EAT (Unfair Dismissal) PRACTICE AND PROCEDURE – Amendment – Appellate jurisdiction/reasons/Burns-Barke
The Appellant succeeded on one ground of appeal at an earlier hearing before the EAT: that the ET had not considered her application to amend her claim to include allegations of indirect race discrimination (direct discrimination already being asserted). As a result, the remaining six grounds were adjourned pending a decision of the ET which might affect their resolution. The ET having rejected her application, the appeal resumed before the EAT. The Appellant sought at the outset to amend her Notice of Appeal. This was refused, applying the principles set out in Khudados v Leggate [2005] ICR 1013, and stressing the importance of finality.
The grounds of appeal were separately considered and rejected. However, the Court had raised at an earlier hearing whether the ET was wrong in law in concluding that the dismissal (which was for misconduct by claiming to be off sick, but working in another job at the time) was fair when it had concluded that the employer’s investigation into the allegations had been seriously flawed, on the basis that in the light of information which had come to light since the dismissal the flaws made no difference. This looked very like a misapplication of section 98(4) for the reasons given in Polkey (especially by Lord Bridge). However, despite this point being ventilated by the EAT at the earlier hearing (after which the case had been remitted to the ET) there had been no application to amend the Notice of Appeal, nor was any such application made at the resumed hearing of the appeals (despite there being an application to amend on other grounds), and the original Notice of Appeal could not sensibly be read so as to raise the point. Consistent with its approach to the application to amend which had been made and dismissed, recognising that there may have been forensic reasons for not pursuing the point and applying the principle that it is not for a court to make arguments for a party but to adjudicate on the dispute the parties wish to have resolved, rather than some other one, the EAT concluded it was not properly open to it to resolve the appeal on this basis. No ground to that effect was before it: no application to amend to include it had been made.
The appeal was dismissed.
Citations:
[2016] UKEAT 0333 – 14 – 0211
Links:
Jurisdiction:
England and Wales
Employment
Updated: 04 February 2022; Ref: scu.577864