Flatman v London Borough of Southwark

The exclusion from an Employment Tribunal's contractual jurisdiction for a claim for damages or a sum due in respect of personal injuries is broad. It includes a claim for compensation for the lost chance of receiving a discretionary benefit under a personal-injury scheme, even where framed as a contractual claim. The Court of Appeal has jurisdiction in principle to grant permission against an Employment Appeal Tribunal preliminary decision striking out grounds before the respondent is called. Permission should nevertheless be refused where the proposed ground has no realistic prospect, lacks evidential foundation, was not properly advanced below, or has been settled. Acceptance of the amount originally claimed under one head meant that the overriding objective did not require permission to pursue a larger claim. The construction of the scheme's discretionary clause was left open.

The appellant, a residential social worker, suffered a back injury while employed by the respondent local authority. After his resignation, an Employment Tribunal found constructive dismissal and awarded £16,258.18, including loss of earnings, future loss and injury to feelings. The Employment Appeal Tribunal allowed only an increment ground to proceed to a full hearing. The respondent later paid £1,000, and the appellant withdrew that appeal and a cross-appeal.

He applied out of time for permission to appeal to the Court of Appeal on increments during the period of employment, the rate of a possible office-based job, and a claim under clause 7 of the Personal Injury Allowance Scheme. The central issue was whether permission should be granted and whether the Employment Tribunal had jurisdiction to entertain compensation for the lost chance of a discretionary personal-injury payment.

1. Permission and increments. The extension of time was conceded. The court held that it had jurisdiction in principle to grant permission to appeal against an Employment Appeal Tribunal preliminary decision striking out grounds before the respondent had been called upon to answer them. Permission was nevertheless refused on the increment point. The original ground sought £1,000, no larger claim had been made clear to the respondent at settlement, and £1,000 had been paid and accepted. Applying the overriding objective in Part 1 of the Civil Proceedings Rules, justice did not require permission to argue for more: paras [9], [27]-[28].
2. Office-based employment. The proposed argument had not been run below and lacked evidence that an office job would produce lower earnings. The Employment Appeal Tribunal had made a broad-brush assessment of future loss at 13 weeks after considering mitigation. There was no realistic prospect of establishing error or justifying a remittal, so permission was refused: paras [29]-[30].
3. Personal Injury Allowance Scheme. The court left open whether the proviso to clause 7 covered a back injury or was confined to partial impairment of the limbs or faculties identified in the table. A narrow construction had force, but it was neither adopted nor rejected without proper argument and consideration of the authorities. The court proceeded on the assumption that, in principle, a benefit might have been available: para [34].
4. Employment Tribunal jurisdiction. The contractual rights under the scheme were assumed to fall within section 3(2) of the Employment Tribunals Act 1996, but section 3(3) and Article 5 of the Employment Tribunal Extension of Jurisdiction (England and Wales) Order 1994 excluded claims for damages or sums due in respect of personal injuries. That exclusion covered a claim for the loss of a chance of receiving a discretionary personal-injury payment. The phrase was construed broadly, supported by Howe v David Brown tractors (Retail) Ltd [1991] 4 All ER 30 CA and Walkin v South Manchester Health Authority [1995] 1 WLR 1543: paras [35]-[41].
5. Disposition. Lord Justice Schiemann refused permission to appeal on all the points pursued. Lord Justices Sedley and Jacob agreed: para [43].

• Court of Appeal (Civil Division) On [2003] EWCA Civ 1610, the application for permission to appeal from the Employment Appeal Tribunal was refused on all pursued grounds.
• Employment Appeal Tribunal A preliminary judgment permitted the appeal to proceed only on the increment ground. The respondent later paid £1,000; that appeal and the appellant's cross-appeal were withdrawn.
• Employment Tribunal The tribunal found constructive dismissal and awarded £16,258.18, comprising sums for unlawful deductions, unfair dismissal, future loss and injury to feelings.