Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REF: 1808/17

 

 

CLAIMANT: Robert Bell

 

 

RESPONDENT: Petrogas Group UK Ltd t/a Applegreen

 

 

DECISION ON A PRE-HEARING REVIEW

The decision of the tribunal is as follows:-

 

(1) the claimant's claim form, presented to the tribunal on 13 April 2017 did not include a claim for harassment, pursuant to the Employment Equality (Sexual Orientation) Regulations (Northern Ireland) 2003 and to be included requires to be the subject of an application for an Order for leave to amend, pursuant to the Rules of Procedure;

 

(2) the claimant's application for an order for leave to amend his claim to include a claim for harassment, pursuant to the Employment Equality (Sexual Orientation) Regulations (Northern Ireland) 2003, is granted; and the said claim is so amended;

 

(3) the respondent, if it wishes, to present an amended response to the claimant's claim, so amended, is ordered to do so within 28 days from the date this decision is issued to the parties; and

 

(4) as a consequence of the tribunal's said decision, the tribunal has made various case-management directions/orders, as set out at Paragraph 5.2 of this decision.

 

Constitution of Tribunal:

Employment Judge (sitting alone): Employment Judge Drennan QC

Appearances:

The claimant appeared in person and was not represented.

The respondent was represented by Mr S McKee, Barrister-at-Law, instructed by Francis Hanna & Company, Solicitors.

 

Reasons

 

1.1 The claimant presented a claim to the tribunal of unfair dismissal and unlawful deduction from wages on 30 April 2017.

 

1.2 The respondent presented a response to the said claim, denying liability for the claimant's said claims on 12 June 2017.

 

1.3 In accordance with the tribunal's normal case-management procedures, in relation to such claims, a Case Management Discussion was arranged for 27 July 2017, by way of Telephone Conference Call. In the record of the Case Management Discussion on 27 July 2017, dated 27 July 2017, it is recorded by the Vice President as follows:-

 

" 1. I attempted, in the course of discussion, to clarify the exact nature of this claim. It seems clear that the claim includes a claim of alleged unfair dismissal and alleged unlawful deduction from wages. The claim form refers to harassment but does not specify the nature of the harassment and does not state that the harassment was on a prohibited ground. The claimant stated that he meant harassment on the ground of sexual orientation."

 

1.4 This reference by the Vice President to the claimant's claim form is a reference to what is stated in Paragraph 7.4 of the claim form, under details of claim at Sub-paragraph 9 thereof:-

 

"9. This has just got worst and I was being harassed by them and ended being dismissed from the company."

 

1.5 In view of the uncertainties set out in the Record of Proceedings dated 27 July 2017 the Vice President directed a Case Management Discussion, with both persons appearing in person, to clarify the said uncertainties.

 

1.6 At the Case Management Discussion on 16 August 2017, which was before me, as set out in the Record of Proceedings dated 18 August 2017, I recorded the following:-

 

" 2. ... He stated that, when he set out in Paragraph 9 of his claim (7.4 Details) the reference to 'I was being harassed by them' this was a reference to 'I was being harassed on the grounds of my sexual orientation'. The respondent's representative disputed such a claim had been made out and, if the claimant wished to amend his claim, as set out above, it required to be the subject of a pre-hearing review, to determine whether such an amendment should be granted."

3. In light of the foregoing, it was agreed a pre-hearing review would be directed to determine the following issues:-

 

'(1) Whether the claimant's claim form presented to the tribunal on 13 April 2017 included a claim for harassment, pursuant to the Employment Equality (Sexual Orientation) Regulations (Northern Ireland) 2003?

 

(2) If not, whether the tribunal should grant leave to amend the claimant's claim to include a claim of harassment, pursuant to the Employment Equality (Sexual Orientation) Regulations (Northern Ireland) 2003, in the terms set out in Paragraph 2 of the Record of Proceedings of the Case Management Discussion held on 16 August 2017, as set out in the Record of Proceedings dated 18 August 2017?. "

 

As a consequence, this pre-hearing review was arranged to determine the said issues, referred to above.

 

2.1 The claimant gave oral evidence at this pre-hearing review. After considering the said oral evidence and the oral and written submissions of the respondent's representative, together with the claimant's claim form and the respondent's response form, together with an interlocutory notice, dated 20 June 2017, I made the following findings, as referred to in the following sub-paragraphs.

 

2.2 The claimant prepared the claim form without assistance; and, as referred to above, throughout these proceedings, he has been a litigant-in-person. However, prior to making his claim to the tribunal, he had sought assistance from the Labour Relations Agency in relation to what he alleged had happened to him in his employment with the respondent. I am satisfied that, in the course of his discussion with the Labour Relations Agency, it was explained to him how to make a claim to the tribunal, including a claim online, and he was told of the 'normal' three month time-limit for making a claim. In light of what he was told, he then issued his claim online on 13 April 2017, as soon as possible following the termination of his employment on 7 April 2017, taking into account the said three month time-limit. He drafted the claim form without any assistance and presented it himself to the tribunal online.

 

Throughout his evidence to the tribunal, the claimant emphasised that he believed, when he filled in the claim form and referred to 'being harassed by them', this was sufficient to include a claim of harassment on the grounds of sexual orientation. He stated he was not aware he was required, in his claim form, to specify between the different types of harassment, pursuant to the anti-discrimination legislation, and, further, he was unaware of the precise differences between these types, as a litigant-in-person. Not without some hesitation, I am prepared to accept this evidence, given he is a litigant-in-person. He further emphasised, during the course of his evidence, that by his reference to harassment, as referred to above, he was seeking to refer to such harassment, on grounds of sexual orientation, which had taken place during the course of his employment and which he said commenced from in or about August 2016, when he filled in an equality monitoring form, to the date of his dismissal. In particular, he stated he was relying on a number of specific incidents during this period, involving a number of site managers, who were then employed by the respondent. I understand, during this period, the claimant had a lengthy period of sick leave for five weeks from in or about November 2016 to 22 December 2016.

 

The claimant acknowledged that, if this claim of harassment, on grounds of sexual orientation, was properly before the tribunal (see later), there would require to be additional details provided by him to the respondent's representative, of these specific incidents of harassment on grounds of sexual orientation.

 

2.3 The respondent's representative informed the tribunal, in the course of his submissions, the said site managers, referred to by the claimant, during the course of his evidence, no longer worked for the respondent; but he fairly and properly accepted that all were in a position to be contacted by the respondent to give evidence, if required; albeit, this would involve a more difficult administrative task for the respondent in preparing its defence to any such claim if it was allowed to proceed (see later).

 

2.4 The respondent issued on 20 June 2017 to the claimant, by e-mail, a Notice for Additional Information and/or Discovery, which the claimant had not replied to by the date of this pre-hearing review. It sought, as one might have expected, further particulars of the harassment referred to in the claim form. The claimant accepted, in evidence, he received this Notice by way of e-mail but, by letter dated 29 June 2017, the tribunal then sent to him the invitation letter for the Case Management Discussion, which took place on 27 July 2017. The claimant did not provide any good reason for not replying to the said Notice within the 21 days set out therein; but I have little doubt the claimant, as a litigant-in-person, decided to put aside the Notice, pending the Case Management Discussion which was to be held on 27 July 2017, as notified to him on 29 June 2017 and to await any further instructions he was given at that hearing.

 

2.5 In a claim form to the tribunal, whether online or otherwise, in Paragraph 7 it is headed 'Details of your Claim' and a claimant is asked to tick boxes to indicate the type of complaint he/she wishes the tribunal to consider.

 

In Paragraph 7.1(d) there is a box whereby a claimant can state that he/she was discriminated on the grounds of sexual orientation. The claimant did not tick the box nor indeed any of the said boxes. He did not give any explanation for this failure and, by not ticking this box relating to sexual orientation, there was no link on the face of the document to the harassment referred to in Paragraph 7.4 of the claim form.

 

2.6 In Paragraph 7.4, under 'Details of your Claims', it is pointed out that it is important that a claimant gives details to support the complaints that have been selected at Paragraph 7.1 and refers to various details which can be included, such as, for the purposes of these proceedings:-

 

"If you are complaining about discrimination by way of victimisation, the type of discrimination that you are relying on, eg sex, race, disability, etc."

 

3. Relevant legislation and legal authorities

 

3.1 The following, for the purposes of these proceedings, are relevant Regulations, for the purposes of the Employment Equality (Sexual Orientation) Regulations (Northern Ireland) 2003:-

 

"3. Discrimination on grounds of sexual orientation

 

(i) For the purposes of these Regulations, a person ('A') discriminates against another person ('B') if -

 

(a) on grounds of sexual orientation, A treats B less favourably than he treats or would treat other persons; or

 

...

 

4. Discrimination by way of victimisation

 

(i) For the purpose of these Regulations, a person ('A') discriminates against another person ('B') if he treats B less favourably than he treats or would treat other persons in the same circumstances, and does so by reason that B has -

 

(a) brought proceedings against A or any other person under these Regulations;

 

...

 

(c) otherwise done anything under or by reference to these Regulations in relation to A or any other person, or

 

(d) alleged that A or any other person has committed an act which (whether or not the allegations so states) would amount to a contravention of these Regulations;

 

or by reasons that A knows that B intends to do any of those things, or suspects that B has done or intends to do any of them.

 

...

 

5. Harassment on grounds of sexual orientation

 

(i) For the purposes of these Regulations, a person ('A') subjects another person ('B') to harassment where, on grounds of sexual orientation, A engages in unwanted conduct which has the purpose of effect of -

 

(a) violating B's dignity, or

 

(b) creating an intimidating, hostile, degrading, humiliating or offensive environment for B.

 

(ii) Conduct shall be regarded as having the effect specified in Paragraph (i)(a) or (b) only if, having regard to all the circumstances, including, in particular, the perception of B, it should reasonably be considered as having that effect.

 

...

 

41. Period within which proceedings to be brought

 

(i) An industrial tribunal shall not consider a complaint under Regulation 34 (Jurisdiction of Industrial Tribunals) unless it is presented to the tribunal before the end of -

 

(a) the period of three months beginning when the act complained of was done; or

 

...

 

(iii) A court or tribunal may nevertheless consider any such complaint or claim which is out of time if, in all the circumstances of the case, it considers that it is just and equitable to do so.

 

(iv) For the purposes of this Regulations ...

 

(b) any act extending over a period shall be treated as done at the end of that period;

 

3.2 Relevant Rules of Procedure are contained in Schedule 1 of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005 ('the Rules of Procedure'), insofar as relevant and material:-

 

"1(1) A claim shall be brought before an industrial tribunal by the claimant presenting to the Office of the Tribunals the details of the claim in writing. Those details must include all the relevant required information ... .

...

 

(4) Subject to ... the required information in relation to the claim is -

 

(a) each claimant's name;

 

(b) each claimant's gender;

 

(c) each claimant's date of birth;

 

(d) each claimant's address;

 

(e) the name of each person against whom the claim is made ('the respondent');

 

(f) each respondent's address;

 

(g) details of the claim;

 

...

 

(3)(1) The Secretary shall not accept or register the claim (or a relevant part of it) if it is clear to him that one or more of the following circumstances applies -

 

(a) the claim does not include all the relevant required information;

 

(b) the tribunal does not have power to consider the claim (or that relevant part of it); or

 

(c) ... .

 

[Paragraph 3(c) was pursuant to Article 19 of the Employment (Northern Ireland) Order 2003, relating to complaints about grievances and presentation of a claim and breach of Paragraphs 2 - 4 of that Article, but which provision has been revoked since 2011.]

10(2) Examples of orders which may be made under paragraph (1) are orders -

 

...

 

(q) giving leave to amend a claim or response."

 

 

It is to be noted that the relevant Rules of Procedure in Great Britain, relating to presentation and acceptance of claims are now different to those in this jurisdiction; and, in particular, pursuant to Rule 12(1)(b) of Schedule 1 of the Rules of Procedure contained in the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013, a tribunal, in Great Britain, is allowed to reject a claim form, if it is in a form which cannot sensibly be responded to or is otherwise an abuse of the process. (In Trustees of William Jones's School Foundation v Parry [2016] UKEAT/0088, it was suggested such a power was ultra vires.)

 

3.3 In a recent decision, in the case of Mechkarov v Citibank NA [2017] UKEAT/0119/17, His Honour Judge David Richardson, in the course of his judgment referred to what should be considered by a tribunal in deciding whether a claim form contains a claim of a particular kind. He stated:-

 

" ... the correct approach is to look at the claim form as a whole, giving it a generous construction to see whether it identifies an act complained of and the nature of the complaint made about that act. If that is the case, there will have been an effective complaint. If it is broad and general in nature, further detail may be given by way of further information. If that is not the case, an amendment will be required. ... ."

 

He then referred, with approval, to the decision of Mr Justice Charles in the case of Smith v Zeneca (Agrochemicals) Ltd [2000] UKEAT/1450/98, when it was stated:-

 

"58. ...

 

(d) the correct approach to deciding whether an originating application was an effective complaint to prevent time from running is to take the approach taken in the Dodd case and consider on a generous approach to the construction of the originating application whether it identifies an act or acts complained of and that the claim is one of discrimination (as defined) or sex discrimination (as more narrowly defined),

 

(e) if the originating application does that it then prevents time running in respect of claims of such descriptions based on such act or acts (but not other claims of discrimination or sex discrimination as defined) and this has the result as in the Dodd case that further information as to, or amplification and explanation of, complaints or claims included in the originating application would be properly classified as particulars, and

 

(f) if the originating application does not do that the addition of complaints or bases of claim based on other acts complained of constitutes the introduction of new complaints or bases of claim and their introduction should be classified as an amendment and one of the considerations in the decision to allow it would be the time limit set by Section 76 Sex Discrimination Act (see the Selkent case and paragraphs 41 and 42 hereof)."

 

He further referred, with approval, to the judgment of Waller LJ in the Court of Appeal in the case of Office and National Statistics v Ali [2004] EWCA Civ 1363, in which he stated:-

 

" 39. In my view the question whether an originating application contains a claim has to be judged by reference to the whole document. That means that although box 1 may contain a very general description of the complaint and a bare reference in the particulars to an event (as in Dodd), particularisation may make it clear that a particular claim for example for indirect discrimination is not being pursued. That may at first sight seem to favour the less particularised claim as in Dodd, but such a general claim cries out for particulars and those are particulars to which the employer is entitled so that he knows the claim he has to meet. An originating application which appears to contain full particulars would be deceptive if an employer cannot rely on what it states. I would for my part think that insofar as Quacoopome suggests to the contrary it should not be followed. Therefore I would hold that paragraph 25A seeks to bring into the proceedings a new claim. "

 

3.4 In Grimmer v KLM Cityhopper Ltd [2005] IRLR 596, Judge Prophet, the President of the EAT, at that time, ruled that the relevant Regulations and the requirement to supply the then specified minimum information must not be interpreted so as to deny a claimant access to the Employment Tribunal system. The case concerned a woman who sought to complain that her request for flexible working for childcare reasons had been refused. She put 'flexible working' on her claim form and gave as details of her claim that:-

 

"The company's business argument for refusing my application is based upon the assumption that, if they concede to my request, others will be requiring similar/same working arrangements."

 

The Employment Tribunal refused to admit the claim on the grounds that she did not provide 'details of the claim' as required under the then Regulations in Great Britain, which, at that time, were the same as Rule 1(1) of the Rules of Procedure in Northern Ireland allowing the appeal, Judge Prophet stated that:-

 

"The Rules of Procedure cannot cut down on an Employment Tribunal's jurisdiction to entertain a complaint which the primary legislation providing an employment right and powers to determine. If there is a conflict the Rules must give way."

 

He further went onto state that the threshold for access should, in the interests of justice, be kept low. When determining whether a claim form contains the required details of the claim, the test for the tribunal is:-

 

"Whether it can be discerned from the claim as presented that the claimant is complaining of an alleged breach of an employment right which falls within the jurisdiction of the Employment Tribunal. If the Judge thinks that further particulars are necessary, they can be ordered."

 

If this issue in Grimmer was now required to be determined by a tribunal under Rule 12 of the 2013 Regulations, as referred to above, it would appear that, in Great Britain, the question would be whether the claimant could 'sensibly be responded to'. It is suggested in Blackstone Employment Law Practice 2017 that it is likely that the outcome would be the same.

 

3.5 HH Judge Richardson in Mechkarov, at Paragraph 26 of his judgment stated that he did not think Grimmer was inconsistent with the approach set out in Smith and Ali, as referred to above, although, in his view, it was addressing a rather different issue which had arisen under the then 2004 Regulations which then applied in Great Britain.

 

HH Judge Richardson also emphasised in Paragraph 27 of his judgment that:-

 

" It is of course not necessary that the claim form should identify the complaint with the label that a lawyer would apply. If the act is identified and the nature of the complaint is identified, the fact that there is no label or the label is wrong or only one label is given where two would be applicable will not be determinative against the claimant."

 

3.6 In the decision of the Employment Appeal Tribunal in the case of Badra v Gardiner and Theobald LLP [2010] UKEAT/0191/10, HH Judge Serota QC made it clear that, although the requirements for what is to be included in a claim may be minimalist, there is still a minimum requirement to say what the case is. There must be some specific allegation of a claim within the jurisdiction of the Employment Appeal Tribunal or a reference to facts from which the nature of the claim can reasonably and objectively be discerned. On the facts of the case, it was held that the claim form failed to identify a claim for equal pay.

 

3.7 In Abbey National v Chagger [2009] IRLR 86, a case where an issue had arisen as to whether a discrimination case based on colour included a claim based on race, Underhill J observed at Paragraph 33 obiter:-

 

"33. Thus claimants who formulate their claim on the basis of 'colour discrimination' will inevitably in fact be complaining, whether or not they appreciate it, of discrimination on the grounds of race and ethnic origin, and therefore of two of the factors which explicably attract the operation of Section 54A. No doubt those who are properly advised will, to avoid any room for argument, make clear in their pleadings that, even if the discrimination of which they complain was expressed in terms of colour, they are alleging discrimination on the ground of race or ethnic origin as well. Where cases where that has not been done we would expect the position to be clarified - with the assistance of the tribunal if necessary - at the case-management."

 

3.8 As Girvan LJ said in Magill v Ulster Independent Clinic & Others [2010] NICA 33 (a personal injury case):-

 

" ... a personal litigant cannot have an unfair advantage against represented parties by seeking to rely on inexperience or a lack of proper appreciation of what the law requires.  The application of legal principles poses a duty on the court to examine cases objectively without fear or favour to any party, represented or unrepresented.  While courts are conscious of the difficulties faced by a personal litigant representing herself and will strive to enable that person to present her case as well as they can, the dictates of objective fairness and justice preclude the court from in any way distorting the rules or the requirements of due process because one party is unrepresented."

 

In Jones v Longley [2016] EWHC 1309, Master Matthews stated that:-

 

"Although at the margins a personal litigant may be offered a little more leeway than a party who is legally represented, 'there are no special rules for litigants-in-person as compared with those litigants who are represented.

 

The above case law was approved by Horner J in Smith and Hughes v Black and Persons Unknown [2016] NICH 16:-

 

Girvan in Peifer v Castlederg High School and WELB [2008] NICA 49, an Employment Tribunal case stated:-

 

"When parties before the tribunal appear in person, without the benefit of legal representation, the lack of legal experience on the part of an unrepresented person may lead to the pursuit of irrelevancies and unnecessary proceedings. Whilst tribunals must give some latitude to personal litigants who may be struggling in a complex field they must also be aware that the other parties will suffer from delay, incur increased cost, be exposed to unstructured and at times irrelevant cross-examination. While we must have a sympathy for a tribunal faced with such a situation the tribunal remains under the same duty to ensure that the overriding objectives and Regulation 3 are pursued."

 

3.9 As stated in Blackstone's Employment Law Practice at Paragraphs 6.37/6.38 the general position in relation to the issue of amendments in Employment Tribunal is set out:-

 

"6.37

 

(1) Both the claimant and respondent can amend their pleadings and in deciding whether to grant any such amendments the tribunal should attempt to do justice between the parties.

 

(2) This amendment can include addition of new claim, in limited circumstances, even where the time-limit for the new claim has expired.

 

...

 

(4) where amendment leads to an adjournment by the hearing, the party at fault will frequently have to pay the costs incurred.

 

6.38 Selkent principles

 

The leading authority in Selkent Bus Co Ltd v Moore [1996] ICR 836. The EAT there stated that, when faced with an application to amend, a tribunal's discretion should be exercised in a way which is consistent with the requirements of 'relevance, reason, justice and fairness consisted in all judicial discretions ... ."

 

3.10 In Harvey on Industrial Relations and Employment Law, Volume 4, Section P1, it has been helpfully stated:-

 

"311 Employment Tribunals have always had a general discretion to grant leave to amend the claim.

 

...

 

The power is, as Mummery J pointed out in Selkent Bus Co  v  Moore (in the course of a detailed review of the practice and procedure relating to applications to amend), a judicial discretion to be exercised 'in a manner which satisfies the requirements of relevance, reason, justice and fairness inherent all judicial discretions'. Applications to amend may cover a wide range of matters. Some may be minor, such as the correct of clerical and typing errors or the addition or deletion of factual details of existing allegations, whereas others may be substantial involving new factual allegations which change the basis of the claim, or the additional of an entirely new claim or cause of action, or the additional substitution of respondents. There is no time-limit for making an application to amend, and it may be made at any time up and including the date of the substantive hearing (although, as will be seen, the longer delay in making the application of a substantial nature, the greater the scope for it being rejected). Most applications are however made in advance of the hearing and are dealt with by an Employment Judge at a preliminary hearing.

 

311.01 The way in which the discretion will be exercised will, as indicated by Mummery J in the Selkent case, largely be governed by the nature of the application itself. If it is manifestly hopeless, it may be refused outright, without any reference to the respondent. If the application is not sufficiently substantial or controversial to justify seeking representations from the respondent, it may be granted ex parte, although in this situation, if the other side subsequently objects, the tribunal should consider the objections and decide whether to affirm, rescind or vary the order which has been made. If, however, the application to amend is arguable and substantial, and could reasonably be opposed, the correct procedure is for a tribunal to ask the other side whether it consents or objects to the amendment, and if it objects, to state the grounds of objection. A decision will then be made after hearing both sides. Before making that decision, however, the tribunal must take account of all the circumstances, and balance the injustice and hardship of allowing the amendment against the injustice and hardship of refusing it. Although an oral hearing is not required to determine every application to amend, it will normally be necessary, where the refusal of the amendment would mean that the claimant's claim will certainly fail, where the application for the amendment is contested, and where the application requires close examination of all the circumstances before a decision can be made as to whether to grant or refuse the application ( Smith v Gwent District Health Authority [1996] ICR 1044 at 1050, EAT)."

 

311.04 A distinction may be drawn between (i) amendments which are merely designed to alter the basis of an existing claim, but without purporting to raise a new distinct head of complaint; (ii) amendments which add or substitute a new cause of action but which is linked to, or arises out of the same facts as the original claim; and (iii) amendments which add or substitute a wholly new claim or cause of action which is not connected with the original claim at all ...

 

312 Amendments falling within Category (1) are not affected by the time-limits, as the nature of the original claim remains intact, and all that is sought to be done is change the grounds on which the claim is based (it is to be noted that, when determining whether the proposed amendment falls within the existing claim as pleaded or constitutes an entirely new claim, regard is to be had to the whole of the ET1, not just to the general description of the complaint in Box 1 : Ali v Office of National Statistics [2004] EWCA Civ 1363. ... The new cause of action will not be time-barred because no separate cause of action is being added, but again whether the amendment is allowed will depend on factors such as hardship and delay. Selkent Bus Co Ltd v Moore is illustrative of the problems faced by a claimant who seeks to amend at a late stage. ... The factors which influenced the EAT in refusing the amendment were -

 

(a) the making of 'a new positive case' of automatic unfair dismissal, which require fresh primary facts to be established by evidence;

 

(b) the lack of any explanation from the claimant as to why the new grounds, which must have been known to him at the time, had not been put forward in the original application;

 

(c) the absence of hardship to the claimant as his unfair dismissal case would in any event proceed on the original basis; and

 

(d) the greater hardship to the respondents, if the amendment were allowed, resulting from an adjournment of the proceedings and a longer hearing, with a concomitant increase in costs that would probably not be recoverable."

 

...

 

312.01 So far as Category (ii) is concerned, the tribunals and courts have always shown a willingness to permit a claimant to amend to allege a different type of claim from the one pleaded if this can be justified by the facts set out in the original claim. It is usually described as putting a new 'label' on facts already pleaded. Thus a claimant was rarely prevented from amending his claim where, for example, he had sought a redundancy payment when his proper claim was for unfair dismissal, or vice versa, as the factual basis for both types of claim was invariably the same ... It has been held that it is not good law to apply the time-limits to such amendments ... .

 

312.05 It is only in respect of amendments falling into Category (iii) - entirely new claims unconnected with the original claim as pleaded - that the time limits will require to be considered. In that situation, the tribunal must consider whether the new claim is in time and, if it is not, whether time should be extended to permit it to be made ( Selkent Bus Co Ltd v Moore [1996] ICR 836 at 843 H).

 

312.06 In order to determine whether the amendment amounts to a wholly new claim, as opposed to a change of label, it will be necessary to examine the case as set out in the original application to see if it provides a 'causative link' with the proposed amendment (see Housing Group v Bryant [1999] ICR 123) ...

 

However, although there may be an absence of a link between the case as pleaded in the original claim and the proposed amendment, this will not be conclusive against the amendment being allowed. In Evershed v New Star Asset Management [UKEAT/0249/09], Underhill J pointed out that it is no more than a factor, the weight to be given to it being a matter of judgment in each case (Paragraph 24).

 

312.07 When considering whether to allow an amendment an Employment Tribunal should analyse carefully the extent to which the amendment would extend, the issues and the evidence ... The Court of Appeal [in Evershed] approved this approach and agreed the amendment did not raise 'any materially new factual allegations' ... Rimer LJ held 'the thrust of the complaints in both is essentially the same'. The fact the whistleblowing claim would require an investigation of the various component ingredients of such a case did not mean that wholly different evidence would have to be adduced

 

...

 

312.09 Although the hardship/injustice test set out in ... Selkent ... provides tribunals with a residual discretion to allow a new claim to be introduced by way of amendment, notwithstanding that the claim would otherwise be rejected upon the application of the tests in the escape clauses relevant to the statutory time limits, it is more likely to make a real difference where the 'not reasonably practicable' formula applies then where an extension of time may be granted on the just and equitable ground. This is because the latter test enables a far wider range of factors to be taken into account than does the former, which is solely focused on whether it was feasible to have presented his claim in time. Consequently there is unlikely, in practice, to be any material difference in the application of the 'just and equitable' test and the 'balance of justice and hardship' test; if an amendment were refused under the former test, it is difficult to envisage what additional matters might cause it to be granted under the latter (see Ali v Office of National Statistics). The position is quite different where reasonably practicable is the statutory test as illustrated by the decision in TWGU v Safeway Stores ... ."

 

Further according to Underhill J in the TGWU v Safeway Stores Ltd [UKEAT/0092/07], case 'the position on the authorities is that an Employment Tribunal has a discretion in any case to allow an amendment which introduces a new claim out of time'; though he did add : 'no doubt 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, but that will be a discretionary consideration and not a rule of law'. Interestingly, Underhill J allowed a new out of time claim by way of amendment and, in doing so, applied the hardship/injustice test rather than reasonable practicability.

 

3.11 Under Rule 10(2)(p) of the Industrial Tribunals Rules of Procedure 2005, contained in Schedule 1 of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005 ('the Rules of Procedure'), an Employment Judge has a discretion whether or not to give leave to amend a claim. Over the years, there has been considerable legal authority as to how that discretion should be exercised in relation to the various heads of distinction, referred to in Harvey, as set out above, including, in particular, the well-known guidance of Mummery J in the case of Selkent Bus Company v Moore [1996] ICR 836, as referred to above. Of course, in determining whether or not to exercise the discretion to grant the amendment, each case will depend on its own particular facts and fact specific.

 

In a recent decision, in the case of Abercrombie & Others v AGA Rangemaster Ltd [2013] EWCA Civ 1148, Underhill LJ has reviewed the authorities in this area, which I consider is helpful to repeat in some detail:-

 

"47 ... There is nothing in the Rules or the case-law to say that an amendment to substitute a new cause of action is impermissible. The Judge evidently had in mind the language of Mummery J in the relevant part of the guidance in Selkent which he was seeking to follow. The passage reads:

 

'(4) Whenever the discretion to grant an amendment is invoked, the tribunal should take into account  all the circumstances and should balance the injustice and hardship of allowing the amendment against the injustice and hardship of refusing it.

 

(5) What are the relevant circumstances? It is impossible and undesirable to attempt to list them exhaustively, but the following are certainly relevant:

 

(a) The nature of the amendment

 

Applications to amend are of many different kinds, ranging, on the one hand, from the correction of clerical and typing errors, the additions of factual details to existing allegations and the addition or substitution of other labels for facts already pleaded to, on the other hand, the making of entirely new factual allegations which change the basis of the existing claim. The tribunal have to decide whether the amendment sought is one of the minor matters or is a substantial alteration pleading a new cause of action.

 

(b) The applicability of time limits

 

If a new complaint or cause of action is proposed to be added by way of amendment, it is essential for the tribunal to consider whether that complaint is out of time and, if so, whether the time limit should be extended under the applicable statutory provisions ...

 

(c) The timing and manner of the application

 

An application should not be refused solely because there has been a delay in making it. There are no time limits laid down in the Rules for the making of amendments. The amendments may be made at any time - before, at, even after the hearing of the case. Delay in making the application is, however, a discretionary factor. It is relevant to consider why the application was not made earlier and why it is now being made: for example, the discovery of new facts or new information appearing from documents disclosed on discovery. Whenever taking any factors into account, the paramount considerations are the relative injustice and hardship involved in refusing or granting an amendment. Questions of delay, as a result of adjournments, and additional costs, particularly if they are unlikely to be recovered by the successful party, are relevant in reaching a decision.'

 

If the final sentence of point (5)(a) is taken in isolation it could be understood as an indication that the fact that a pleading introduces 'a new cause of action' would of itself weigh heavily against amendment. However it is clear from the passage as a whole that Mummery J was not advocating so formalistic an approach. He refers to 'the ... substitution of other labels for facts already pleaded' as an example of the kind of case where (other things being equal) amendment should readily be permitted - the contrast being with 'the making of entirely new factual allegations which change the basis of the existing claim'. (It is perhaps worth emphasising that head (5) of Mummery J's guidance in Selkent was not intended as prescribing some kind of a tick-box exercise. As he makes clear, it is simply a discussion of the kinds of factors which are likely to be relevant in striking the balance which he identifies under head (4).)

 

48. Consistently with that way of putting it, the approach of both the EAT and this Court in considering applications to amend which arguably raise new causes of action has been to focus not on questions of formal classification but on the extent to which the new pleading is likely to involve substantially different areas of enquiry 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. It is thus well recognised that in cases where the effect of a proposed amendment is simply to put a different legal label on facts which are already pleaded permission will normally be granted: see the discussion in Harvey on Industrial Relations and Employment Law Para 312.01-03. We were referred by way of example to my decision in Transport and General Workers Union v Safeway Stores Ltd (UKEAT/0092/07), in which the claimants were permitted to add a claim by a trade union for breach of the collective consultation obligations under section 189 of the Trade Union and Labour Relations (Consolidation) Act 1992 to what had been pleaded only as a claim for unfair dismissal by individual employees. (That case in fact probably went beyond 'mere re-labelling' - as do others which are indeed more authoritative examples, such as British Printing Corporation (North) Ltd v Kelly (above), where this Court permitted an amendment to substitute a claim for unfair dismissal for a claim initially pleaded as a claim for redundancy payments. "

 

3.12 If a claim is in time, or the tribunal considers time should be extended, the tribunal must then still consider the other factors relevant to the exercise of the discretion, as set out previously. Equally, if the claim is out of time and the tribunal considers time should not be extended under the appropriate test, the issue arises to be considered what is the position and, in particular, is this finding fatal to the application for amendment? This issue of time, in relation to the exercise of the discretion, gives rise therefore to potentially considerable difficulties.

 

It is correct that Mummery J observed in Selkent that if a new complaint or cause of action is proposed to be added by way of amendment, it is 'essential' for the tribunal to consider the matter of time-limits. Indeed, it has been considered in some cases that this dicta would be read as implying, if the claim is out of time and times does not fall to be extended under the applicable legislative test, then the application for amendment must necessarily be refused. However, Underhill J in Safeway Stores Ltd and again in Abercrombie, as referred to above, makes it clear that, in his view, it is not what Mummery J intended and to do so would be to take what Mummery J said out of context. According to Underhill J, in Safeway, the reason why it is essential, in Mummery J's words, that a tribunal consider whether the claim in question is in time is simply that it is 'a factor' - albeit an important and potentially decisive one in the exercise of the discretion. Thus, it would seem that, if the relevant time-limit for presenting the 'new' claim has expired, this will not, in itself, prevent the tribunal exercising its discretion to allow the amendment and is therefore not an absolute bar; but it is a significant important factor for the tribunal to weigh in the balance when considering how to exercise its discretion (see further Chaudhary v Secretary of State for Health [UKEAT/0512/04] ) and UCATT v Amicus and Others [2009 ICR 852.

 

3.13 As seen before, interestingly, in this context, the fact of 'balance of relevant injustice and hardship involved in refusing or granting an amendment', as seen in Selkent, has been held, in Ali v Office of National Statistics [2004] EWCA Civ 1363, to be little different to the 'just and equitable' ground, which applies in relation to extension of time, under the relevant legislation, in discrimination claims.

 

In a recent decision, Langstaff P in Thomson v East Dunbartonshire Council [UKEATS/0049/13], referred to the Mummery test in Selkent of 'relative injustice and hardship', whereas the Employment Judge had referred to the 'balance of hardship'. Langstaff P commented:-

 

"It seems to me that the balance of prejudice, essentially, is intended to convey the same concept. It may perhaps be helpful to return to the words used by Mummery J in future consideration of a case such as this, though frequently 'balance of prejudice' is the lawyer's shorthand for the necessary exercise, purely because it may focus more closely on two separate questions : injustice o the one hand, hardship on the other. But balance of prejudice is capable of including matters which might not strictly be described as unjust or hard but may nonetheless be relevant. All the circumstances of course have to be taken into account ...."

 

3.14 In a recent decision by HH Eady QC, in the case of Mist v Derby Community Health Service NHS Trust [2016] UKEAT/0170/15, the Employment Appeal tribunal again confirmed that, when considering issues of amendment, the approach that must be adopted remains that laid down in Selkent Bus Company Ltd v Moore [1996] ICR 836; and, in particular, where an application was to add a claim out of time that would not be determinative and neither would any failure of explanation for the delay. It was emphasised the paramount consideration remains the relative injustice and hardship in refusing or granting an amendment.

 

3.15 In determining whether a tribunal should grant leave in order to amend a claimant's claim it is not, generally, for the Employment Judge, when determining that issue to determine the facts in issue between the parties and, in particular, the merits of the claimant's claims, amended or otherwise. However, in some case law it has been suggested a tribunal can take into account the underlining merits when an amendment is proposed - being an appropriate consideration for the tribunal 'under all the circumstances', when considering an amendment which would add a new claim. For example, in Woodhouse v Hampshire Hospitals NHS Trust [UKEAT/0132/12], it was held by the EAT:-

 

" 15. ...  It is true that in the assessment of the balance of hardship and the balance of prejudice there may in all the circumstances include an examination of the merits - in other words, there is no point in allowing an amendment to add an utterly hopeless case. But otherwise it should be assumed that the case is arguable, for this is what Mummery P said [in Selkent] in describing what tribunal practice should be when an application is made: where the matter is arguable and of substance, there should be representations by the parties. "

 

The decision in Woodhouse has now to be further considered, in light of the recent decision of Mr Justice Soole in the case of Gillett v Bridge 86 Ltd [2017] UKEAT/0051/17, when Mr Justice Soole stated, in the course of his judgment:-

 

"26. ... Nor do I accept his submission that an Employment Judge considering an application to amend can only take account of the merits if she considers that the proposed new claim is bound to fail as a matter of law.  Whether at the initial paper stage or at a hearing with representation from the parties, I consider that the Employment tribunal must be entitled to consider whether the proposed claim has reasonable prospects of success.  If a presented claim could be struck out on that basis, it would be inconsistent and anomalous if an application to amend could not be refused on the same basis.  Nor do I accept that as a matter of principle the Employment Tribunal must never take account of its assessment of the merits of the claim.  Selkent refers to 'all the circumstances', and Olayemi is an example where the prospects of success 'did not appear good' and were taken into account.

 

27. Furthermore, and consistent with the Employment Tribunal's powers under Rule 39, I can see no reason why the tribunal could not require a Deposit Order as a condition of permission to add a claim that it considers to have 'little reasonable prospects of success'.  If and to the extent that HHJ McMullen QC's observations in Woodhouse support a bar against the consideration of merits, save where the proposed new claim is 'obviously hopeless', I respectfully disagree.

 

28. All that said, I find it difficult to concede a case where a pessimistic view on merits falling short of 'no reasonable prospects of success' could provide support for the refusal of an amendment application that has been brought in time, for if the claimant had taken the alternative course of issuing a fresh claim within the relevant time limit the Employment Tribunal would not be entitled to strike out the claim.  At most there could be a Deposit Order under Rule 39.  If the practice on amendment were otherwise, a claimant would have to take the alternative course - inconvenient and costly for the parties and the tribunal - of issuing a fresh claim and applying to have it managed and heard with the existing claim.

 

29. This leads to the weight to be given to the fact that an application to amend is made in time.  I accept of course that factor may not be decisive.  However, it must be a factor of considerable weight, as Employment Judge Wallis acknowledged when identifying it as an 'important factor'.  This factor is relevant to the Selkent balance of hardship and injustice.  The Judge concluded that the respondent would suffer some hardship and injustice if required to deal with the new claim.  However, the respondent would have been in just the same position if the appellant had taken the alternative course on 18 July 2016 of issuing a fresh claim.  Once again, the logic of this conclusion would require a claimant to take that course rather than to make a timely application to amend.

 

30. On the other side of the balance, I do not think that the fact that the appellant can pursue her other claims is a reason to conclude that there is no significant hardship or injustice if she is prevented from pursuing the distinct whistleblowing claims.  Again, the consequence is to place her in a worse position than if she had taken the alternative course of issuing a fresh claim on 18 July 2016.

 

31. In my judgment, the circumstances of this application compel the grant of permission to amend.  In particular: (1) the application was in time, (2) the Employment Judge's assessment on the merits of the proposed claim was not such that it did not have 'reasonable prospects of success', and (3) the balance of hardship/injustice was firmly in favour of the appellant.  I consider that the wrong conclusion was reached because the tribunal (1) wrongly took account of its assessment that the merits were 'weak' and (2) in substance gave no weight to the fact that the application was in time.

 

... ."

 

3.16 I am satisfied, when considering the issue of the balance of hardship and prejudice, in light of recent dicta of the Employment Appeal Tribunal, that when carrying out the balancing exercise, as required by Mummery P in Selkent, the history of the proceedings, the matters set out in the original claim form but also the terms of the proposed amendments are relevant considerations in carrying out that balancing exercise, taking into account all the circumstances (see later).

 

3.17 In Kuznetsov v The Royal Bank of Scotland [2015] UKEAT/0089/15, HH Judge Eady QC stated:-

 

" 39. The identification of the list of issues in the case is plainly one of the ET's case management functions. That list, however, does not permit new cases to be brought without regard to the original pleading or for claims that have been pleaded to be ignored or treated as withdrawn. As Langstaff P observed in Chandhok & Another v Tirkey [2015] IRLR 195 :

 

'16. ... The claim, as set out in the ET1, is not something just to set the ball rolling, as an initial document necessary to comply with time limits but which is otherwise free to be augmented by whatever the parties choose to add or subtract merely upon their say so. Instead, it serves not only a useful but a necessary function. It sets out the essential case. It is that to which a respondent is required to respond. A respondent is not required to answer a witness statement, nor a document, but the claims made - meaning, under the Rules of Procedure 2013 ... the claim as set out in the ET1.

 

17. I readily accept that tribunals should provide straightforward, accessible and readily understandable fora in which disputes can be resolved speedily, effectively and with a minimum of complication. They were not at the outset designed to be populated by lawyers, and the fact that law now features so prominently before employment Tribunals does not mean that those origins should be dismissed as of little value. Care must be taken to avoid such undue formalism as prevents a tribunal getting to grips with those issues which really divide the parties. However, all that said, the starting point is that the parties must set out the essence of their respective cases on paper in respectively the ET1 and the answer to it. If it were not so, then there would be no obvious principle by which reference to any further document (witness statement, or the like) could be restricted. Such restriction is needed to keep litigation within sensible bounds, and to ensure that a degree of informality does not become unbridled licence. The ET1 and ET3 have an important function in ensuring that a claim is brought, and responded to, within stringent time limits. If a 'claim' or a 'case' is to be understood as being far wider than that which is set out in the ET1 or ET3, it would be open to a litigant after the expiry of any relevant time limit to assert that the case now put had all along been made, because it was 'their case', and in order to argue that the time limit had no application to that case could point to other documents or statements, not contained within the claim form. Such an approach defeats the purpose of permitting or denying amendments; it allows issues to be based on shifting sands; it ultimately denies that which clear-headed justice most needs, which is focus. It is an enemy of identifying, and in the light of the identification resolving, the central issues in dispute.

[Tribunal's emphasis]

 

18. In summary, a system of justice involves more than allowing parties at any time to raise the case which best seems to suit the moment from their perspective. It requires each party to know in essence what the other is saying, so they can properly meet it; so that they can tell if a tribunal may have lost jurisdiction on time grounds; so that the costs incurred can be kept to those which are proportionate; so that the time needed for a case, and the expenditure which goes hand in hand with it, can be provided for both by the parties and by the tribunal itself, and enable care to be taken that any one case does not deprive others of their fair share of the resources of the system. It should provide for focus on the central issues. That is why there is a system of claim and response, and why an employment Tribunal should take very great care not to be diverted into thinking that the essential case is to be found elsewhere than in the pleadings'.

 

40. Where an ET is concerned with an application to amend ... it is exercising a judicial discretion; guidance in respect of which was laid down by Mummery J (as he then was) in Selkent Bus Co Ltd v Moore [1996] ICR 836 EAT. Pursuant to that guidance, where the amendment raises a new claim, the ET must have regard to the relevant time limits and, if the claim is out of time, to consider whether the time should be extended under the appropriate statutory provision; here, reasonable practicability. The ET would also need to have regard to the timing and manner of the application, although delay in itself should not be the sole reason for refusing such an application. The ET will, however, want to consider why it was not made earlier and why it is now being made. For example, whether it was because of the discovery of new facts or new information arising from disclosure.

 

...

 

57. Going further, and considering prejudice more generally, the ET was, I find, entitled to take into account the broader procedural history: the Claimant's clarification before Employment Judge ... that he was not making any other claims; his failure to mention the potential whistle blowing complaints at any earlier stage. The Claimant says that overall there is no real prejudice to the Respondent; it will be open to him to raise these factual matters in his unfair dismissal claim in any event (all the more so if the bonus avoidance case is permitted to be run on the unfair dismissal claim). That, however, is only part of the picture. First, raising matters as background evidential points is a different thing to pursuing a separate head of claim. In any event, I am not persuaded that the same points would be run. That is certainly not obvious regarding the relocation complaint. Even as regards the bonus payment, additional issues arise relating to whether there were any actual disclosures on the Claimant's part. Those questions - which raise both new legal and evidential issues - would need to be explored, which might well add to the time and cost of the proceedings and which would be all the more unfair for the Respondent to have to deal with after such a delay." [Tribunal's emphasis]

 

3.18 In the Court of Appeal Elias LJ in Kuznetsov [2017] EWCA Civ 43, dismissing the appeal from the Employment Appeal Tribunal, again re-stated the relevant principles in relation to an application for amendment:-

 

"20. ... in the case of the exercise of discretion for applications to amend, a tribunal should take into account all the circumstances and balance the injustice and hardship of allowing the amendment against the injustice and hardship of refusing it: see the observations of Mummery J, as he then was, in Selkent Bus Co v Moore [1996] ICR 836 (EAT) . Factors to be taken into consideration include the nature of the amendment, so that for example an amendment which changed the basis of an existing claim will be more difficult to justify than an amendment which essentially places a new label on already pleaded facts; the question whether the claim is out of time and if so, whether time should be extended under the applicable statutory provision; and the extent of any delay and the reasons for it. As Underhill LJ pointed out in Abercrombie v Aga ..., these are neither intended to be exhaustive nor should they be approached in a tick-box fashion."

 

In relation to the issue of delay in making the amendment, which on the facts of the case was three years, Elias LJ stated it was extensive and after approving the judgment of Langstaff J in Chandhok, referred to previously, he concluded, at Paragraph 25:-

 

"It was not sufficient for the appellant simply to add these claims at a later date when he was asked to produce a list of issues. They ought to have been made from the beginning. HH Judge Eady QC observed that there was absolutely no reason why this claim could not have been advanced as part of the original claims. It did not emerge as a result of the receipt of late documents or anything like that. If the appellant had an explanation for not advancing this claim earlier it was for him to produce it. No explanation was given. ... ." [Tribunal's emphasis]

 

Elias LJ further approved the conclusion of the Employment Tribunal and Employment Appeal Tribunal that, on the facts, the new claim of whistleblowing was in substance more than additional particulars of an existing claim but also would add to the relevant evidence and would add to the time and cost of the proceedings and he therefore agreed with the conclusion to refuse the amendment. Of course, it has to be noted the facts in Kuznetsov were different to those in the present proceedings; including, for example, the period of delay and also the different types of 'new' claims, the subject-matter of the amendment. However, despite these differences, I am satisfied, for the purposes of the present proceedings, the Kuznetsov case provides helpful guidance, remembering always each case must be determined on its own facts.

 

3.19 As indicated previously, when following the guidance in Selkent, it is necessary for the tribunal to consider whether the claim is out of time and, if so, whether the time-limit should be extended under the applicable statutory provisions. In the present proceedings any extension of time, if relevant, would be under the grounds of 'just and equitable', and not 'reasonably practicable'. However, as seen in Ali (see Paragraph 2.6 of this decision above), it is suggested the balance of relevant injustice and hardship in refusing or granting an amendment may be little different to the grounds of 'just and equitable'.

 

3.20 However, despite same, it remains necessary to consider, whether a proposed amended claim is out of time and, if so; how such a claim should be treated and, in particular, having regard to whether it is 'just and equitable' to extend time; but in the context of the circumstances of an amendment application, where issues of time may not be determinative factor albeit remain a relevant consideration (see later).

 

3.21 When considering an issue of extension of time on just and equitable grounds in relation to an 'original' claim (ie not as part of a proposed claim, on foot of an amendment application), such issues have been considered in a number of authorities. It is necessary to consider how the guidance in such authorities overlaps, if at all, when a tribunal is considering issues of the rule in Selkent in an application for leave to bring further claim, by way of amendment, where time-issues arise.

 

3.22 When considering issues of extension of time in relation to an 'original' claim and whether time should be extended on 'just and equitable' grounds , in the case of Miller and Others v Ministry of Justice and Others [UKEAT/0003/15] Mrs Justice Laing in her judgment set out points of general application, as follows:-

 

"There are five points which are relevant to the issues in these appeals:-

 

(i) The discretion to extend time is a wide one: Robertson v Bexley Community Centre [2003] EWCA Civ 576; [2003] IRLR 434, Paragraphs 23 and 24.

 

(ii) Time-limits are to be observed strictly in ETs.  There is no presumption that time will be extended unless it cannot be justified; quite the reverse.  The exercise of that discretion is the exception rather than the rule (ibid, Paragraph 25).  In Chief Constable of Lincolnshire v Caston [2010] EWCA Civ 1298; [2010] IRLR 327 Wall LJ (with whom Longmore LJ agreed), at paragraph 25, put a gloss on that passage in Robertson, but did not, in my judgment, overrule it.  It follows that I reject Mr Allen's submission that, in Caston, the Court of Appeal "corrected" paragraph 25 of Robertson. ...

 

(iii) If an ET directs itself correctly in law, the EAT can only interfere if the decision is, in the technical sense, "perverse", that is, if no reasonable ET properly directing itself in law could have reached it, or the ET failed to take into account relevant factors, or took into account irrelevant factors, or made a decision which was not based on the evidence.  No authority is needed for that proposition.

 

(iv) What factors are relevant to the exercise of the discretion, and how they should be balanced, are for the ET (DCA v Jones [2007] EWCA Civ 894; [2007] IRLR 128).  The prejudice which a Respondent will suffer from facing a claim which would otherwise be time barred is "customarily" relevant in such cases (ibid, Paragraph 44).

 

(v) The ET may find the checklist of factors in section 33 of the Limitation Act 1980 ("the 1980 Act") helpful (British Coal Corporation v Keeble [1997] IRLR 336 EAT; the EAT (presided over by Holland J) on an earlier appeal in that case had suggested this, and Smith J (as she then was) recorded, at paragraph 8 of her Judgment, that nobody had suggested that this was wrong.  This is not a requirement, however, and an ET will only err in law if it omits something significant: Afolabi v Southwark London Borough Council [2003] ICR 800; [2003] EWCA Civ 15, at Paragraph 33." (See Paragraph 10 of the judgment.)

 

(The principle in Afolubi was subsequently endorsed by the Court of Appeal in Governing Body of St Albans Girls School v Neary [2010] IRLR 124.)

 

Further, it was established in Apelogun-Gabriels v London Borough of Lambeth [2002 IRLR 116, that there is no principle that an extension of time will be granted where the delay is caused by an internal grievance or appeal hearing.

 

3.23 The ' Keeble Guidance' advice (see above) is as follows:-

 

"8 ... It requires the Court to consider the prejudice which each party would suffer as the result of the circumstances of the case and, in particular, inter alia, to:-

 

(a) the length and reasons for the delay;

 

(b) the extent to which the cogency of the evidence is likely to be affected by the delay;

 

(c) the extent to which the party sued had co-operated with any requirements for information;

 

(d) the promptness with which the plaintiff acted once he or she knew of the facts giving rise to the cause of action;

 

(e) the steps taken by the plaintiff to obtain appropriate professional advice once he or she knew of the possibility of taking action.

 

(In Lindsay v London School of Economics and Political Science [2014] IRLR 218 the Court of Appeal held that:-

 

"An extension of time will not automatically be granted simply because it results in no prejudice to the respondent in terms of a fair trial. If a claim is brought out of time it is for the claimant to show that it is just and equitable for the extension to be granted. This is a multifactoral assessment where no single factor is determinative."

 

3.24 When considering the exercise of the relevant discretion, it is necessary for the tribunal to identify the cause of the claimant's failure to bring the claim in time - see Accurist Watches Ltd v Wadher [2009] UKEAT/102/09 and ABM University Local Health Board v Morgan [2013] UKEAT/0305/13 where the EAT stated:-

 

"Though there is no principle of law which dictates how sparingly or generously the power to enlarge time is to be exercised (see Chief Constable of Lincolnshire Police v Caston [2009] EWCA Civ 1298 at Paragraph 25 per Sedley J) a tribunal cannot hear a complaint unless the applicant convinces it that it is just and equitable to do so and the exercise of the discretion is therefore the exception rather than the rule (per Auld LJ in Robertson v Bexley Community Centre [2003] IRLR 434 (A). A litigant can hardly hope to satisfy this burden unless he provides an answer to two questions, as part of the entirety of the circumstances which the tribunal must consider. The first question in deciding whether to extend time is why it is that the primary time-limit has not been met; and insofar as it is distinct the second reason is why after the expiry of the primary time-limit the claim was not brought sooner than it was ... ."

 

(approved in British Transport Police v Norman [2015] UKEAT/0348/14).

 

In Morgan, the EAT also confirmed it may not always be appropriate to give more than summary reasons for a conclusion that it was just and equitable to extend time and that the precise date of an act or omission may not be material to that question (see further Paragraph 50 of Morgan).

 

As seen above, the reason why a claimant delayed in bringing a claim is a relevant consideration, but noting the test to be applied in not one of reasonable practicability (see  Biggs v Somerset County Council [1996] ICR 364).

 

In Miller, Laing J identified two types of prejudice which a respondent may suffer if the limitation period is extended. The first is the obvious prejudice of having to meet a claim which would otherwise have been defeated by a limitation defence. The second is what she described as the 'forensic prejudice' which the respondent may suffer if the limitation period is extended by many months or years, which is caused by such things as fading memories, loss of documents and loosing touch with witnesses (see Paragraph 12 of the judgment). She acknowledged that if there is 'forensic prejudice' to a respondent, that will be 'crucially relevant' in the exercise of the discretion, against an extension of time and it may well be decisive; and if there is no 'forensic prejudice' to the respondent that is:-

 

(a) not decisive in favour of an extension; and

 

(b) depending on the tribunal's assessment of the facts may well not be relevant at all. It will depend on the way the tribunal sees the facts.

 

3.25 As seen above, the first relevant circumstance cited in Keeble is the extent of the delay in issue. To know how long the delay has been for limitation purposes, however, one has to know when time began to run.

 

As seen in Outokumpu Stainless Ltd v Law [UKEAT/0199/07], Beatson J stated:-

 

" ... It is necessary for a tribunal considering the exercise of its discretion to ascertain when the time-limit expires in order for it to approach the exercise of discretion properly and lawfully. If it does not it cannot consider the length of the delay and it cannot properly consider whether it is just and equitable to allow the claim to proceed."

 

3.26 In the recent case of Rathakrishnan v Pizza Express (Restaurants) Ltd [2016] IRLR 278, HH Judge Clark referred to a potential conflict of approach emerging in recent case law in the EAT as seen in the case of Pathan v South London Islamic Centre [2014] UKEAT/0312/13 and Szmidt v AC Produce Imports Ltd [2015] UKEAT/029/14 and, by way of contrast the decision of Langstaff P, as he then was, in the case of Habinteg Association Ltd v Holleran [2015] UKEAT/0274/14 in relation to how to exercise the discretion where a claimant does not put forward evidence in support of his application for an extension of time, explaining the delay.

 

In Habinteg, there was no explanation for the delay. Langstaff P said that the first consideration from the ' Keeble list' is the reason for and extent of the delay. There had to be some evidence, even by inference; since there was no explanation for the delay he held he could come to no other conclusion then the extension be refused. There was no basis upon which it could be permitted. He followed a similar approach in Smith-Twigger v Abbey Protection Group Ltd [UKET/0391/13]. In Pathan, the tribunal held the claimant had shown no good reason for leaving it until she presented her claim. She was intelligent and had taken advice in order to find out the time-limit. On appeal, the EAT held the tribunal had erred because it had not considered relative prejudice, which was an important factor which should normally be considered by an Employment Tribunal.

 

In Rathakrishnan the EAT, decided the decision in Habinteg was strictly, per incuriam, and held that the exercise of the wide discretion involves a multifactoral approach and failure to provide a good excuse for a delay will not inevitably result in an extension of time being refused. No single factor was determinative. In particular, it held that failure to provide a good reason for the delay in bringing a claim will not inevitably result in an extension of time being refused. Further, the question of balance of prejudice and potential merits of the claim before the tribunal were relevant considerations for the tribunal and it had been wrong not to have weighed these factors in the balance and instead to have terminated the exercise, having rejected the claimant's application for the delay.

 

In both Pathan and Pathakrishnan the tribunal heard the claim on the merits at the same time as it heard the time-point. In the earlier case of Bahous v Pizza Express Restaurants [2012] Eq LR 4 (where again merits and time-points were heard by the tribunal at the same time) HH Judge Clark had similarly held that the merits of the complaint did not require separate consideration but were 'part of the prejudice balancing exercise' likely to be suffered by the respective parties should time not be extended.

 

3.27 In a further recent decision by Laing J in the case of Edomobi v La Retraite RC Girls School [UKEAT/0180/16], she preferred to follow the approach in Habinteg - stating she found it difficult to see " how a claimant can discharge the burden of showing that it is just and equitable to extend time if he or she simply does not explain the delay, nor do I understand the supposed distinction in principle between a case in which the claimant does not explain the delay and a case where he or she does so but is disbelieved. In neither case, in my judgment, is there material on which the Employment Tribunal can exercise its discretion to extend time. If there is no explanation for the delay, it is hard to see how the supposedly strong merits of a claim can rescue a claimant from the consequences of any delay."

 

The above difference of approach by the different divisions of the EAT may, in due course, require to be resolved by the Court of Appeal. Of course, none of these decisions are binding on this tribunal, albeit they would normally be persuasive. Insofar as it may be necessary for this tribunal to resolve this difference of approach, it preferred the approach seen in Pathan v Rathakrishnan and the multifactoral approach and the necessity, in essence, before reaching any conclusion to put all the relevant factors, as assessed by the tribunal, in the balance; albeit recognising that the absence of any or proper explanation for the delay may, subject to the other factors, as found on the facts, weigh heavily against the granting of any extension - remembering at all times the dicta seen in Robertson , namely - 'the exercise of the discretion in the exception rather than the rule and time-limits are to be exercised strictly in tribunals' (see further support for a multifactoral approach in Lindsay v LSE [2014] IRLR 218).

 

3.28 In a recent decision of the Employment Appeal Tribunal in the case of Odukoya v Tim Hopkins, The Charity Commission and Another [2017] UKEAT/0251/16 it was held, when considering the issue of a just and equitable extension in relation to the presentation of an 'original' claim (ie not in the context of an application for leave to amend a claim):-

 

"17. The onus is on a claimant who bring a complaint after the expiry of the initial three month period to persuade the Employment Tribunal that it is nevertheless just and equitable for her to be allowed to bring the complaint. In deciding what is just and equitable, the Employment Tribunal must take into account all relevant circumstances, looking at the matter against the background of the clear statutory policy that [Equality Act] complaints should be brought within a short period of time. Such circumstances are likely to include (i) length of the delay; (ii)  the reasons for the delay (iii) the prejudice to the respondent in having to face the complaint (in particular, 'forensic prejudice' caused by the delay), and (iv)  the prejudice caused to the claimant by losing the ability to bring a complaint, but there may be more. Assessing the relative prejudice may well involve an assessment (often only a rough assessment) of the strength or weakness of the complaint. I accept ... that in making any such assessment a tribunal must take into account the fact that discrimination claims are fact sensitive and difficult to prove.

 

18. There is, however, no need for a tribunal to go through a 'checklist' of potentially relevant factors as long as they sufficiently explain the reason for their decision. It may be sufficient simply to say, for example, the delay has been 'x' days/weeks/months, and no satisfactory reason has been supplied for it so that, regardless of any other factors, it would not be just and equitable to allow the claim to proceed (although I stress that in giving that example I am not intending to suggest that it is never just and equitable to allow a claim to proceed where no satisfactory reason for the delay is put forward ... ."

 

(This would also appear to give support to the multifactoral approach seen in Pathan, as referred to previously.)

 

3.29 As seen previously, issues of time only require to be considered in relation to applications to amend, when applications fall within Category (iii), as set out in the extract from Harvey at Paragraph 2.3 of this decision.

 

Indeed, as seen in Selkent , Mouteng v Select Services Partner [UKEAT/0059/08], Rawson v Doncaster NHS Primary Trust [UKEAT/0022/08] and Newsquest (Herald and Times) Limited v Keeping [UKEATS/0051/09], any time bar issue, if relevant, is an essential component of any decision to grant or refuse an amendment. Indeed, it is not surprising that this is an important issue to be considered, given as confirmed in Selkent, the effect of such an amendment is to backdate a new claim to the date on which the original claim form is presented - with the consequence if the amendment is granted the respondent is unable to raise at a later stage any limitation defence (see Rawson, Paragraph 14 of the judgment of HH Judge Clark). In Newsquest, Lady Smith stated:-

 

" The fact that to allow an amendment would, in effect, enable a claimant to elide a statutory time bar does not necessarily prevent an Employment tribunal granting the application. It does not operate as an absolute bar. ... It is, however, ... a highly relevant factor. ... Underhill J referred to it as 'potentially decisive' in TGWU v Safeway Stores Ltd UKEAT/0092/07/LA at paragraph 10. Furthermore, a tribunal requires to consider why the application was not made at an earlier date, why it is being made at that point in time and what are the whole circumstances of the lateness ... The overall task of balancing the injustice and hardship that will result from granting the amendment against that which will result from refusing it, must , in the case of an amendment to introduce a fresh claim which would be time barred if presented independently, be carried out in that context."

 

If a proposed amendment sought to raise a claim, which post-dated the presentation of the original claim, any such application whether to grant the application still requires to be considered in accordance with the principles set out in Selkent (see Parkash v Wolverhampton City Council [UKEAT/0140/06].

 

3.30 Given the potential consequences for the parties, not least in relation to the limitation issues, as outlined above, if an application is granted to allow an amendment to introduce a new claim, which raises issues of time, it is necessary therefore, as part of the determination of the amendment application for the tribunal to assess whether the proposed amendment is out of time and, if so, whether it should still be allowed as part of the exercise of discretion in accordance with the principles seen in Selkent. Any such issue of time cannot, in the circumstances, be, provisionally determined, pending final resolution at a later substantive hearing (see recent decision of Amey Services Ltd and Another v Aldridge and Others [UKEAT/0007/16], following Selkent, Rawson and Newsquest.

 

3.31 In the case of Evershed v New Star Asset Management [2009] UKEAT/0249/09, Underhill J, as he then was, said, which was not challenged in the context of the subsequent appeal, to which reference has been made previously:-

 

"33 ... It is not the business of the tribunals to punish parties (or their advisers) for their errors. In very many, perhaps most, cases where permission is given to amend a pleading, the party in question could if he had been sufficiently careful got it right first time round."

 

Evershed was a case in which application for leave to amend was granted. However, similar principles have been applied in cases where the issue has arisen whether the time should be extended to allow a discrimination claim to be heard out of time, on just and equitable grounds, where the fault of the claimant is a relevant factor to be considered but the claimant was not held to be culpable for what was properly regarded to be the fault of his or her legal advisers.

 

In the case of Virdi v Commissioner of Police of the Metropolis and Another [2006] UKEAT/0373/06, a case involving an application for extension of time on just and equitable grounds in a discrimination case, Elias P, as he then was, stated:-

 

"35. It is well established, and common ground, that the claimant cannot be held responsible for the failings of his solicitors: see Steeds v Perverill Management Services Ltd [2001] EWCA Civ 419 Paragraph 27. For that reason it is not legitimate for a Court to refuse to extend time merely on the basis that the solicitor has been negligent and that the claimant will have a legal action against the solicitor. Mr Sethi went so far as to submit that the existence of a potential claim against a legal adviser was a factor which should not be taken into account at all. He contends that this was the view of the EAT in Chohan v Derby Law Centre [2004] IRLR 685 .

 

36. I am not satisfied that this was what the EAT was saying in that case, but if they were then the observation cannot sit with the views of the Court of Appeal in the Steeds case when it accepted that it would be a factor, and sometimes a highly relevant factor, in the exercise of the discretion."

 

In Chohan, HH Judge J McMullen QC, in setting out the legal principles to be applied in relation to the exercise of discretion whether time should be extended on just and equitable grounds stated:-

 

"16. A failure by a legal adviser to enter proceedings in time should not be visited upon the claimant for otherwise the defendant would be in receipt of windfall : Steeds v Perverill Management Services Ltd [2001] EWCA Civ 419, Paragraphs 38 - 40."

 

Steeds was a personal injury claim dealing with issues of limitation, but again the principles, as set out therein have been applied in Virdi and Chohan; and in this context, it must be noted that the ' Keeble Guidance', referred to previously, is drawn from the checklist of factors in Section 33 of the Limitation Act 1990, as applied in the Steeds decision of the Court of Appeal.

 

3.32 In the recent decision of the Employment Appeal tribunal in the case of Bowden v Ministry of Justice and Department for Communities and Local Government, it was held by the Employment Appeal Tribunal that the Employment Judge did not apply correct principles of law when deciding whether it was just and equitable to consider the claimant's claim out of time. This claim was a claim arising out of the part-time judicial pension litigation (see O'Brien v Department of Constitutional Affairs). In the particular circumstances of the case, the claimant was a retired legal chair of the former Residential Property Tribunal Service. He brought proceedings, under the Part-time Workers Regulations, alleging that he ought to have a received a judicial pension and certain other improvements to his terms and conditions. He had asked the Employment Judge to hold that it was just and equitable to consider his claim out of time. The Employment Appeal Tribunal decided the Employment Judge placed impermissible reliance on the decision in Miller & Others v Ministry of Justice, another case in the part-time judicial pension litigation, and did not consider whether, in the claimant's particular case, the claimant was reasonably ignorant of his right to bring the claim, and how the prejudice to both parties should be balanced.

 

For the purposes of the present proceedings, the Employment Appeal Tribunal stated, in the course of the judgment, as follows:-

 

" 32. The process of asking a Judge to decide that it is just and equitable to hear a complaint out of time is almost always described by Judges and practitioners as making an application to extend time; and acceding to that application is frequently described as granting an extension of time. That is not quite how the legislation puts it; but the effect of the decision is to grant an extension of time and no harm is done by the common form of description.

 

33. The decision is often described as an exercise of discretion; strictly it is better described as an evaluation or assessment, but there is little practical difference. In either case the Judge must apply the law correctly, taking into account that which it is essential to take into account and leaving out of account that which is irrelevant. If the Judge takes a decision in that way, and reaches a conclusion which is not perverse, the Employment Appeal Tribunal, which is empowered to hear appeals only on a question of law, must not interfere.

 

34. In British Coal Corporation v Keeble [1997] IRLR 336 the Employment Appeal Tribunal recommended that Employment Tribunals should take into account the checklist of factors in section 33 of the Limitation Act 1980. This is not a requirement and an Employment Tribunal will only err in law if it omits something significant: Afolabi v Southwark London Borough Council [2003] ICR 800 at paragraph 33. Speaking for myself, I think an Employment Tribunal is indeed wise to address that checklist as an aid to good decision making, so long as it does not treat any checklist as exhaustive and pays attention to factors which are relevant to the circumstances of the case before it. It will of course take into account other leading cases on this question, in particular Robertson v Bexley Community Centre [2003] IRLR 434 as explained in Chief Constable of Lincolnshire Police v Caston [2009] EWCA Civ 1298.

 

35. The first factor in the checklist for consideration is the length of, and the reasons for, the delay on the part of the claimant. This will be relevant in almost every case.

 

36. In this case the explanation given by the claimant was that he was unaware of the O'Brien litigation or of the possibility of pensions for part-time judicial office holders. It was to my mind essential that the Employment Judge should apply correct principles of law when he evaluated this explanation.

 

37. A convenient starting point is the well-known dictum of Brandon LJ in Wall's Meat. He was addressing the stricter test for extension of the time limit applicable in unfair dismissal cases - namely, whether it was reasonably practicable to bring the claim in time:

 

'With regard to ignorance operating as a similar impediment, I should have thought that, if in any particular case an employee was reasonably ignorant of either (a) his right to make a complaint of unfair dismissal at all, or (b) how to make it, or (c) that it was necessary for him to make it within a period of three months from the date of dismissal, an industrial tribunal could and should be satisfied that it was not reasonably practicable for his complaint to be presented within the period concerned.

 

For this purpose I do not see any difference, provided always that the ignorance in each case is reasonable, between ignorance of (a) the existence of the right, or (b) the proper way to exercise it, or (c) the proper time within which to exercise it. In particular, so far as (c), the proper time within which to exercise the right, is concerned, I do not see how it can justly be said to be reasonably practicable for a person to comply with a time limit of which he is reasonably ignorant.

 

While I do not, as I have said, see any difference in principle in the effect of reasonable ignorance as between the three cases to which I have referred, I do see a great deal of difference in practice in the ease or difficulty with which a finding that the relevant ignorance is reasonable may be made. Thus, where a person is reasonably ignorant of the existence of the right at all, he can hardly be found to have been acting unreasonably in not making inquiries as to how, and within what period, he should exercise it. By contrast, if he does know of the existence of the right, it may in many cases at least, though not necessarily all, be difficult for him to satisfy an industrial tribunal that he behaved reasonably in not making such inquiries.

 

To that extent, therefore, it may, in general, be easier for a complainant to avail himself of the 'escape clause' on the ground that he was reasonably ignorant of his having a right at all, than on the ground that, knowing of the right, he was reasonably ignorant of the method by which, or the time limit within which, he ought to exercise it'.

 

38. These well-known principles are widely applied in unfair dismissal cases: see Williams-Ryan at paragraph 21, where the passage was specifically commended. But they are relevant when ignorance is the explanation in a case which is concerned with whether it is just and equitable to extend time: see Averns v Stagecoach in Warwickshire [2008[ UKEAT/0065/08 at paragraphs 20 to 23 (Elias J). They set out basic principles of justice which it is appropriate to apply in the context of a test which requires the tribunal to decide what is just and equitable.

 

39. To similar effect is DPP v Marshall [1998] ICR 518. In that case the claimant was unaware of the right to bring a complaint of transgender discrimination until a European Court decision came to his attention. He brought his claim promptly afterwards. The Employment Tribunal extended time; and the Employment Appeal Tribunal approved that decision. ...

 

40. Applying these principles, given that the claimant was claiming ignorance of his right, the Employment Judge was required to consider whether he was truthful in what he said and whether he was reasonably ignorant of the right. For the reasons which Brandon LJ stated, it will be a rare case where it was reasonable to expect a claimant to make inquiries about a right which he does not know he has.

 

41. To approach the case in this way is not special pleading for Judges of the kind which the Employment Judge found in Miller and Others. Rather it is to treat the claimant, a retired Judge, according to the same legal principles as any other person.

 

...

 

43. In the claimant's case therefore it was not sufficient for the Employment Judge to say that the claimant knew he was not receiving a pension and knew that full-time Judges were. He was bound to ask, given that the claimant said he was ignorant of his right to bring a claim, whether he accepted this was the case and whether he accepted, given the claimant's circumstances, that his ignorance was reasonable.

 

... ."

 

This decision in Bowden is a further example illustrating that issues in relation to extension of time, under the relevant legislation applying to each said claim, increasingly focusing on similar matters to determine whether the relevant 'escape clause' is appropriate, despite the difference in terminology under the legislation (ie reasonably practicable/just and equitable).

 

4.1 After careful consideration of the findings, relevant legislation and legal authorities, set out in the previous paragraphs of this decision, I reached the following conclusions, as set out in the following paragraphs in relation to the issues, the subject-matter of this pre-hearing review.

 

4.2 In relation to the first issue - namely:-

 

"Whether the claimant's claim form presented to the tribunal on 13 April 017 included a claim for harassment, pursuant to the Employment Equality (Sexual Orientation) Regulations (Northern Ireland) 2003."

 

I have concluded that the said claim form, looked at as a whole, did not include such a claim. The claimant had not ticked the box for sexual orientation in Paragraph 7.1; and, in Paragraph 7.4, although he had referred to harassment, there was nothing else in the said paragraph to suggest the claimant was making a claim of harassment on the grounds of sexual orientation. I take into account the claimant is a litigant-in-person, the claim should be looked at in a non-technical way and also the threshold for access is low (see Grimmer); but, regretfully, in this case, the claimant has not provided sufficient or any relevant detail to allow me to conclude such a claim is contained within the claim form and, in particular, has made no reference to facts from which the nature of the claim can be reasonably and objectively discerned (see Badra).

 

4.3 In view of my said decision, as set out above in the out above in the previous paragraph, it was necessary for me then to consider the second issue, the subject-matter of this pre-hearing review, namely:-

 

" ... Whether the tribunal should grant leave to amend the claimant's claim to include a claim of harassment, pursuant to the Employment Equality (Sexual Orientation) Regulations (Northern Ireland) 2003."

 

4.4 I am satisfied that the claimant, in his said application, is seeking to make a claim of harassment, pursuant to the Employment Equality (Sexual Orientation) Regulations (Northern Ireland) 2003, in this particular case, and it is a new claim and therefore falls within the third category, referred to in Harvey (see  Paragraph 3.9 of this decision), namely adding or substituting a wholly new claim or course of action which is not connected with the original claim of unfair dismissal. Even if I am wrong and this proposed amended claim falls within the second category in Harvey, namely linked to or arises out of the same facts as the original claim, my decision in relation to this application for leave to amend would have been the same, for the reasons set out later in this decision.

 

4.5 On the limited facts before me, I am satisfied the proposed amended claim of harassment, pursuant to the Regulations in not an 'utterly hopeless case' (see  Woodhouse) and I am not satisfied there was sufficient evidence before me at this pre-hearing review to be satisfied that the merits of any such claim should be taken into account in relation to the exercise of my discretion and whether or not the application for leave to amend be granted (see Bridge 86 Ltd).

 

So, in my judgment, it will be only in a rare case where the weakness of a claim can be clearly established from the outset, that such matters relating to merit can be properly taken into account, albeit I accept that the test of 'utterly hopeless' as seen in Woodhouse, is now considered to be setting the relevant test too high.

 

4.6 In light of the foregoing, and applying the principles set out in Selkent, I have no doubt this is a major amendment. There is no doubt there has been some delay but delay is not necessarily a determinative factor. I accept that it would have been appropriate for the claimant to reply to the respondent's Notice for Additional Information on 20 June 2017. If he had done so, these issues might have arisen before they did at the first Case Management Discussion on 27 July 2017; but for the reasons set out in Paragraph 2.4 of this decision, I do not think I should be too critical of the claimant in the circumstances. He did notify the tribunal at the first hearing. Even if he had replied, within the 21 days of the respondent's Notice and the issue of this additional claim had been referred to, I do not think anything further would have taken place before the first Case Management Discussion on 27 July 2017 - by which time, in any event, any claim of the claimant was out of time. The claimant, in his evidence, did not explain in any detailed way why he had not brought his claim earlier in relation to the alleged incidents from August 2016 to date of his dismissal; although I have little doubt he was seeking to rely, insofar as he gave any explanation, on continuous discrimination. Insofar as there was any delay, in light of the above matters, I do not think it should be a bar to this application (see Pathan).

 

4.7 I accept that there clearly will be some additional evidence, if leave is given to amend the claim; but, on the basis of the limited evidence of the claimant and the submissions of the parties, I am satisfied the increase in evidence will be limited and, indeed, is unlikely to greatly increase the length of hearing. I appreciate additional witnesses will require to be called to give evidence by the respondent but the number again is small and will require to deal with limited additional factual issues (see Evershed and Abercrombie).

 

4.8 I also take into account that, although the claimant is a litigant-in-person and this does not give him 'a free pass', he acted to make his original claim very promptly following his dismissal on 7 April 2017, following discussions with the Labour Relations Agency, and was anxious to bring his claim in time. In this context, I also take into account the dicta of Underhill J in Evershed at Paragraph 33:-

 

"Not to punish parties for their errors as in so many cases, where leave is granted, parties could have got it right first time if they had been sufficiently careful."

 

4.9 I note that on the claim form, in Paragraph 7.4, there is a specific reference to inform claimants, when complaining about discrimination by way of victimisation, the type of discrimination, eg sex, race etc, you are relying on, should be stated. Under the 2003 Regulations, in addition to direct discrimination, discrimination by way of victimisation, there is the specific Regulation of harassment on grounds of sexual orientation. It is therefore different and separate from the other heads of complaint under the 2003 Regulations. Indeed this separation of claims is similar in all the anti-discrimination legislation. I consider it would be helpful, especially for litigants-in-person, such as the claimant, if consideration was given by the relevant Government Departments, when next re-drafting the claim form, to include, in the same way as with victimisation, similar guidance for harassment. Indeed, if that guidance, had been present, it might have ben harder for the claimant to suggest it was sufficient just to refer to harassment in his claim 'without more'.

 

4.10 The respondent's representative, in my judgment, could not point to any 'real prejudice/forensic prejudice', if leave is granted by the tribunal to amend. All additional witnesses for the respondent are available, albeit there are some limited additional administrative difficulties as these further witnesses no longer work for the respondent. The fact a further claim would require to be defended, if leave is granted, is not sufficient in itself to refuse leave.

 

4.11 Subject to the further matter set out below, in light of the foregoing, I would have therefore considered, in the circumstances, that leave should be granted to the claimant, after applying the Selkent test of the balance of relevant injustice and hardship, and concluding the claimant would suffer the greater injustice and hardship if leave was refused.

 

However, given the first indication by the claimant of this further claim was not until the Case Management Discussion on 27 July 2017. By this time, any such claim of harassment, pursuant to the 2003 Regulations, was out of time. Since, as set out above, I consider this proposed amended claim falls within the third category set out in Harvey, issues of time require to be considered further. If the proposed amended had fallen in the first or second category no issue of time would have arisen.

 

4.12 Given the proposed amended claim is out of time, it was necessary for me to also consider whether time should be extended on 'just and equitable' grounds. In this context, it has to be noted the authorities referred to in Paragraph 3.10/11 of this decision and it is apparent that 'time' is not an absolute bar. I also think it is important to note the decision in Ali, where it is suggested the test of the balance of relevant injustice and hardship, referred to in Selkent, is similar to the test of 'just and equitable' (see further Bowden and Paragraph 3.33 of this decision). I note the claimant sought assistance from the Labour Relations Agency, before making his claim. Although he clearly was made aware of the three month normal time-limit, I am satisfied he was given no assistance by the Labour Relations Agency in relation to the drafting of the claim itself online, which he did himself as soon as possible after the termination of his employment in order to promptly comply with the said three month time-limit. He therefore believed he had taken all relevant action at that time. Further, I have accepted the evidence of the claimant who, as a litigant-in-person, believed that it was sufficient for him to refer to harassment and not specify it was on the grounds of sexual orientation. In essence, he was contending he was 'ignorant and/or had lack of relevant knowledge' requiring him to specify this additional detail in his claim form. There is no doubt, if he had specified such detail, the original claim would have been accepted as including a claim of harassment on grounds of sexual orientation. In light of the decision in Bowden, I am satisfied this is a relevant factor for me to take into account, when applying the 'just and equitable' test, given the proposed amended claim is out of time; albeit I acknowledge relevance of this factor is reduced since the claimant did not tick the box in Paragraph 7.1 for sexual orientation, for which there was no proper explanation, given his ability to fill in the rest of the form, without apparent difficulty.

 

4.13 However, not without some hesitation, after taking into account all the above matters, I am satisfied, whether applying the Selkent balance of relevant injustice and hardship test or the 'just and equitable' test, I should exercise my discretion and make an Order of granting leave to the claimant to amend his claim to include a claim for harassment, pursuant to the Employment Equality (Sexual Orientation) Regulations (Northern Ireland) 2003.

 

5.1 In light of my decision to make an Order granting leave to amend the claimant's claim to include a claim of harassment, pursuant to the 2003 Regulations; and the claim having been so amended, the respondent, if it wishes to present an amended response to the claimant's claim, so amended, is ordered to do so, within 28 days from the date this decision is issued to the parties.

 

5.2 As a consequence of the tribunal's said decision, if either party wishes to issue any Notices for Additional Information and/or Discovery, then it must do so by on or before 28 days from the date this decision is issued to the parties and the parties must respond to all such Notices, whenever issued, within 21 days thereafter and thereby conclude the interlocutory process before the next Case Management Discussion. These are Orders of the Tribunal and must be complied with. If any further Order is required, including any application for extension of time, application must be made to the Office of the Tribunals promptly and in accordance with the relevant Rules of Procedure. A further Case Management Discussion will be arranged in due course, at the conclusion of the interlocutory process, referred to above, and the parties will be notified by the Office of the Tribunals of the date and time of the next Case Management Discussion in due course.

 

 

 

 

 

 

 

Employment Judge

 

 

Date and place of hearing: 1 September 2017, Belfast

 

 

Date decision recorded in register and issued to parties: