Employment Cases Update

Amending an ET1 - Case Round-Up: May 2018

Date published: 09/05/2018

In this month's round-up, Mark Shulman, consultant solicitor with Keystone Law, looks at a round-up of recent cases on the relevant issues for ETs when deciding whether to allow an ET1 to be amended.

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Mark Shulman, Consultant Solicitor at Keystone Law

AMENDMENTS TO ET1
Relabelling
In the seminal decision of Selkent Bus Co Ltd v Moore [1996] ICR 836, Mummery J distinguished "the addition or substitution of other labels for facts already pleaded" from "the making of entirely new factual allegations which change the basis of the existing claim". Two of the recent EAT decisions below have considered these alternative scenarios. We also look at another decision where an amendment was refused in an "obviously hopeless" case.

Background
In Reuters Ltd v Cole UKEAT/0258/17/BA, Mr C suffered from a disability (a chronic depressive illness). His original ET1 made claims of discrimination arising from disability (section 15 EqA 2010) and of failure to make reasonable adjustments (section 21 EqA 2010).

Prior to a preliminary hearing, Mr C's solicitors supplied a "Proposed List of Issues for Agreement". These extended beyond the pleaded claims and included claims under the EqA 2010 for direct and indirect discrimination (sections 13 and 19 of the EqA 2010). Reuters objected to the proposed addition of such claims with the result that Mr C made an application to amend, contending that in the light of the "guidance in Selkent, the claims "arise from significantly the same facts as the original claims…" and were a relabelling exercise.

At a CMC, the Regional EJ agreed with Mr C and granted leave to amend. The EJ's views were that "…no new facts or matters to those set out in the claim form were relied upon" (i.e. it was relabelling). Further, the EJ stated that "Whether the claims have been presented outside of the applicable time limits and/or whether it is just and equitable for an extension of time to be granted are matters to be determined by the Tribunal at the final hearing".

Relabelling?
At the EAT appeal it was common ground between the parties that if the proposed amendment was simply relabelling, there would be no need to consider the question of whether the claim was in time.

Was it truly a case of relabelling? Various case authorities were considered by the EAT, including the Court of Appeal decision in Abercrombie & Others v Aga Rangemaster Ltd [2014] ICR 209. In that case Underhill LJ said that when considering an application to amend, the focus is on "the extent to which the new pleading is likely to involve substantially different areas of inquiry than the old: the greater the difference between the factual and legal issues raised by the new claim and by the old, the less likely it is that it will be permitted".

On the time limit point, Underhill LJ stated that "… Where the new claim is wholly different from the claim originally pleaded the claimant should not, absent perhaps some very special circumstances, be permitted to circumvent the statutory time limits by introducing it by way of amendment. But where it is closely connected with the claim originally pleaded - and a fortiori in a re-labelling case - justice does not require the same approach …".

In Reuters, the EAT was persuaded that the amendment would not be a case of relabelling because the new claim involved a greater area of factual enquiry. A claim under section 13 for direct discrimination would involve a more onerous test than a claim for discrimination arising from disability under section 15 and required a more demanding factual enquiry. There was also no relabelling because the existing section 15 claim (for discrimination arising from disability) had not alleged direct discrimination against Mr C. And insofar as inferences could be drawn to establish the further ingredients of a section 13 claim, they would be inferences of new fact.

Therefore, the EJ had been wrong to hold that the section 13 claim was a mere relabelling exercise. The EJ should have considered the exercise of her discretion, having regard to all the relevant factors, which would include the time limit point (as the application to amend had been made outside the primary 3-month time limit).

As the application was not one of relabelling, the case was remitted to the same Regional EJ to consider the exercise of discretion on the proposed amendment.

Out of time?
Would the ET definitively have to determine the time point when deciding on the application to amend? The EAT said that whilst it would itself have followed Galilee v The Commissioner of Police of the Metropolis UKEAT/0207/16 (it is only necessary to demonstrate a prima facie case that the just and equitable ground was satisfied), the parties in the present case agreed that the question of how and when the time point should be determined must be left to the EJ.

The case of Patka v BBC & Anor UKEAT/0190/17/DM is another recent example of the relabelling argument being rejected.

Background
The Claimant worked for the BBC's World Service Languages unit in London. His original ET claim alleged that he had suffered what could broadly be described as pay-related race discrimination.

He contended that World Service Languages staff were paid an average of £7,400 less than staff on the same grade working for Network News in London and that at his level (SM2), the difference in average pay was more than £18,700 per annum. He believed the main reason for these pay differentials arose from the fact that 74.4% of World Service Languages staff in London were from black and minority ethnic backgrounds, whilst 80.2% of Network News staff were from white majority ethnic backgrounds.

Different types of discrimination alleged
At an initial Preliminary Hearing when the Claimant was acting in person, the EJ noted that "The complaint is of direct, not indirect discrimination". However, at a subsequent Preliminary Hearing a different EJ recorded that there was indirect discrimination because there was a policy or practice which "was racially discriminatory because the difference in pay between the two groups was due to the difference in the racial composition of the two groups".

After that hearing and in the light of legal advice received, the Claimant made an application to amend the list of issues "…to make clear that my complaint of discrimination against the Respondents is a complaint of direct and/or indirect discrimination on grounds of race". He also wanted to include a further basis for arguing his complaint of direct discrimination -  to include a "Danfoss" complaint (an equal value pay claim).

The application to amend was considered at a third Preliminary Hearing. Whilst some amendments were permitted, others were refused. Specifically, Selkent was considered by the ET, but the Claimant was not permitted to add a claim of indirect discrimination – it was not considered as a case of re-labelling. Although the factual basis of the complaints might not have changed, the ET considered that it was clear that the case had previously been pursued as one of direct discrimination and permitting it to be re-labelled as one of indirect discrimination would mean that further factual considerations would arise and "there will be a whole raft of additional and complex legal issues".

And the ET did not see the Danfoss argument as a mere clarification; this raised questions as to whether the Claimant was doing work of equal value to his comparators and was not simply a re-labelling exercise.

Balance of hardship
The EAT concluded that the EJ had not erred in finding the amendment alleging indirect discrimination was more than a simple re-labelling. But that did not mean that the ET was bound to refuse the application to amend. Indeed, the EJ had recognised that and taken into account a range of relevant factors, as identified in Selkent.

Had the ET erred because, even if there was an entirely new cause of action (indirect discrimination), that claim was brought in time - "a factor of considerable weight" – and therefore should be allowed? No, said the EAT. Firstly, the ET had permissibly taken the view that the question whether the Claimant's claims were in time (which depended on whether it was found that there really was a continuing policy or practice or entirely separate pay decisions), needed to be resolved at a final Full Merits Hearing. This was therefore a neutral point in the balancing exercise.

Secondly, very different evidential and legal considerations would arise for determination if the indirect discrimination claims were to be added.

And thirdly there was the issue of prejudice. The application to amend had already de-railed the listing of the Full Merits Hearing and given the additional evidence that would be required to address the indirect discrimination complaints, allowing further claims to be added would only add to the delay (the Respondents having effectively already completed most of the preparatory work for the final hearing).

To the extent that the Claimant's real intention was to resurrect the Danfoss argument, he faced similar objections to those that applied to the indirect discrimination claim. The ET had permissibly concluded that the new way of putting the Claimant's case was not simply a re-labelling exercise - the Danfoss argument was a substantively new way of putting his complaint and in the circumstances, the ET had reached a permissible view on the balance of prejudice.

Comment
As the EAT itself commented, "the real difficulty in this case was that the Claimant was seeking to amend his claim to add substantively new causes of action and ways of putting his case at a very late stage in the proceedings and after he had previously nailed his colours to one particular - and different – mast".

The judgment emphasises the need for Claimants to properly articulate their case in an ET1 from the start of the proceeding. If it becomes apparent that any amendments are needed, they should be considered at the earliest possible time and preferably with the benefit of legal advice (which in the present case was obtained at a rather later stage in the proceedings).

"Obviously hopeless" claims
In Herry v Dudley Metropolitan Borough Council & Anor UKEAT/0170/17/LA, an EJ had inadequately explained why a request to amend an ET1 was refused and the decision was set aside on appeal. But in a pyrrhic victory, the Claimant's application to amend was then refused by the EAT – the proposed amended claims were "obviously hopeless".

Background
The Claimant, a school teacher, brought a large number of claims against his former employers. In one of those claims (the subject of the appeal), he originally put in an ET1 claiming unfair dismissal, discrimination (but not categorising the type of discrimination) and victimisation. The Claimant alleged that he was not selected and interviewed for the role of a Design and Technology Teacher because he had previously brought ET claims against the Respondent.

The Claimant had been given an oral warning in June 2011. In June 2015 he became aware that it was part of his record. In April 2016 he requested that it be removed from the record and subsequently sought to amend his ET1 application (within time) to add claims of victimisation, harassment relating to disability and direct disability discrimination on the grounds that the Respondent had refused or failed to remove the warning from his record.

The EJ considered the guidance in Selkent but concluded that the amendment should not be allowed because it contained "… new substantial inadequately detailed claims with no discernible causal link to the subject of the original claim form. …". The EAT decided that on the facts, the EJ had been right on this point.

Secondly, whilst the new claims raised in the proposed amendment were made in time (i.e. within 3 months from his April 2016 request for the record to be amended), the EJ did not regard that as a sufficient reason for the amendment to be allowed. The EAT said that this too was correct - a claim in time was "not a sufficient determinant in and of itself" as to whether an amendment should be allowed.

In refusing permission to amend, the EJ had said that:

"… The unexplained resurrection in correspondence of the issue of a warning which a respondent could reasonably conclude had long since ceased to be a matter of concern to the claimant in the light of his inaction since June 2015 is a relevant factor for me to take into account in my balancing exercise. …".

However, the EJ had not explained why, having held that the claim was in time (on the basis of events after April 2016 when the Claimant had asked for the warning to be removed), any delay in the period from June 2015 was relevant. Therefore, the EJ had been wrong to treat delay since 2015 as a material factor in deciding whether to permit an amendment.

Also unexplained was the inconsistency in the EJ's approach in that she had allowed a separate amendment which, when properly analysed, was materially indistinguishable. As with the amendment under appeal, the EJ had observed that the other amendment also concerned new substantial claims with no discernible causal link to the subject matter of the original claim form. Neither of the claims was out of time. However, the EJ had observed:

"…[the other amendment] does not relate to a past event which the claimant has sought to revive in correspondence…".

So, this difference was the principal factor identified by the EJ which led to the refusal of the amendment and was therefore determinative.

Was the decision to refuse the amendment Meek compliant (see Meek v City of Birmingham District Council [1987] IRLR 250)? No, said the EAT, affirming that the Judgment of an ET must contain sufficient findings of fact and reasoning to enable a party to know why they have won or lost.

The appeal was therefore allowed. However, rather than remitting the case to the ET, the EAT decided to exercise its own power to reach a decision on whether to grant the amendment.

Paramount considerations
In accordance with Selkent, the EAT considered all of the relevant circumstances to be taken into account. "Paramount considerations" when doing so were the relative injustice and hardship involved in refusing or granting the amendment.
Factors in favour of granting the amendment application were:

  • the claim to which it related was not made out of time;
  • whilst additional evidence would be needed for hearing the new claims, it would be fairly limited in scope;
  • the additional costs which would be incurred by adding the claim were not a substantial factor against its grant.

Consideration of merits
But, the Claimant had frankly admitted during the appeal hearing that none of the documentation submitted by him in support of his application for the amendment (nor the amendment itself) contained the necessary statutory ingredients to establish the new claims.
Not only did the Selkent case refer to considering "all the circumstances" when exercising the discretion to allow an amendment, but the EAT itself has more recently indicated that the merits of an amendment may be relevant (Miss Gillett v Bridge 86 Ltd UKEAT/0051/17/DM). If a proposed claim is "obviously hopeless", that is a relevant consideration when considering whether there is any injustice is caused to a Claimant by not being able to pursue it.

In the particular circumstances of the case, not only could the new claims not succeed, but the allegations in the proposed amendment did not raise the matters relevant and necessary to bring them within the scope of claims for direct discrimination, harassment or victimisation. So, on the facts, the Claimant would suffer no injustice or hardship by not being able to pursue them and balancing the factors for and against, permission to make the amendment was refused.
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Mark Shulman is a Consultant Solicitor with Keystone Law and an accredited workplace and employment mediator. His blog on new employment legislation can be found here.