideration of Tribunal case management rulings and the circumstances where reconsideration is permissible.
"Race discrimination -direct and indirect; harassment on the grounds of my race; victimisation; unfair selection for redundancy; sex discrimination."
He also filled out the section which asks the Claimant to identify a date when the matter of which the Complainant is complaining occurred but only if the Claimant is not complaining about dismissal. He left blank the section which asks those complaining about unfair dismissal what remedy they are seeking. In the body of the claim he set out the details of his complaint. He asserted that he was a Branch Secretary and spent half his time on union duties. He had been transferred to a new job which he claims to have thought was a temporary secondment but was later told that it was permanent. He thought that the job was beyond him, particularly in the time he could devote to it. He says that this job made him more vulnerable to redundancies, and indeed he was selected for redundancy on 6th April 2005. He was given six months notice of dismissal on that date. He therefore put in his application form before his dismissal took effect. It is clear however that claims for unfair dismissal can be lodged after a notice of dismissal is given but before it takes effect; see Section 111 (3) of the Employment Rights Act 1996. Nowhere did he in terms say that he was making a claim for Unfair Dismissal. He did however say this:
"I feel the English Heritage is taking this opportunity to get rid of me and that this is due to my trade union involvement and race discrimination. In the months since taking up the new post I have felt harassed and victimised. Those in senior management I try to communicate with often did not respond or only after a long time. I believe that I have challenged through my work and commitments whilst with English Heritage the institutional racism and bullying prevalent amongst senior management throughout English Heritage."
"In relation to the claim of unfair dismissal this is made on four bases, section 98(4), trade union activities, race and sex. There is reference in the Originating Application to unfair selection for redundancy. The Chairman took into account that if she were to treat the particulars as a new claim presented on 9 March 2005 then the claim would be out of time and it would be the subject of a pre-hearing review to C determine in the case of the complaints of unfair dismissal under Section 98(4) and for trade union activities as to whether it was reasonably practicable for it to be presented within time and in relation to the claims of race and sex discrimination as to whether it was just and equitable to extend the time period. The Chairman ordered that the particulars presented should be treated as a new Originating Application registered and served on the Respondent and that the new Originating Application in relation to the four limbs of the complaint of unfair dismissal should be listed for a pre-hearing review before a Chairman sitting alone to determine whether the claims were out of time and whether it was reasonably practicable in the case of the claims under section 98(4) and for trade union activity or just and equitable in the claims of race and sex discrimination for time to be extended."
"It is clear from her Case Management Discussion Order that she was finding that the original claim presented in June 2004 did not include a claim for unfair dismissal."
On that premise (which as we indicate below seems to have been incorrect) he considered that the Claimant was effectively inviting him to be the Court of Appeal in relation to Ms Lewsey's decision. He said that this was "a power which I do not have and which I decline to exercise."
"… it is abundantly clear from all the evidence that at a stage well in advance of the expiry of the limitation period he was well aware of the importance of a claim being submitted within the limitation period and secondly that during that period of time he was entirely able to conduct written communications both with his union representative and with the Tribunal in relation to the first originating application".
Did Mr Solomons err in law in refusing to extend time?
Was time extended by the presentation of a grievance?
"These Regulations shall apply -
(a) in relation to dismissal and relevant disciplinary action, where the employer first contemplates dismissing or taking such action against the employee after these Regulations come into force; and
(b) in relation to grievances, where the action about which the employee complains occurs or continues after these Regulations come into force,
but shall not apply in relation to a grievance where the action continues after these Regulations come into force if the employee has raised a grievance about the action with the employer before they come into force".
He submitted that even if it can be said that the action continued after the regulations came into force on the 1 October 2004, nevertheless the grievance was first raised earlier in June when the claimant had first raised his complaint about his proposed dismissal with the employers. Mr Perera responded by submitting that there was a further grievance raised on the 4 October which repeated the earlier grievances and further complained that the dismissal ought not to be carried into effect. . This, he submitted, should be seen as a new grievance. I do not accept that merely repeating a complaint already made can amount to a fresh grievance. In my view the effect of regulation 18(b) was that the grievance raised here was not caught by these provisions.
Should Mr Solomons have revisited Ms Lewsey's decision?
Discussion
"(1) Chairmen or tribunals may issue the following -
(a) a "judgment", which is a final determination of the proceedings or of a particular issue in those proceedings; it may include an award of compensation, a declaration or recommendation and it may also include orders for costs, preparation time or wasted costs;
(b) an "order", which may be issued in relation to interim matters and it will require a person to do or not to do something.
"Parties may apply to have certain judgments and decisions made by a Tribunal or a chairman reviewed under rules 34 to 36. Those judgments and decisions are-(a) a decision not to accept a claim, response or counterclaim;(b) a judgment (other than a default judgment but including an order for costs, expenses, preparation time or wasted costs); and(c) a decision made under rule 6(3) of Schedule 4;and references to decision" in rules 34 to 37 are references to the above judgments and decisions only. Other decisions or orders may not be reviewed under these rules."
"Subject to paragraph (4), decisions may be reviewed on the following grounds only
(a) the decision was wrongly made as a result of an administrative error
(b) a party did not receive notice of the proceedings leading to the decision
(c) the decision was made in the absence of a party
(d) new evidence has become available since the conclusion of the hearing to which the decision relates, provided that its existence could not have been reasonably known of or foreseen at that time; or
(e) the interest of justice requires such a review."
There is a more limited power to review a decision not to accept a claim or response because the only grounds on which that can be done are those found in subparagraphs (a) and (e).
Circumstances when case management decisions can be reconsidered.
"There are, as was submitted in the respondent's skeleton, clear and detailed procedures for bringing appeals against interlocutory orders. These are not mere technicalities. They exist to achieve finality and certainty within the processes of civil litigation. If they are ignored by litigants who prefer to air their procedural points all over again at a later case management conference and that kind of action was sanctioned by this court, the aims of the Civil Procedure Rules would be significantly undermined. We would have uncertainty and repetition, not clarity and finality. Of course if there were a true change of circumstances then in my judgment the flexibility which the CPR commend would plainly allow a change of view as to the procedural orders which should be made."
"…we are satisfied that the power to revisit a [case management] issue is not a power to be used in order to have second, third or fourth bite of the cherry, when there has been no material change in facts or in the law, nor is it a procedure to be used to enable a party to go, as it were, chairman shopping, moving from one chairman to another until it can find a chairman who will come up with a decision in his favour.
Similarly in the Onwuka case the EAT commented that although a tribunal had jurisdiction to revisit case management decisions, it would not ordinarily do so absent a material change in circumstances (para 35).
Applying the principles to this case.
Conclusion.