England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
His Honour Judge Richardson
UKEATPA/0672/11/ZT

		Royal Courts of Justice Strand, London, WC2A 2LL
		24/07/2013

Lord Justice Rimer :

1. This is a renewed application for permission to appeal, Elias LJ having on 7 November 2012, on the papers, refused permission. He regarded an appeal as having no real prospect of success.
2. The applicant is Dilip Dass, the claimant in employment tribunal proceedings. The respondents are: (1) his former employer, The College of Haringey, Enfield and North East London ('the College'), and (2) the Secretary of State for Education. I take the factual background, in part verbatim, from the judgment of His Honour Judge David Richardson given in the Employment Appeal Tribunal ('the EAT') on 16 July 2012, his order being the subject of the applicant's challenge.
3. The applicant was for some years employed by the College as a lecturer until 31 March 1993, when he took early retirement on what he describes as 'efficiency' grounds. He was entitled to a pension under the Teachers' Pension Scheme and took it. On 20 September 1993, he was again employed by the College, this time as a part-time lecturer, and he remained so employed until, or at least until, 3 July 1995. On 19 December 1994 – over 18 years ago – he signed the employment tribunal claim that ultimately led to the present permission application, which it appears he presented on 12 January 1995. It was a part-time worker's pension claim, the complaint being that as such a worker he had been wrongfully excluded from the College's pension scheme. It was one of 24 such claims brought against the College and one of many brought nationally against other employers.
4. Such claims gave rise to test cases, and pending their determination the bulk of the claims were stayed, including the applicant's. One such case, Preston v. Wolverhampton Healthcare NHS Trust (No 2) [2001] IRLR 237 was the subject of a reference to the Court of Justice; another case concerned employees who, like the applicant, acquired part-time work after taking an occupational pension: Somerset County Council v. Pike [2009] IRLR 870. The applicant's case was stayed until after that case had been decided.
5. Following the determination of those cases, the College accepted that the applicant was entitled to retrospective membership of the pension scheme from 20 September 1993 until 3 July 1995. The London Central Employment Tribunal ('the ET') promulgated a judgment to that effect and sent it to the parties on 29 March 2011.
6. That was not, however, the end of the matter because the applicant wished to continue teaching part-time at the College after 3 July 1995 and it is accepted that he did some such work under various contracts until he was dismissed with effect from 14 March 2003. There is an issue as to how much work he obtained between 3 July 1995 and 4 January 1996 and whether he could be described as having a stable employment relationship, but this application is not concerned with that. Paragraph 2 of the ET's judgment sent to the parties on 1 April 2011 directed a merits hearing as to that issue, which reflected, as Judge Richardson put it, that Employment Judge Sigsworth 'was prepared to countenance a potential amendment to the claim form.'
7. The matter leading to this application was the applicant's claim in late 2010, some 16 years after the commencement of his tribunal application, to amend his original ET1 (indeed, the claim was so historic that I believe it was still known as an IT1). The proposed amendments were contained originally in the applicant's draft 'statement of claim' dated 25 October 2010, which makes for difficult reading. What appears, however, from the 'particulars of damage' identified in its prayer for relief is that he wanted to make claims for arrears of pay between 1993 and 1995, refunds in respect of National Insurance Contributions for 1993 to 2003, 'costs and preparation time orders' under rules 39 and 42 of the Employment Tribunals Rules of Procedure 2004 and statutory interest. The body of the pleading included generalised criticism of the College in denying him his contractual rights and, amongst other things, asserted that its failure to deduct NICs at the contracted out rate 'constituted in [sic] a fraudulent act, because [the College] improperly benefited from a fiduciary position …', which may be regarded as having been an ambitious claim. The pleading asserted that the applicant became aware of the College's 'misconduct' in 2008. Paragraph 8 asserted that the College's 'continuous misconduct and discriminatory treatment [of the applicant] in comparison with Full-Time workers have made the Applicant a victim of institutional injustice'. The pleading does not however, at any rate overtly, advance a discrimination claim, and the final paragraph of the pleading, before the prayer for relief, reads only:

'13. By reason of the matters mentioned above the Applicant claims damages, because he has suffered financial loss in breach of contract regarding unpaid arrears, inaccurate assessment of pay, incorrect deductions of NI Contributions, which have affected his State Retirement Pension'

8. The production of that document led to an application by the applicant to the ET by a letter of 21 December 2010 for permission to amend his original claim dated 19.12.1994. He said he wanted to add claims for breach of contract, breaches of regulations enacted in 2000 and 2002, 'victimisation for protected acts' (of which he identified none, although I presume he relies on the making of his original claim), and for wasted costs 'for misconduct by the Respondent'. He said he wanted to add claims for unlawful deductions from his wages for years running from 1996/1997 to 2003/2004 inclusive.
9. The College's solicitors, Mills & Reeve, explained the College's opposition to the proposed amendments in their letter to the ET of 13 January 2011. They pointed out that all the new claims relating to the applicant's employment after 4 January 1996 could not be amendments to the existing claim but could only be new claims, and that the applicant was significantly out of time to add them. Further, he had always known the hours he was working, the pay he was receiving and the deductions made from his salary. The College asserted that it did not understand what breach of contract claim the applicant was seeking to bring, and that any such claim was anyway out of time. They did not understand the claims under the Regulations of 2000 and 2002, but they too were out of time. No facts were advanced that could sustain a victimisation claim. The wasted costs claim 'is not a head of claim and no details have been provided' and the College asserted that any claim for costs would be defended in any event.
10. The applicant provided some further particulars of his proposed amendments on 14 March 2011. I do not propose to attempt to summarise that document to any extent, which again is not easy to understand. It particularises the breach of contract claims, which are in respect of the years 1993 to 2004. It asserts that the College was liable for sex discrimination by rejecting his claim, such rejection having been notified by Mills & Reeve LLP by their email to the ET of 25 August 2010 and repeated at a CMD on 12 October 2010: the proposition was, apparently, that the defence of his pension claim was an act of sex discrimination. The solicitors wrote in the email:

'We have reviewed the papers. This claim is brought on the basis that the rules of the Pension Scheme discriminated against women, because (to sum up) more women than men worked part time. This Claimant is a man, and therefore the Rules did not indirectly discriminate against him on the above basis'.

11. If there was arguably anything in the applicant's discrimination claim, the last act apparently relied upon was on 12 October 2010, or perhaps (more questionably) 17 December 2010. Paragraph 8 of the particulars asserted continuing sex discrimination, either directly or indirectly, going back to at least January 2006.
12. The application for permission to amend came before Judge Sigsworth at a pre-hearing review on 15 March 2011. By paragraph 3 of his judgment sent to the parties on 1 April 2011, and for written reasons sent to the parties on 24 May 2011, he refused the application. In his reasons, he summarised the amendment application as relating to claims to add 'new claims for breach of contract, sex discrimination, unauthorised deductions from wages, and detriment under the Part-Time Workers Regulations and/or the Fixed-Term Employees Regulations'.
13. Judge Sigsworth accepted the College's arguments that it would be unjust to permit the amendments. As for the breach of contract and deductions from wages claims, they were time-barred and were similar to claims that the applicant had previously submitted to the ET and which had been decided in July 2004, in which the applicant recovered unpaid wages. The claims could and should have been included in those proceedings. Moreover, relevant witnesses for the College no longer worked for it and the College did not have the relevant records going back to 1995. There could be no claim for sex discrimination when the claim should be formulated as an equal pay claim. There was no cause of action for the College's alleged misconduct in the proceedings: the applicant's remedy was to apply for an order for costs, or a preparation time order. The judge said that the statutory regulations relied upon came into force in 2000 and 2002, many years after the presentation of the original claim, and covered only a small period of his proposed claim, and insofar as such claims were concerned with NI contributions and the like, they should have been brought in the other tribunal proceedings decided in 2004. The judge concluded by saying that he accepted the College's arguments:

'The [applicant's] claim was originally pleaded in 1994 and it concerns his status as a part-time worker and his rights of access to the teachers' pension scheme. It is not appropriate, 16 years after the original claim was made, to attempt to add in a raft of wholly new allegations, for all the reasons set out by [the College]. The application to amend is refused.'

14. The judge referred to Selkent Bus Company Ltd v. Moore [1996] ICR 836, which identifies the discretionary considerations applicable in amendment applications to an employment tribunal. In particular, it requires tribunal judges to consider amendments to add new claims by having regard to whether or not they were brought in time.
15. The applicant sought to appeal against that refusal to the EAT. As Judge Sigsworth's decision was a case management decision of a discretionary nature, it is unsurprising that his proposed appeal was refused on the paper sift as having no reasonable prospect of success. The applicant would not, however, accept that and so exercised his right under rule 3(10) of the Employment Appeal Tribunal Rules 1993, as amended, to have an oral hearing at which he hoped to persuade a judge of the EAT that he had a properly arguable case that Judge Sigsworth had been in legal error in refusing to allow the amendments.
16. That hearing came before Judge Richardson. The applicant had the fortune to be represented at it under the ELAAS scheme by Ms Laura Prince, a barrister experienced in employment law. I have a copy of her skeleton argument. The hearing was devoted not just to this matter but also to others. The relevant part of the skeleton argument is in paragraphs 15 to 21. Her first main point was that the ET failed to have regard to the special circumstances of the applicant's case, which was an equal pay case and she referred to paragraph 118 of the judgment in Potter v. North Cumbria Acute Hospitals NHS Trust [2009] IRLR 900, in which Slade J had said that:

'Whilst we recognise the need for finality in pleadings particularly in the light of the protracted history of the Potter cases, the particular complexities of equal pay litigation also are to be taken into account in the exercise of discretion to allow amendments to change comparators.'

That may be so, but it was of no relevance in relation to the applicant's proposed amendments, which, as at 15 March 2011 when Judge Sigsworth considered the application, were to introduce claims almost all of which were time-barred. The only ones that might arguably be said not to have been were the victimisation and sex discrimination claims.

17. Ms Prince's skeleton submitted further that the applicant's case was anyway an exceptional one in that it had been going on for 16 years. Whilst the College asserted prejudice, the ET had not taken account of the fact that it was the College that had sought the stay, not the applicant. Moreover, the College did not serve its ET3 until after the stay was lifted, in November 2010. Ms Prince submitted that it was therefore unfair for the ET to use the 16-year delay against the applicant.
18. The proposed amendments included claims against the College for its conduct of the proceedings. The ET had held that the appropriate way to process such a complaint was for the applicant to apply for a costs order or a preparation time order, and that there was no separate cause of action based on the alleged misconduct of litigation. Ms Prince argued that that overlooked that the applicant's complaint was that the College had denied him a settlement on the grounds that he was a man, as it had confirmed in writing on 25 August 2010 and orally at a telephone Case Management Discussion on 12 October 2010. To refuse to offer male claimants the same settlement offered to female claims was an act of sex discrimination.
19. Judge Richardson declined to accept that the applicant had any real prospect of success on an appeal to the EAT against the refusal to allow the amendments. He said Judge Sigsworth had not lost sight of the fact that this was a part-time worker's pension case, with all the complexity that such litigation involves. What, however, Judge Sigsworth had not been prepared to do was to allow the amendment of a straightforward, although long-delayed, part-time worker's pension case by the addition of a whole lot of additional claims, many dating back for a substantial period. Judge Richardson considered that, applying Selkent Bus Co Ltd v. Moore [1996] ICR 836, Judge Sigsworth was entitled to reach that conclusion.
20. Judge Richardson continued:

'16. On the question of sex discrimination, it seems to me that the Claimant's application to amend proceeded on a basic misunderstanding about discrimination law. It does not follow that delay in dealing with the Claimant's claim, even a refusal to accept his claim, is by its very nature unlawful discrimination or victimisation. Whether the College's actions amount to direct discrimination or victimisation depends on why they were done. They would be direct discrimination or victimisation only if done on prohibited grounds – because of the Claimant's sex or because he had done acts protected by the law of victimisation. In this case, it is plain beyond peradventure why the Claimant's case was not settled over many years; it was one of a large number of cases that depended upon very difficult questions of law. These cases were not settled while those difficult questions were resolved. It does not follow that the employers who resisted the claims were guilty of unlawful discrimination or victimisation.

17. The high point of the Claimant's case would appear to be the letter dated 25 August 2010. The point that underlies that letter had in fact, as it seems to me, plainly been resolved by Hartlepool Borough Council v. Llewellyn [2009] IRLR 796, a case to which Ms Prince correctly and helpfully referred me. But taking a bad point does not mean that the point is taken on the grounds of the Claimant's sex any more than Mr Bowers QC and Mr Sweeney in the Llewellyn case were guilty of sex discrimination for taking it.

18. In my judgment, therefore, the Employment Judge did not err in law in refusing permission to amend. He applied the correct principles, derived from Moore, and reached an entirely tenable conclusion. There is an appeal to the Appeal Tribunal only on a question of law, and I see no error of law in the Employment Judge's refusal of permission to amend. I would say, further, that he was, to my mind, plainly and unarguably right not to complicate the part-time worker's pension case with different complaints that, if they were to be litigated at all, should be litigated independently.'

21. In support of his criticism of the adverse rulings in the tribunals below, the applicant produced a lengthy written argument, which he supplemented orally at a 45-minute hearing, although I have to say, and with respect to the applicant, that I found neither his written nor his oral arguments to be relevantly helpful. Both focussed on what appear to me to be irrelevant assertions and considerations. For example, in paragraph 1.2 of the skeleton argument the applicant criticised Judge Richardson for not mentioning his retirement from the College in 1993 and his election to re-join it as a part-time lecturer. The skeleton argument does not identify its supposed relevance in the context of the amendment application, and that is probably because it has none. Another unhelpful comment in the same paragraph was that 'It is submitted that the claimant's complaints were not a "raft" of new complaints, they are genuine complaints which also relate to procedural irregularities and the breach of the Human Rights Act'. I assume the complaints were 'genuine', in the sense that they were raised in good faith. But they were certainly new complaints; they could fairly be described as a 'raft' of complaints, one meaning of which is a large collection; whatever 'procedural irregularities' are said to be in point, or to justify the late making of the claims, is incomprehensibly obscure; and the application to make the amendments in no manner engaged the Human Rights Act.
22. I do not propose to refer further to the applicant's submissions, which did not appear to me to come even close to dealing with why it is said that the tribunals below committed any arguable error of law. One point which did, however, emerge from the applicant's oral submissions was that he was, by 2004, fully aware of the potential for making the money claims in respect of the prior period going back to 1993. He does not, however, seem to recognise that to wait another six years before seeking to level such claims against the College reflected a delay of an astonishing dimension.
23. So far as concerns the money claims, the suggestion that it is arguable that Judge Sigsworth was in legal error in declining to allow the 1995 IT1 to be amended to allow them is an impossible one, and obviously so. They were, by the time of the application to amend in December 2010, all well and truly time-barred, a factor that Judge Sigsworth was required by the Selkent considerations to take into account in deciding whether to permit the amendments. If to have allowed the amendments would have been to treat them as if made when the original claim form was presented, so preventing the College from raising a time-bar defence, it is obvious that to have allowed them would have been to inflict an obvious injustice on the College, a course that no employment judge could reasonably have adopted. Equally, if to have allowed the amendments would have left it open to the College to plead what would have been an unanswerable time-bar defence to the claims, their allowing would have achieved nothing but a futile waste of costs, and so would equally have been a wrong exercise of the judge's discretion.
24. It is therefore in my view obvious that there was no arguable error of law in refusing the amendments in relation to time-barred money claims in respect of which the applicant had known the relevant facts since 2004. It is of course the case that the applicant's original claim to the ET was stayed until 2010. If, however, he considered that the existence of that stay entitled him to do nothing in relation to his proposed money claims after he became aware of them in 2004, in the expectation that, when eventually the stay was lifted he could then tack them by amendment on to his existing claim, he was seriously mistaken. He could and should instead have issued separate proceedings making such claims (although, in addition to any time-bar point that would already have been available in respect of the earlier claims, they might also, at least in part, have been met with the assertion that it was an abuse of the process to raise them, on the ground that they could and should have been raised in the applicant's tribunal proceedings that had been decided in July 2004).
25. As for suggested victimisation claims, I have said that I presume that the protected act was the making of the original claim, but I can identify no alleged acts of victimisation apart from those upon which the alleged sex discrimination is based. I am prepared to assume that it is arguable that these claims were in time when the application for the amendments was made. Both tribunals below, however, took the view, albeit for different reasons, that the claims had no reasonable prospect of success. In my view there is no real prospect of the applicant demonstrating otherwise on an appeal. The suggestion that the solicitors' email explaining why the College did not accept the applicant's claim amounted to sex discrimination is another impossible proposition.
26. The judgment that Judge Sigsworth made in refusing to allow the amendments was one that plainly fell within the broad ambit of his discretion and so was one that he clearly entitled to make. The proposed amendments were not directed at clarifying the existing claim, with a view to identifying the real issue between the parties. Amendments of that nature are commonly, if not invariably, allowed, although there will be circumstances when they will not be, for example if the application is made late in the proceedings and to allow the amendment would cause real injustice to the other party. The applicant's amendment application was, however, not of that nature, or anything like it. It was to add to an existing claim many separate and new causes of action, being claims which had only a remote relationship to the existing claim. The applicant had no right to have any of his amendments allowed. Whether to allow or to refuse them was a matter for the discretion of the judge; and his refusal to allow them cannot be said to have been an error of law. Judge Richardson correctly recognised that there was no such error. Nor was there any arguable error of law in his refusal to allow the applicant a full appeal on the issue before the EAT. That was because any such appeal was bound to fail.
27. This was also the view of Elias LJ, a former President of the EAT, who said in his reasons:

'1. The decision of [Judge Sigsworth] … to refuse to allow [the amendments] was plainly a decision he could properly reach. The application was made many years after the original claims had been lodged. There was potential prejudice to the defendants, and there was no reason why the claims could not have been pursued much earlier. The EAT held that this was well within the discretion of [Judge Sigsworth]. I entirely agree. Indeed it would have been difficult for him to exercise his discretion in the applicant's favour, in my view.

2. I also agree with the EAT that it is a misconception to believe that the refusal to accept a claim is of itself an act of unlawful discrimination or victimisation. …'

28. I entirely agree with Elias LJ. The applicant also has no right to appeal to the Court of Appeal. In a case of this nature, in which the decision under challenge was a discretionary case management decision made by a judge who has directed himself by reference to the correct principles, has taken the correct considerations into account and whose decision falls within the ambit of discretion open to him, the Court of Appeal will not interfere (see Civil Procedure, 2013, Volume 1, paragraph 52.3.9); and in deciding whether to give permission, I have to take those considerations into account. The applicant has, in effect, already had one appellate challenge to Judge Sigsworth's decision, by his application before Judge Richardson, a very experienced judge of the EAT. There is no justification for any further appellate challenge to that decision to the Court of Appeal, which would have no real prospect of success.
29. I therefore refuse the applicant permission to appeal.