COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
(The Honourable Mr Justice Rimer, Lord Davies of Coity CBE
and Mr J. Hougham CBE
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE CHADWICK
LORD JUSTICE MAURICE KAY
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Mr Robert Thomas (solicitor advocate of Eversheds LLP, 1 Callaghan Square, Cardiff CF10 5BT) for the Respondent
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Lord Justice Waller :
“ (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 alternation 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 . . .”
“We add that it seems to us in a case like this one, where, on the approach to the ambit of the originating application set out in paragraph 58 hereof, a complaint or basis of claim was not included in the originating application, but related to an act or acts within three months from the presentation of the originating application, it is probably unlikely that there would be different outcomes to the issue whether it should be added to and included in the complaints to be dealt with by the Employment Tribunal:
(i) on the approach set out in paragraph 58, which, as appears from paragraph 58(f), includes a consideration of the statutory time limit in s.76 of the Sex Discrimination Act 1975, and thus a consideration of whether it would be just and equitable in all the circumstances to allow the introduction of the new and additionally alleged act of discrimination, and
(ii) on an application of Quarcoopome v Sockshop Holdings Ltd  IRLR 353, which, although it treats the complaint as being within the ambit of the originating application, involves (as we have explained) a consideration of whether all the circumstances including the balance of hardship and injustice (and thus fairness) points to the addition of the new and additional alleged act of discrimination.”
“(3) I always knew and thought they do not hire blacks. This suspicion of mine was firmly established when I read their recruitment statistics, which effectively excluded blacks.
(4) In September 1998 I attended an interview for a senior survey methodologist post, which is based at the social survey division.
(5) At this interview the Chairman, a representative from Personnel, asked me why I keep on applying to their organisation?
(6) I answered that I am trained in survey methodology, I had worked in this field in UK as well as overseas. I told the Chairman that I would have thought that ONS was the ideal place for a statistician with my background to work at.
(7) For such a question from the recruitment personnel, the telling statistics with their work and recruitment practice, which excluded blacks, I thought the authorities should be told the experience of a black candidate.”
“(25) I believe the rejection for the post I was interviewed is on the ground of my race. I am black of African origin.
(26) I also believe my letter of complaint to the authorities had played a part in my rejection, thus was victimized for the complaint I filed alleging that the rejections to the posts I fully qualify was on the ground of race.”
The originating application had been prepared by the appellant himself.
“In the view of the Tribunal a number of potentially discriminatory elements still remain in the respondent's procedure and, so far as the evidence before the Tribunal goes, have not been perceived. There is no doubt, for instance, that the existing interview procedures favour internal applicants. The applicant in the present case has effectively shown that there is different supporting documentation in the case of internal applicants. His cross-examination was also responsible for disclosing that different forms are in use in their case. It is apparent that a number of the criteria will favour those who have knowledge of the respondent's existing procedure. It is of course likely that some of this advantage may be both inevitable and justifiable in terms of knowledge of an adaptation to the respondent's project and work patterns. The advantage thus given to internal candidates is an advantage enjoyed in respect of promotion prospects. Since such ethnic minority employment as exists is clustered in the lower grade posts it follows that “white” dominance of higher grade posts, such as those for which the applicant applied, is perpetuated. It is often assumed that where whites dominate the higher posts it is bound to be more difficult for other ethnic groups to break in.”
“I believe the rejection from the post was both directly and indirectly discriminatory on grounds of race. I base my claim of indirect discrimination on the fact that the ONS had a policy of offering preference in recruitment to internal candidates. The statistics show that black people are grossly underrepresented within ONS. Being an internal candidate was therefore a condition or requirement which had a disparate impact on black people and which was not justified.”
“(7)The Tribunal will be fully aware of its broad discretion to permit an application to amend as discussed in Selkent v Moore  IRLR 661
(8) The first issue relevant to the exercise of that discretion is whether by this claim Mr Ali simply seeks to re-label already pleaded facts, or whether he is seeking to introduce a new claim out of time.
(9) As to that, Mr Ali's originating application stated the nature of his complaint at Box 1 as “whether I have been victimized and discriminated against on racial grounds”, there is authority to the effect that a complainant that simply asserts “race discrimination” can be taken to cover both forms of discrimination (Quarcoopome v Sockshop Holdings Ltd  IRLR 353 EAT), regardless of the state of the pleaded facts. However, Mr Ali accepts that it would be difficult to run such an argument in this case in light of later authority which casts doubt on Quarcoopome, namely Housing Corporation v Bryant  ICR 123 CA (with its requirement to examine the case as set out in the original application to see if it applies the necessary “causative link” with the proposed amendment, which causative link is not clearly made out in his case). On that analysis his amendment would be an application to the tribunal to extend time for him to bring an indirect discrimination claim out of time, on the basis that it would be just and equitable to do so under s.68(6) of the RRA. Again, as to that discretion, the tribunal will be fully aware of the breadth of its discretion, as discussed in Hutchinson v Westwood  1RLR 69. However because of the unusual background to the case, Mr Ali's applications fall somewhere between the two positions.
(10)This is because the issue of the potential indirect discrimination claim would not have, in any event, been evident to Mr Ali when he first pleaded his originating application, and only became an issue during a previous hearing. The existence of the policy only became apparent during the disclosure process when Mr Ali was served with the (fairly weighty) recruitment handbook referred to above. Even then Mr Ali did not necessarily realise the significance of the policy in his case until he made requests for disclosure of the CVs of the other candidates with whom he was competing and was informed, fairly close to the hearing of his complaint, that there were no such CVs, but that internal candidates completed different paperwork to external ones, and their applications were generally accompanied by recommendations from their managers when the referees for external candidates did not appear to have been contacted.”
The Statutory Provisions
Race Relations Act 1976 (as amended by Race Relations (Amendment) Act 2000)
1 Racial discrimination
“(1) A person discriminates against another in any circumstances relevant for the purposes of any provision of this Act if-
(a) on racial grounds he treats that other less favourably than he treats or would treat other persons; or
(b) he applies to that other a requirement or condition which he applies or would apply equally to persons not of the same racial group as that other but-
(i) which is such that the proportion of persons of the same racial group as that other who can comply with it is considerably smaller than the proportion of persons not of that racial group who can comply with it; and
(ii) which he cannot show to be justifiable irrespective of the colour, race, nationality or ethnic or national origins of the person to whom it is applied; and
(iii) which is to the detriment of that other because he cannot comply with it.
(1) A person (“the discriminator”) discriminates against another person (“the person victimised”) in any circumstances relevant for the purposes of any provision of this Act if he treats the person victimised less favourably than in those circumstances he treats or would treat other persons, and does so by reason that the person victimised has-
(a) brought proceedings against the discriminator or any other person under this Act, or
(b) given evidence or information in connection with proceedings brought by any person against the discriminator or any other person under this Act; or
(c) otherwise done anything under or by reference to this Act in relation to the discriminator or any other person; or
(d) alleged that the discriminator or any other person has committed an act which (whether or not the allegation so states) would amount to a contravention of this Act.
or by reason that the discriminator knows that the person victimised intends to do any of those things, or suspects that the person victimised has done, or intends to do, any of them.
3 Meaning of “racial grounds”, “racial group” etc
(1) In this Act, unless the context otherwise requires-
“racial grounds” means any of the following grounds, namely colour, race, nationality or ethnic or national origins;
“racial group” means a group of persons defined by reference to colour, race, nationality or ethnic or national origins, and references to a person's racial group refer to any racial group into which he falls.
(2) The fact that a racial group comprises two or more distinct racial groups does not prevent it from constituting a particular racial group for the purposes of this Act.
(3) In this Act-
(a) references to discrimination refer to any discrimination falling within section 1 or 2; and
(b) references to racial discrimination refer to any discrimination falling within section 1,
and related expressions shall be construed accordingly.
4 . . . Applicants and employees
(1) It is unlawful for a person, in relation to employment by him at an establishment in Great Britain, to discriminate against another-
(a) in the arrangements he makes for the purpose of determining who should be offered that employment; or
(b) in the terms on which he offers him that employment, or
(c) by refusing or deliberately omitting to offer him that employment.
54 Jurisdiction of [employment tribunals]
(1) A complaint by any person (“the complainant”) that another person (“the respondent”)-
(a) has committed an act . . . against the complainant which is unlawful by virtue of Part II [section 76ZA or, in relation to discrimination on grounds of race or ethnic or national origins, or harassment, section 26A, 26B or 76]; or
(b) is by virtue of section 32 or 33 to be treated as having committed such an act . . . against the complainant,
may be presented to an [employment tribunal].
68 Period within which proceedings to be brought
(1) An [employment tribunal] shall not consider a complaint under section 54 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
(b) in the case to which section 75(8) applies, the period of six months so beginning]
(6) A court or tribunal may nevertheless consider any such complaint, claim or application which is out of time if, in all the circumstances of the case, it considers that it is just and equitable to do so.”
Discussion of Statutory Provisions
“An originating application that makes a claim, as this one did, for race discrimination, in our view incorporates any claim for race discrimination, whether it be under 1 (1) (a) or (b) or s.2, discrimination by way of victimization, or any other claim that may be made on the grounds of race under that Act. . . . We therefore conclude that the application to amend, or to particularise, whichever it was, was not time-barred; and the test that the Tribunal should have applied at the very highest, and this is on the basis that it was an application to amend rather than just particularise, was to see whether any hardship or prejudice would be incurred by the respondents sufficient to justify rejecting the application, and in answering that question of course the Tribunal would have to have in mind that if they reject the application they are, in effect, shutting out a claim which the applicant wishes to make. That is a very strong action to take, and one which we would imagine tribunals would be very slow to adopt. Without wishing to prejudge the issues here, because we feel that the decision on that has to be made by the Tribunal, we, for our part, have to say that we would find it difficult to make such a decision, or identify sufficient grounds here on which it could be made, but in saying that we are not of course seeking to exercise the tribunal's discretion for them. It must be a matter for them.”
“We have concluded that in the light of the authorities this is a new claim, as the tribunal found. The observation by Buckley J in Quarcoopome that a claim of race discrimination includes a claim of victimization was not necessary for the determination in that case and should be treated as an obiter remark. In our view it cannot properly stand in the light of the Court of Appeal's judgment in Bryant. As to the balance of hardship, we think it implicit in the Tribunal's reasoning that the hardship to the respondent of meeting a new as yet still unparticularised claim on a wider factual footing half way through the substantive hearing of the case, outweighed the prejudice to the appellant, who is still able to pursue an extant claim of direct racial discrimination (see Selkent).”
“(a) In our judgment paragraph 9 of the judgment in Quarcoopome does not accurately summarise the position in Dodd v British Telecommunications Plc  ICR 116. As we have said, the originating application in Dodd's case identified the refusal of the applicant's application for a job (see paragraph 49 above).
(b) In our judgment the approach taken in Quarcoopome is different to that taken in Dodd because it looks to the wide description of the claim asserted rather than the act or acts complained of. Indeed in Dodd the problem was in many ways the inverse of that which existed in Quarcoopome because in Dodd the act or event that formed the subject matter of the complaint was identified and what was missing was a reference to the relevant Acts or to race or sex discrimination.
(c) It follows in our judgment that Quarcoopome is not supported by, or in line with, the decision in Dodd and paragraph 9 of the judgment in Quarcoopome is flawed.
(d) In Quarcoopome no mention is made, or account taken, of the point that the definition sections in both statutes exclude victimisation from the definition of race (or sex) discrimination. Here we are not concerned with a claim for victimisation but it seems to us that this omission in the reasoning in Quarcoopome supports the view that where an applicant seeks to add a victimisation claim Quarcoopome was wrongly decided (see also paragraph 57(1) hereof).
(e) Further in our judgment this omission in the reasoning supports the view that in Quarcoopome this appeal tribunal gave insufficient weight to the wording and scheme of the legislation.
(f) Although we think that this is not mentioned expressly, as we understand it the amendment concerning the allegation of indirect discrimination in Quarcoopome was based on acts that took place within three months of the presentation of the originating application. (This was the position in this case.)
(g) That understanding leads to the conclusion that the reasoning and finding in Quarcoopome as to the application to amend or particularise not being out of time applies only when such an application relates to acts that took place (or are to be treated as having taken place as an act extending over a period) within the three-month time limit.
(h) If that understanding and conclusion, and therefore that limitation on the extent and effect of the decision in Quarcoopome, is not correct it would lead to the surprising result that a claimant who particularised all the bases of his claim for discrimination and therefore demonstrated that some or all of them related to acts outside the statutory time limit would be in a worse position than a claimant who simply claimed discrimination but did not particularise the acts he was complaining of. This is because in the former case it is the common, and in our judgment correct, approach of employment tribunals (i) to consider whether all, or some, of the claims are out of time, and (ii) in respect of those that are out of time, whether they should consider them as claims (rather than only as relevant background if there are claims in time) on the basis that it would be just and equitable to do so. In our judgment it would be remarkable, and wrong, if at the same time points were not considered on the addition of acts complained of to an originating application, or otherwise to a case.
56. If it had been necessary for us to do so we would have refused to follow Quarcoopome because, in our judgment: (a) as set out in paragraph 55(a) to (c) above, it does not accord with or follow the reasoning and approach in Dodd v British Telecommunications Plc  ICR 116; (b) it fails to have proper regard to the wording and the scheme of sections 3(3), 54 and 68 of the Race Relations Act 1976 (and thus the equivalent sections in the Sex Discrimination Act 1975, namely, sections 5(1), 63 and 76 thereof); (c) it fails to have proper regard to the point confirmed by the Court of Appeal in the later case of Cast v Croydon College  ICR 500 of the need in discrimination cases to identify the acts complained of, and (d) for these reasons it is wrong.”
Summary of Submissions of Counsel
Lord Justice Chadwick :
“. . . the Applicant's Originating Application includes a claim of discrimination contrary to [section 1(1)(b)] Race Relations Act 1976 in that the Respondent's recruitment policies imposed a requirement that internal candidates be given priority.”
Lord Justice Maurice Kay
“Under s.54 of the 1976 Act, the complainant is entitled to complain to the Tribunal that a person has committed an unlawful act of discrimination, but it is the act of which complaint is made and no other that the Tribunal must consider and rule upon. If it finds that the complaint is well founded, the remedies which it can give the complainant under s.56 (1)….are specifically directed to the act to which the complaint relates. If the act of which complaint is made is found to be not proven, it is not for the Tribunal to find another act of racial discrimination of which complaint has not been made to give a remedy in respect of that other act.”
Thus, until the act complained of has been specified, there is nothing upon which the Tribunal can bite. It behoves applicants and their advisers to have this well in mind when drafting their applications and seeking to amend them.