Appeal No. EAT/870/93
	I N T E R N A L

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 8th February 1994

	Before

	THE HONOURABLE MR JUSTICE MUMMERY (P)

	MRS M L BOYLE

	MR J A SCOULLER

MRS E MAUDE	APPELLANT

LEGAL & GENERAL ASSURANCE SOCIETY LTD	RESPONDENTS

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR S ILLINGWORTH
(Of Counsel)
Messrs Lewis Silkin
1 Butler Place
Buckingham Gate
London
SW1H OPT

For the Respondents	MISS E SIMLER
	(Of Counsel)
	Mr S Thomas
	Legal Adviser
	Corporate Legal Services
	Legal & General Assurance 	Society Ltd
	Legal & General House
	Kingswood
	Tadworth
	Surrey
	KT20 6EU

	MR JUSTICE MUMMERY (PRESIDENT):  This is an appeal from the decision of the Chairman of the Industrial Tribunal on the 23rd September 1993, the Industrial Tribunal being one held at London (South).  The appeal is against his refusal to grant leave to the Applicant to amend her complaint of unfair dismissal and of unlawful deduction of wages contrary to the Wages Act 1976.  The amendment sought is to add a claim of sex discrimination and, in support of that, to add to the 26 paragraphs of details of the complaint of unfair dismissal and unlawful deduction a further 7 paragraphs which relate specifically to indirect or direct discrimination on the grounds of sex and/or marital status.

	In order to understand the basis on which the application to amend was made it is necessary to refer briefly to the facts which have given rise to the application.

	The Applicant is a Mrs Elizabeth Maude who was employed by the Respondents, Legal & General Society Limited from the 1st March 1987 until the 3rd February 1993.  By then she had achieved the position of Recruitment and Training Manager.  On the 3rd February 1993 she ceased to be employed. There was a dispute in the proceedings whether she was dismissed or resigned.  Her case, as set out in the Notice of Application presented on the 30th April 1993, is that she had been unfairly dismissed from her position.  She sets out details relating to the facts in which she founded her claim.  They refer particularly to the poor relationship with her immediate superior manager, Mr Colin Bromley, and to problems of absence from sickness and to poor communication between her and Mr Bromley.

	It is unnecessary to go into all the details of the complaint for the purposes of this application.  The Legal & General Assurance Society put in a Notice of Appearance on the 2nd June.  They set out their side of the case and referred to problems which had arisen from sickness of Mrs Maude over a number of years.  There were allegations of poor time keeping on her part and other matters which will have to be investigated on the full hearing of the complaint by the Industrial Tribunal.

	By a letter dated 17th August 1993 Mrs Maude's solicitors wrote to the Regional Office of Industrial Tribunals at London (South) with an application to amend.  The amendments consisted of first, the addition of a third type of complaint, namely, unlawful indirect or direct discrimination on the grounds of sex and/or marital status; secondly, the addition of a second respondent, Mr Colin Bromley c/o the same address as Legal & General; thirdly, amended details of the complaint which consisted of new paragraphs 27 to 33.  The allegations to be added were these:
		"27.	It is contended that the Applicant was indirectly and/or directly discriminated against on grounds of sex and/or marital status.

		28.	It is contended that Mr Bromley objected to the female members of his department becoming pregnant or planning to have children.

		29.	In early 1992, shortly after his appointment to the position of the Applicant's manager, Mr Bromley asked the Applicant whether or not she was planning to have children.  Mr Bromley added that he knew he should not be asking such a question.  The Applicant replied that she would like to have children.

		30.	In the summer of 1992, Mr Bromley's secretary asked the Applicant about her plans for having a family.

		31.	It has now come to the Applicant's attention that Mr Bromley consistently made similar enquiries of the female members of his department, again indicating that he knew he should not be asking such questions.

		32.	Further, it is contended that Mr Bromley expressly remarked that he found the female members of his department becoming pregnant inconvenient and that he became annoyed at such occurrences.

		33.	It is contended that there is no plausible explanation for Mr Bromley's treatment of the Applicant other than a concerted effort to force her out as he believed that she was likely to start a family shortly."

The letter written in support of the proposed amendments contended that it was not reasonably practicable for Mrs Maude to have filed the discrimination complaint earlier and that only very recently had the Applicant been informed of the facts upon which this complaint is based.

	It was also contended that any delay would not have caused undue prejudice to Legal & General.

	The Department of Legal & General dealing with the legal side of the dispute wrote to the Regional Office on the 19th August 1993 stating that they were in receipt of the letter of the 17th August 1993 and that Legal & General would have to take specialist advice.  They asked for further time to consider the matter and requested that the Chairman delay his  decision.

	On the 14th September 1993 the Legal & General wrote stating the grounds of their objection to the proposed amendments.  Reference was made to the provisions of the Industrial Tribunals (Rules of Procedure) Regulations.  It was contended that Mrs Maude had not given sufficient reasons why the new ground of complaint was not included within her Originating Application or why it should now be allowed outside the three month time limit.  The solicitors, it was pointed out, indicated that it was not reasonably practicable to have filed the complaint earlier in view of the fact that the Applicant had very recently been informed of the facts upon which the complaint was based.  The Society submitted that Mrs Maude was well aware of the alleged facts on which she based her claim of sexual discrimination at the time when the Originating Application was filed.  Indeed, it was added, in relation to her personal treatment, Mrs Maude now refers to incidents in early 1992 and the summer of 1992 but nothing subsequent to that.  Accordingly, it was argued, they should have been included in the original claim when it was presented.  The Society submitted that it was not just and equitable to allow the amendment, particularly as Mrs Maude was now seeking to add a further respondent.  The letter then asked specifically that the Tribunal did not add Mr Bromley as a second respondent.  Mrs Maude was out of time in making the sexual discrimination case.  It would be inappropriate to allow that amendment.  The addition of Mr Bromley as a second respondent produced no added benefit to Mrs Maude as the remedies available would clearly be the same whether or not he was a respondent. It was pointed out that adding him as a respondent would cause undue distress and hardship on him as an individual.

	The Chairman had before him the rival grounds on which he was asked to decide the question of amendment.  By a letter dated 23rd September 1993, the Chairman notified the parties that he refused the amendment sought in the letter 17th August 1993, for the reasons given by Legal & General in their letter of 14th September 1993, with which he agreed.

	Mrs Maude was dissatisfied with the failure of her application to amend.  On the 2nd November 1993 she issued a Notice of Appeal.

	On the appeal Mr Illingworth submitted that the proper approach to the question of amendment had not been adopted by the Chairman.  That approach was that laid down by Sir John Donaldson when he was President of the National Industrial Relations Court in Cocking v. Sandhurst [1974] ICR 650 at page 657A-C where he said:
		"In deciding whether or not to exercise their discretion to allow an amendment which will add or substitute a new party, the tribunal should only do so if they are satisfied that the mistake sought to be corrected was a genuine mistake and was not misleading or such as to cause reasonable doubt as to the identity of the person intending to claim or, as the case may be, to be claimed against.  In deciding whether or not to exercise their discretion to allow an amendment, the tribunal should in every case have regard to all the circumstances of the case.  In particular they should consider any injustice or hardship which may be caused to any of the parties, including those proposed to be added, if the proposed amendment were allowed or, as the case may be, refused."

That was a case where, on appeal, the National Industrial Relations Court decided that an application to name a parent company as a respondent in the place of the original respondent should have been allowed.

	Mr Illingworth referred us to the decision of this Tribunal in the Home Office v. Bose [1979] ICR 481 where it was held that there would be no prejudice to a respondent and no injustice to a respondent in allowing an amendment to a claim of discrimination on the ground of race by the addition of a complaint of unfair dismissal.  A new claim was added though it should be noted there was no application to add any new facts to the complaint.  It was a case of adding another label to the facts already set out in the original complaint.

	Finally, we were referred to another of Lord Donaldson's judgments, this time in the Court of Appeal in British Newspaper Printing Corp. (North) Ltd v. Kelly [1989] IRLR 222 where the application way been to make an amendment of an employee's claim for redundancy by adding the words "and/or unfair dismissal".  Again it will be noted that there was no application to add allegations of facts to those set out in the original complaint.  The passage which Mr Illingworth relies on states that the questions which a Tribunal should ask itself on an application to amend are:
		"`What are the relevant hardships expected to be suffered by the parties if the amendment is or, as the case may be, is not allowed?' and `What would be the injustice to the parties respectively, again, if the amendment is or is not to be allowed?'."

In that case the Industrial Tribunal had declined to allow the amendment.  The Employment Appeal Tribunal allowed an appeal against that refusal.  The Court of Appeal dismissed the appeal against the decision of the Employment Appeal Tribunal.

	Pursuant to those principles, and with particular emphasis on the questions of hardship and injustice, Mr Illingworth's main submission was that the refusal of the application to amend by the Chairman of the Industrial Tribunal had inflicted hardship on Mrs Maude.  Without that amendment she would not be able to pursue a claim for sex discrimination.  On the other hand, there would be no injustice to Legal & General Assurance or to Mr Bromley by allowing the amendment, since most of the matters relied upon in support of the claim for sex discrimination were already in the 26 paragraphs of the original application.  The new allegations were of matters that Mr Bromley or Legal & General Assurance already knew.  These submissions were amplified in the skeleton argument by reference to authorities and with an emphasis by Mr Illingworth on the fact, asserted by Mrs Maude's solicitors in the application letter of 17th August 1993, that she only became aware in July or August 1993 of fresh facts which gave her evidence to support of her claim for sex discrimination.  Mr Illingworth referred particularly to the allegation in the new proposed paragraph 28:
		"28.		. . that Mr Bromley objected to the female members of his department becoming pregnant or planning to have children.

		31.		It has now come to the Applicant's attention that Mr Bromley consistently made similar enquiries of the female members of his department, again indicating that he knew he should not be asking such questions."

It was submitted that Mrs Maude should be allowed to add a claim based, in part, on facts already pleaded and, in part, on new facts or matters which she had no knowledge of at the time when she lodged her complaint.

	It was submitted that the nub of Mrs Maude's complaint had always concerned Mr 
Bromley's conduct.  Her original view was that there was insufficient evidence to support the claim for sex discrimination, claims of a kind which are well known to be difficult to prove.  Her view of the position changed when this further information came to light in the summer of 1993.  As soon as she learnt this further information she made an application to amend.  Her claim of discrimination was based on the original application, plus the further particulars.  Mr Bromley had always been aware of the complaint.  It would unjust to Mrs Maude to be deprived of the possibility of obtaining a substantial award of compensation for sex discrimination.  On the other hand there would be no injustice to either Legal & General Assurance or Mr Bromley, since both would be in the same position that they would have been in if the amendments had been included in the original application.

	Our decision is that this appeal should be dismissed.  We agree with the points in the very clear and concise skeleton argument of the Legal & General Assurance Society.  It is pointed out that Parliament has set a three month time limit for the lodging of applications for compensation for both unfair dismissal and sex discrimination.  Under Section 67(2) of the 1978 Act Parliament has provided:
		"an industrial tribunal shall not consider a complaint under this section unless it is presented to the tribunal before the end of the period of three months beginning with the effective date of termination "

Under Section 76(1) of the Sex Discrimination Act 1975 similar provision is made to the effect that:
		"An industrial tribunal shall not consider a complaint under section 63 unless it is presented to the tribunal before the end of the period of three months beginning when the act complained of was done."

There are provisions which authorise the industrial tribunal to extend the period in certain circumstances.  They form the background to an application to amend.  There are no time limits prescribed in relation to amending applications already made.  The position, as Miss Simler rightly states in her skeleton argument, is that:
		"the Industrial Tribunal has a discretion whether or not to allow a proposed amendment."

It is a matter of what is fair and just in all the circumstances of the case.  It is obviously relevant to take into account whether there will be hardship to an applicant by refusing an amendment and whether there will be prejudice to a respondent in allowing an amendment.  In this case all the relevant circumstances were put on each side to the Chairman of the Tribunal.

	The Chairman expressly stated in the letter notifying the parties of his decision that he had the two letters before him and he agreed with the arguments of the Society in their letter of 14th September.

	This Tribunal will only interfere with an exercise of discretion in those circumstances if it is shown that the discretion has not been exercised on correct principles, or if it is shown that the decision is one which no reasonable chairman, properly directing himself as to the circumstances of the case and the relevant law, would have come to.  We are unable to see how this appeal could proceed on either of those grounds.  The plain fact of the matter is that, looking at all the material before the Industrial Tribunal Chairman, he could not properly have come to any other decision.  When this complaint was presented, on the 30th April 1993, Mrs Maude must have known of the principal facts on which she now seeks to introduce an amendment of sex discrimination.  The main complaints are of how she was treated in 1992 by Mr Bromley.  None of those allegations were included.  All she obtained in the summer of 1993 was some further evidence which would help her to support her claims.  She was well able to make the claim of sex discrimination without that further evidence.  If she had made the initial complaint, there would have been little difficulty in obtaining leave to amend to add further matters which she had only learnt after she had made her complaint to the Industrial Tribunal.

	There are two further aspects of the case which are not satisfactorily explained.  The first is, there is not any detailed information in the papers on the Applicant's side as to how, or when, or from whom or in what circumstances, she came to have the information as to how other women working for Legal & General had been treated by Mr Bromley.  It behoves a party seeking an amendment to introduce a new allegation to explain in some detail why the application was not made at an earlier date or why the allegations were not included in the original proceedings.

	Secondly, it is troubling that Mr Bromley was sought to be added as a respondent to a serious complaint of sex discrimination, without, it appears, any formal or informal notice being given to him by the Applicant's advisers that he was going to be the subject of a personal claim.  Under the provisions of the Sex Discrimination Act 1975 Section 41(1), a claim can be made against an employer for sex discrimination since it is provided that:
		"Anything done by a person in the course of his employment shall be treated for the purposes of this Act as done by his employer as well as by him, whether or not it was done with the employer's knowledge or approval."

It is sought to make a claim not only against the original respondent employer but also against the employee, without him being given formal notice so that he is given a chance to state on what grounds he objects to being joined.  If he had been given notice he might have responded, first, by denying the allegations and, secondly by pointing out, rightly, that the three month limitation period for making such a claim against him had expired before the date of the amendment.

	We say no more about that aspect of the case since we have reached the decision that there are no grounds on which the Tribunal Chairman's decision can be said to be in error of law or to be perverse.  The appeal will accordingly be dismissed.