Readman v Devon Primary Care Trust

At a rule 3(10) hearing, permission to amend a Notice of Appeal should generally be granted where the proposed new ground is reasonably arguable, particularly where the appellant was previously unrepresented and the hearing provides the first practical opportunity for legal advice.

In applying the relevant discretionary factors, the absence of earlier legal advice may explain why the ground was not pleaded sooner. Ordinary delay and the respondent’s exposure to an arguable appeal will usually carry limited weight. Exceptional delay or prejudice may justify refusal, but the respondent bears a substantial burden where the point has a reasonable prospect of success.

The Employment Tribunal dismissed the appellant’s claim for a redundancy payment, finding that she had unreasonably refused suitable alternative employment. Earlier Notices of Appeal, including allegations of bias, were rejected under rules 3(7) and 3(8) of the Employment Appeal Tribunal Rules 1993.

At a rule 3(10) hearing, the EAT dismissed the bias grounds but permitted the appellant to proceed on a differently formulated arguable ground concerning the Tribunal’s assessment of the reasonableness of refusing the alternative employment. The respondent sought to set that permission aside. The issue was whether the amendment should be revoked in light of delay, prejudice and the merits threshold.

1. Application dismissed. The permission to amend the Notice of Appeal remained in force, and the appeal was to proceed to a full hearing.
2. The principles in Khudados v Leggate and Ors [2005] ICR 1013 governed the exercise of discretion. They were not displaced by the particular circumstances of an amendment sought at a rule 3(10) hearing.
3. Where an appellant, especially an unrepresented appellant, obtains professional assistance for the first time at a rule 3(10) hearing and a new point is identified, it will generally be in the interests of justice to permit amendment if the point is reasonably arguable.
4. In that situation, the application will ordinarily have been made as soon as practicable. The absence of legal advice may provide a full, honest and acceptable explanation for the earlier omission. Direct application of the authorities concerning reasonable practicability in statutory unfair-dismissal time limits, including Dedman v British Building and Engineering Appliances Ltd [1973] ICR 53, would be inappropriate.
5. Delay, respondent prejudice and the public interest in expeditious EAT proceedings remain relevant. However, where the respondent has normally done nothing before the appeal survives the sift, the ordinary consequence that an arguable appeal will proceed is not legitimate prejudice. The respondent bears a substantial burden when seeking to revoke permission granted without its attendance.
6. The proposed ground was reasonably arguable because the Employment Tribunal might have failed to address the appellant’s essential objection to returning to hospital work and instead relied on matters that might not bear on that objection. The EAT expressly made no determination that the ground was correct; that question belonged to the full Tribunal.

• Employment Tribunal, Taunton: dismissed the redundancy-payment claim in a judgment sent on 22 September 2009.
• Employment Appeal Tribunal: earlier Notices of Appeal were rejected under rule 3(7), and a fresh Notice of Appeal was subsequently rejected under rule 3(8). At a rule 3(10) hearing, the bias grounds were dismissed but permission was granted to amend and proceed on a new arguable ground. The respondent’s application to revoke that permission was dismissed.