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Industrial Tribunals Northern Ireland Decisions |
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You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Kirk v Royal Mail Group [2017] NIIT 02240_16IT (27 March 2017) URL: http://www.bailii.org/nie/cases/NIIT/2017/02240_16IT.html Cite as: [2017] NIIT 02240_16IT, [2017] NIIT 2240_16IT |
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THE INDUSTRIAL TRIBUNALS
CASE REF: 2240/16
CLAIMANT: Robert Kirk
RESPONDENT: Royal Mail Group
DECISION ON A PRE-HEARING REVIEW
The decision of the tribunal is as follows:-
(i) The claimant's application for an order for leave to amend his claim to include a claim of direct disability discrimination and/or a claim for failure to comply with the duty to make reasonable adjustments, pursuant to the Disability Discrimination Act 1995, as amended, is refused.
(ii) A Case Management Discussion is required to be arranged to enable the tribunal to make relevant case-management directions and/or orders in relation to the claimant's claim of unfair dismissal.
Constitution of Tribunal:
Employment Judge (sitting alone): Employment Judge Drennan QC
Appearances:
The claimant was represented by Ms S Agnew, Barrister-at-Law, instructed by O'Hare & Company, Solicitors.
The respondent was represented by Ms L Rankin, Solicitor, of Carson McDowell LLP, Solicitors.
Reasons
1.1 The claimant presented a claim of unfair dismissal to the Office of the Tribunals on 25 October 2016. The respondent presented a response to the Office of the Tribunals on 1 December 2016, denying liability for the claimant's said claim.
1.2 The claimant's claim form at Paragraph 7.4 stated:-
"I was unfairly dismissed from my employment due to my managers constructing my dismissal by not applying National Agreement, company policies in a fair and transparent way. I was treated differently from other members of staff. From April 2016 until my dismissal in August 2016 management breached nationally agreed procedures with my union in dismissing me which has left me unduly stressed and financially unstable. I was dismissed on 1 st of August summarily without notice."
1.3 In an e-mail dated 23 November 2016, the claimant's representative, who had come on record on 23 November 2016 stated:-
" ...
Furthermore, we wish to make an application to amend the claimant's ET1.
We have amended same to include disability discrimination and with reference to the substantive part of the claim, we set out same as follows:
'I believe I am being victimised on the grounds of my disability. I also believe that my employer has failed to make any reasonable adjustments for my disability in all the circumstances'."
This e-mail was sent before the respondent's representatives presented their response to the tribunal, as set out above, on 1 December 2016.
Unfortunately the e-mail, dated 23 November 2016, from the claimant's representative, was not copied to the respondent's representative by either the claimant's representative and/or the tribunal. Thus, understandably, the respondent's representative was unaware of this application until the commencement of the Case Management Discussion, by way of Telephone Conference Call, held on 18 January 2017. At that hearing, the claimant's representative stated that he now wished to have the opportunity to obtain further instructions from his client before confirming that the claimant still wished to proceed with his application to amend his claim form to include the said claim of disability discrimination. At the Case Management Discussion on 18 January 2017, the claimant's representative confirmed that the reference in the e-mail of 23 November 2016 to 'victimisation' was not to include a claim for discrimination by way of victimisation but rather was used in the colloquial sense of the word. He also confirmed that the claimant in seeking to make a claim of disability discrimination, it related to direct disability discrimination and/or a claim for failure to comply with the duty to make reasonable adjustments, pursuant to the Disability Discrimination Act 1995, as amended.
In a further e-mail, dated 25 January 2017, in accordance with the direction/order of the tribunal made at the Case Management Discussion on 18 January 2017, as set out in the Record of Proceedings dated 18 January 2017, the claimant's representative, after obtaining further instructions, wrote to the Office of the Tribunals stating, inter alia:-
" ...
The claimant has been directed to notify the tribunal of his intention to amend the claim form.
The claimant's case is before tribunal at present under the jurisdiction of an unfair dismissal claim only.
The claimant seeks leave to amend his claim by inserting and adding the following wording into his ET1 form under the heading 'Details of Claim':
I believe that I am being [discriminated] on the grounds of my disability. I also believe that my employer has failed to make any reasonable adjustments for my disability in all the circumstances.
The amendment has been sought to add a new cause of action, namely disability discrimination. The claimant accepts that this point was not raised in the original claim form, however the claimant will say that this is linked to the original claim of unfair dismissal and that it is clearly linked to the same facts as the original claim.
The unfair dismissal claim was brought within time. Further, the factual basis is essentially as already set out in the original claim.
Finally, the respondent is being put on notice of the possibility of amending the claim form at the earliest opportunity. The issue has arisen only when papers were examined by the claimant's legal representatives and the claimant asserts the requirements of relevance, reason, justice and fairness have all been satisfied ... ."
At a Case Management Discussion on 3 February 2017, as set out in the Record of Proceedings dated 6 February 2017, this pre-hearing review was arranged to consider the claimant's application for an order for leave to amend his claim in accordance with the terms of the claimant's representative's letter dated 25 January 2017.
1.4 At the hearing of this pre-hearing review, the claimant and the respondent did not call any oral evidence. The claimant's representative provided to the tribunal a bundle of documents, without objection, which consisted, in essence, of discoverable documents relating to the disciplinary process which culminated in the dismissal of the claimant on 1 August 2016 and his subsequent unsuccessful appeal on 2 November 2016, the result of which was notified to the claimant on 23 November 2016. She also made detailed oral submissions to the tribunal. In the course of her said oral submissions, upon questioning by the tribunal, the claimant's representative informed the tribunal, albeit this had not been previously stated in the course of these proceedings and, in particular, in the e-mail dated 23 November 2016 and/or in the claimant's representative's letter dated 25 January 2017, that the disability relied upon by the claimant, for the purposes of this application was 'migraine, congenital heart condition, known as Aortic Stenosis and long-term anxiety'; and that the reasonable adjustments, which were not specified, related to, in terms, how the whole disciplinary process had been carried out, including the fact-finding investigation, disciplinary hearing and appeal hearing.
The claimant's representative acknowledged that, at all material times, during the said disciplinary process, the claimant had the assistance of and/or was represented by his trade union representative. It has to be noted in this claim form, presented to the tribunal on 25 October 2016, the claimant stated that he was a member of the trade union, The Communication Workers Union, and was 'awaiting union support'. It was agreed that the claimant's representative, who came on record for the claimant on 23 November 2016, as stated previously, are the solicitors in Northern Ireland for the said trade union.
The respondent's representative strongly objected to the claimant's said application for an order for leave to amend the claimant's claim, in a detailed written submission, together with further oral submissions during the course of this hearing.
2.1 In determining the issue whether the tribunal should make an order for leave to amend the claimant's claim, in accordance with the terms of the claimant's representative's letter dated 25 January 2017, the following legal principles, in my judgment, are relevant to same, as set out in the following sub-paragraphs.
2.2 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 ... ."
2.3 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.
2.4 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:-
'(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).)
2.5 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.
2.6 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 ...."
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."
2.7 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.
2.8 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. "
In the circumstances, I was not prepared, in the absence of hearing evidence relevant to the merits, to conclude, in the present proceedings, the proposed amended claims are 'utterly hopeless', as suggested in Woodhouse. (See also the guidance in SCA Packaging Ltd v Boyle [2009] UKHL 37.) For the purposes of my decision on the amendment issue, as set out later, in this decision, I have assumed the claims, as set out in the proposed amendments, are 'arguable'.
2.9 Although, as indicated in the previous sub-paragraph, I was not prepared to conclude that the said proposed amended claims were 'utterly hopeless claims', 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.
2.10 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.
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]
2.11 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.
2.12 In British Transport Police Authority v Hillen & Other [2015] UKEAT/0251/15, Mr Justice Singh, after approving the above dicta in Chandhok and Kuznetsov, stated:-
" 35. To that I would add simply this. If anything, it is clear that in the years that have since passed Tribunals are now subject, as are the ordinary civil courts, to the overriding objective. We have become, if anything, more alive in the years that have passed to the need to keep litigation within sensible bounds and to keep costs proportionate, and we have also become well used to the trite point that when judicial resources have to be used in relation to one case then there can be a diversion of resources that might otherwise have been used to deal with other cases and that that can lead to delay in the resolution of other disputes and potentially injustice to others.
36. These are all considerations that echo, in my view, the salutary guidance that was given by the President of this Appeal Tribunal in Chandhok in the passage to which I have referred. In particular, as Langstaff J emphasised at paragraph 16 of that Judgment:
'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 ... '
As he went on to say in the same passage, regarding the claim as set out in the ET1, which is a formal claim and which 'sets out the essential case. It is that to which a respondent is required to respond.
37. Finally in the citation of authority, my attention has been drawn to the recent decision of this Appeal Tribunal in Remploy Ltd v Abbott and Others UKEAT/0405/14, in which the Judgment was given by HHJ Serota QC sitting alone. In the helpful summary of that Judgment at paragraph 6 it is recorded that the Appeal Tribunal held that the Employment Judge had fallen into error in part by allowing amendments that had not been fully formulated or particularised and by considering them together rather than examining each proposed amendment separately. It was further said in summary that without properly formulated and particularised draft amendments it was impossible for the Employment Tribunal or the Respondent to consider how the amendments would affect the existing case management model. My attention was drawn specifically to paragraph 87 in the Judgment, where HHJ Serota QC said:
'87. The Employment Tribunal should have looked at each proposed amendment separately rather than lumping them all together and should have addressed the evidence of Ms Goldsborough. These amendments, as can be seen, are not particularised as they should have been before permission to amend could have been granted. In the absence of particularised amendments it was impossible for the Employment Tribunal or for the Respondent to consider the effect of those amendments, in particular in relation to previous case management and whether the timetable for the hearing would be affected. ... '."
Further, in Scottish Opera Ltd v Winning [2010] UKEAT/0047/09, Underhill J, as he then was, emphasised in Paragraph 5 of his judgment that it is essential that parties seeking permission to amend to introduce such a claim formulate the proposed amendment in the same degree of detail as it will be expected had it formed part of the original claim; and the tribunal should ensure that the terms of any such proposed amendments are clearly recorded:-
" ... does not identify with any precision the adjustments which it was said the appellant failed to make, nor the dates of the alleged failures (or if they have said to have continued over a period, what that period was). Nor does it refer to the specific provisions of the 1995 Act : that is not essential, but it is a useful discipline. In view of the course which the argument before me took, I asked Mr MacDonald to provide a further draft, without prejudice to any objection which Ms Wilson might have. He produced a draft at short notice in the course of the hearing; but when it became clear that I was going to have to reserve judgment I gave him permission to lodge a definitive draft within seven days."
2.13 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'.
2.14 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).
2.15 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.
2.16 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.
2.17 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."
2.18 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.
2.19 As seen above, the first relevant circumstance cited in Keeble is the extent of the default 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."
2.20 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.
2.21 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).
2.22 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.)
2.23 When assessing whether time should be extended to allow a discrimination claim to be heard out of time, the fault of the claimant is a relevant factor to be considered but a claimant is not to be held culpable for what is properly to be regarded as the fault of his or her legal advisers (see Elias J in Virdi v Commissioner of Police of the Metropolis [2007] IRLR 24 and also HHJ McMullen QC in Chohan v Derby Law Centre [2004] IRLR 685).
2.24 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].
2.25 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.
3.1 Applying the principles set out in the previous paragraphs, I have no doubt that the proposed amendments, the subject-matter of this application, are major amendments. As recognised by the claimant's representative, in the e-mail dated 25 January 2017, what was proposed was to 'add a new cause of action, namely disability discrimination'. In reality, it was seek to add two new claims, namely a claim of direct disability discrimination and also a claim for failure to comply with the duty to make reasonable adjustments, pursuant to the Disability Discrimination Act 1995, as amended. This e-mail also acknowledged such claims had not been raised in the original claim form. During the course of her submission, the claimant's counsel sought to suggest the reference in the claim form to ' I was treated differently from other members of staff' was indicative of a claim of direct disability discrimination. Firstly, it must be noted that, apart from applying for leave to amend the claimant's claim to include the two new said claims, there was no detail provided of each said claim. Further, having considered the bundle of documents provided by the claimant's counsel, for the purposes of this application, which related to the disciplinary process, I am satisfied that this reference in the claimant's claim form related to an issue of inconsistency in relation to the operation of relevant codes and procedures and not to less favourable treatment in the context of direct disability discrimination.
3.2 As I have stated previously, I am not in a position to state these proposed new claims are manifestly hopeless. Indeed, I accept that, if what had been stated in the e-mail dated 25 January 2017 had been set out in the original claim form, the said claims of direct disability discrimination and failure to comply with the duty to make reasonable adjustments would probably have been registered as claims by the tribunal under the somewhat wide and generous acceptance procedure, under the Rules of Procedure; albeit, I have no doubt, if that had happened, the claimant would have been faced with a detailed Notice for Additional Information. If these amendments are granted, such matters will still be required to be dealt with and will be additional to any such Notices relating to the claimant's claim of unfair dismissal, which still continues.
3.3 In the absence of any detail of the precise basis for each of these proposed claims, and for which there was no proper explanation, it is very difficult for me to determine to what extent these proposed claims, if allowed, will greatly lengthen these proceedings and/or the amount of additional evidence, which would require to be called by either the claimant or, more particularly, the respondent.
In the initial e-mail of 23 November 2016, no details of the proposed amendments were given. At the Case Management Discussion on 18 January 2017, the claimant's representative stated he wanted to obtain further instructions before confirming whether to proceed with the application. Yet the further e-mail still failed to provide any further relevant details of the claim. As set out in the legal authorities, in the previous paragraph of this decision, the importance of setting out the details of the amendments proposed is emphasised. (See Remploy but also Scottish Opera Ltd; and Chandhok, Kuznetsov and British Transport Police Authority.) This failure must be all the more important when the tribunal has to exercise its discretion by carrying out the relevant balancing act, as seen in Selkent. There is nothing to suggest that any new facts or documents have emerged since the conclusion of the disciplinary process, which would not have been known or available to the claimant, at the time when the original claim was presented to the tribunal. I have concerns about the strength of any such proposed claims by the claimant; but, for the reasons set out above, those concerns are not sufficient, in my judgment, to be determinative of this application.
3.4 The claimant's representative placed great reliance on the fact that, as seen in the bundle of documents, on 31 December 2015, the claimant was examined by the Occupational Health Department of the respondent and its stated:-
"In my opinion disregarding the effect of treatment, Mr Kirk would be considered as disabled under the Disability Discrimination Act. The conditions these related to are heart condition, anxiety ... ."
At this pre-hearing review, the respondent's representative did not accept the claimant was a disabled person, for the purposes of these claims, pursuant to the 1995 Act. Clearly this issue will require to be further investigated by the respondent's representative, if the said proposed amendments are allowed. At this stage, in light of the foregoing, it is impossible for me to determine whether in fact this issue will remain an issue between the parties at any substantive hearing. Suffice to say, however, it would appear relevant evidence on this issue was clearly obtainable during the disciplinary process and more particularly before the presentation to the tribunal of the original claim. However, in any claims, under the 1995 Act, issues other than disability arise. The issue of disability is only the first step to enable the claimant to bring a claim. These claims give rise to many additional issues, in particular in relation to less favourable treatment and reasonable adjustments, which are not the same as the issues which will be required to be determined by the tribunal at a substantive hearing in relation to a claim of unfair dismissal.
In these circumstances, I therefore have no doubt that there will be additional evidence, which will probably lengthen the hearing; but I am not persuaded, albeit with some hesitation, in the absence of any detail, it will greatly lengthen the hearing. However, an increase of even one day/two days of hearing are matters which cannot be ignored and which must be taken into account, when determining this application; albeit, in themselves, they are not determinative factors. I accept there is no real/forensic prejudice to the respondent, if it is required to respond to these proposed amended claims; but the respondent will, of course, have to respond to additional issues and may indeed have to call additional witnesses - all of whom I understand are available, if required.
3.5 In light of the foregoing, I am not satisfied these proposed amendments are, as the claimant's representative sought to suggest, merely re-labelling. On the basis of the absence of any detail of these precise amendments, and which give rise to further additional issues and facts to be proved, I do not accept these proposed amended claims fall within either the first or, in particular, the second category set out in Harvey. It is not, in my judgment, taking into account the claimant's original claim form, which was limited in detail, a case where the claimant is merely putting a new label on facts already pleaded. In my judgment, these are new claims, falling within the third category set out Harvey. This therefore means that issues of time require to be considered, albeit, as set out previously, such issues may not be determinative of the matter. The claimant was dismissed on 1 August 2016 and his original claim was not presented to the tribunal until 25 October 2016. The earliest application for amendment was not brought until 23 November 2016 and therefore the claimant's proposed claim of direct disability discrimination, relating to his dismissal, is out of time. It is not known, as seen before, what reasonable adjustments are the subject of the proposed amended claim, relating to failure to comply with the duty to make reasonable adjustments. Certainly, insofar as this claim relates to the conduct of the dismissal hearing, such a claim would appear to be out of time. The appeal was heard on 16 September 2016; and if this proposed amended claim relates to failure to comply with reasonable adjustments at the appeal hearing, then such a claim could be in time. However, the claimant did not give any evidence at this hearing or indeed attend the hearing and therefore the tribunal was provided with no evidence why time, if required, should be extended on 'just and equitable grounds' for either of the claimant's said claims. As seen in Lindsay v LSE, it still remains for the claimant to show that it just and equitable for an extension of time to be granted, as part of the multi-factorial assessment, even in the absence of any prejudice to the respondent. If the claimant's claim for reasonable adjustments relates to the appeal, which would not appear to be out of time, as set out above, and therefore not require any extension of time, this does not alter my conclusions in relation to these proposed amendments, for the reasons set out later in this decision.
3.6 In all of this, it has to be remembered the claimant was represented at all the internal disciplinary and appeal hearings, by his trade union representative, who with the claimant would also have known of the conclusion of the Occupational Health report, referred to previously; but yet, on my perusal of the documents provided by the claimant's representative, there does not appear to be any suggestion of any claim pursuant to the 1995 Act. Further, there was no evidence, which I found most significant, when determining this application why neither of these claims were brought when the claimant presented his original claim form to the tribunal on 25 October 2016. No proper explanation was forthcoming - indeed, there was a silence about what happened or what the claimant and/or his union representative did, between 1 August 2016 and 25 October 2016, when the original claim was presented to the tribunal. (See further Chandhok; British Transport Police Authority and Kuznetsov - where the importance of what is put in the original claim form is emphasised but also the importance of providing an explanation for failing to make the proposed amended claims in that original claim form.) The claimant's solicitor came on record on 23 November 2016 and I am satisfied that, upon doing so, he promptly gave notification of the proposed amendments in his e-mail dated 23 November 2016.
3.7 In reaching a conclusion in relation to an application for an order for leave to amend, it is often difficult, in the final analysis, to carry out the balancing exercise, referred to Selkent, in relation to the relative injustice to the parties in refusing or granting the proposed amendments. It is a multi-factorial assessment where no one factor normally determines the application. So, in this case; but after taking into account all of my conclusions, as set out in the previous sub-paragraphs, I have decided, when carrying out the balancing exercise, the greater hardship and injustice would be for the respondent, if the application was granted. In essence, I have concluded, the claimant is trying 'get in through the backdoor' 'new claims', for which there has been no proper explanation for the failure to bring such claims, when the original claim form was presented to the tribunal; and, in particular, has given no evidence of what took place or why time should be extended, if required, in respect of the period between 1 August 2016 and 25 October 2016. This is in a situation where no new facts or documents have emerged and where the claimant was represented throughout the internal processes by his trade union. As part of my consideration of the hardship to the claimant, I cannot ignore the claimant will still be able to proceed with his unfair dismissal claim (see Selkent). In such circumstances, I have concluded the balance falls in favour of the respondent and the application must be refused. Even if I am wrong and these proposed claims had fallen into the second category of Harvey, where time would not have been an issue, in relation to any of the proposed claims, my conclusions would have been the same in the circumstances (see further Ali and the recognition of the similarity of the test of 'just and equitable' and the test in Selkent).
4.1 The claimant's application for an order for leave to amend his claim to include a claim of direct disability discrimination and/or a claim for failure to comply with the duty to make reasonable adjustments, pursuant to the Disability Discrimination Act 1995, as amended, is refused.
4.2 A Case Management Discussion will now require to be arranged to enable the tribunal to make relevant case-management directions/orders in relation to the claimant's claim of unfair dismissal.
Employment Judge
Date and place of hearing: 24 February 2017, at Belfast
Date decision recorded in register and issued to parties:
