Dass v The College Of Haringey Enfield & North East London & Anor

An appeal tribunal will not determine grounds which are absent from the Notice of Appeal. A skeleton argument does not substitute for a formal amended notice, even where it alerted the respondent to the intended case.

Permission to amend out of time is discretionary. Applying Khudados, serious non-compliance with an order and practice direction, excessive and unexplained delay, and weak proposed grounds may outweigh the appellant’s loss of an arguable appeal.

For a stable employment relationship under the Equal Pay Act 1970, the relevant inquiry includes whether short-term contracts formed a regular succession relating to the same employment and pension scheme. Authorities concerning uninterrupted contracts do not displace that approach where the contracts were interrupted and made at differing intervals.

The claimant sought retrospective admission to the Teachers’ Pension Scheme for periods of part-time teaching. An Employment Judge held that there was no stable employment relationship, or continuity of employment, between 3 July 1995 and 4 January 1996. That finding prevented retrospective pension admission beyond 3 July 1995 under the existing ET1.

On a preliminary hearing, HH Judge Richardson permitted the claimant to lodge draft amended grounds challenging the stable-employment finding. The claimant did not comply with the order. The document subsequently filed addressed continuity of employment under the Employment Rights Act 1996, rather than the proposed stable-employment grounds.

Nearly a year later, the claimant applied to amend the Notice of Appeal. The central issues were whether that late amendment should be allowed and, in assessing its merits, whether the Employment Judge had applied the correct approach under section 2ZA of the Equal Pay Act 1970.

1. Application refused; appeal dismissed. The proposed stable-employment grounds were not in the Notice of Appeal. A skeleton argument was not an amended notice. The Employment Appeal Tribunal therefore could consider those grounds only if it granted retrospective permission to amend.

2. Applying Khudados v Leggate, the claimant’s breaches of the order requiring draft amended grounds within seven days and of Practice Direction 3.10 were clear. The delay was extreme. Although counsel had given a full and honest explanation, it was not acceptable, particularly after the order and the Tribunal’s later correspondence made the omission plain. The overriding objective did not favour allowing the amendment.

3. The proposed grounds also had little merit. The Employment Judge’s four features of a stable employment relationship were consistent with the European Court’s decision in Preston, the House of Lords’ decision in Preston (No 2), and paragraph 115 of Preston (No 3). They included a succession of short-term contracts made at regular intervals, concerning the same employment and pension scheme.

4. The Employment Judge had in substance directed himself in accordance with section 2ZA of the Equal Pay Act 1970, despite not citing it. His reference to the possibility that a worker might be called upon frequently when needed showed that he considered periods without a contract.

5. Slack and Fox established that a stable employment relationship can exist through an uninterrupted succession of contracts. They did not alter the applicable approach where, as here, the relevant contracts were interrupted and concluded at differing intervals. Nor did Fox decide that stable employment necessarily survives a transition from short-term to permanent employment. In any event, that issue was immaterial because the Employment Judge had found no stable relationship before the permanent contract began.

6. The original grounds had not been permitted to proceed, and the continuity-of-employment ground was conceded not to state the correct test. Refusal of the amendment therefore disposed of the appeal.

• Employment Appeal Tribunal: refused permission to amend the Notice of Appeal out of time and dismissed the appeal: [2014] UKEAT 108_12_2006.
• Employment Tribunal: Employment Judge’s decision sent to the parties on 20 September 2011 held that no stable employment relationship existed between 3 July 1995 and 4 January 1996.