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You are here: BAILII >> Databases >> Fair Employment Tribunal Northern Ireland Decisions >> Burns v Royal Mail Group Limite [2017] NIIT 00070_16FET (17 May 2017)
URL: http://www.bailii.org/nie/cases/NIFET/2017/00070_16FET.html
Cite as: [2017] NIIT 70_16FET, [2017] NIIT 00070_16FET
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FAIR EMPLOYMENT TRIBUNAL
CASE REFS: 70/16 FET
1855/16
CLAIMANT: Peter Burns
RESPONDENTS: 1. Royal Mail Group Limited
2. Michael Reynolds
DECISION ON A PRE-HEARING REVIEW
The decision of the Tribunal is as follows:-
(i) the claimant's application for leave to amend his claim to include a claim of direct disability discrimination by the respondents and each of them; and further his claim for failure by the first respondent to comply with the duty to make reasonable adjustments, pursuant to the Disability Discrimination Act 1995, as amended, in accordance with the proposed draft amendments lodged with the Office of the Industrial Tribunals in an e-mail, dated 20 March 2017, is granted; and the said claim is so amended;
(ii) the respondents, and each of them, if they wish to present an amended response to the claimant's claim, so amended, are ordered to do so within 28 days from the date this decision is issued to the parties; and
(iii) as a consequence of the Tribunal's said decision, the Tribunal has made various case-management directions/orders, as set out at Paragraph 3.9 of this decision, including the adjournment of the substantive hearing, due to commence on 22 May 2017.
Constitution of Tribunal:
Employment Judge (sitting alone): Employment Judge Drennan QC
Appearances:
The claimant was represented by Mr B Mulqueen, Barrister-at-Law, instructed by O'Hare, Solicitors.
The respondents were represented by Ms L Rankin, Solicitor, of Carson McDowell LLP, Solicitors.
Reasons
1.1 The claimant presented a claim of unfair dismissal and/or unlawful deduction of wages (arrears of pay/holiday pay), pursuant to the Employment Rights (Northern Ireland) Order 1996 and/or a claim of discrimination on the ground of religious belief and/or political opinion, pursuant to the Fair Employment and Treatment (Northern Ireland) Order 1998 to the Office of the Tribunals on 16 August 2016. The respondents presented a response to the Office of the Tribunals on 4 October 2016, denying liability for the claimant's said claims.
1.2 The claimant gave oral evidence. After considering the said oral evidence and the oral submissions of the claimant's representative and the written and oral submissions of the respondents' representative, together with the documents to which I was referred from the 'trial bundle', I made the following findings of fact, as set out in the following sub-paragraphs.
1.3 This pre-hearing review was arranged, as set out in the Notice of Hearing dated 31 March 2017, to consider:-
"Whether the Tribunal should make an order granting leave to the claimant to amend his claim to the Tribunal in the terms of the claimant's application, as stated in the claimant's representative's e-mail dated 20 th of March 2017."
1.4 Following receipt of the response of the respondents, denying liability for the claimant's claim on 4 October 2016, the Tribunal, in accordance with its normal case-management procedures, arranged a Case Management Discussion, which was listed for Wednesday 23 November 2016. However, by an e-mail dated 16 November 2016, the claimant's representative, Mr Magill of O'Hare's Solicitor, wrote to the Office of the Tribunals, with copy to the respondents' representative, as follows:-
" ...
I refer to the above and to the CMD listed for Wednesday 23 rd of November.
I note from the ET1 I have been included as the representative for the claimant but only recently have received instructions from the union. I have retained Mr Mulqueen and would like to postpone the CMD to arrange consultation with the claimant and prepare legal/factual issues for the Tribunal.
... ."
In advance of the re-scheduled Case Management Discussion on 5 January 2017, the claimant's solicitor and the respondents' solicitor liaised with regard to the legal and factual issues. The final legal and factual issues were subsequently agreed and lodged with the Office of the Tribunals on or about 3 January 2017. These issues referred to the claimant's claim of unfair dismissal and/or discrimination and/or harassment on the grounds of his religious belief and/or political opinion and/or a claim for unlawful deduction of wages. During the Case Management Discussion on 5 January 2017, the claimant's solicitor, who appeared without counsel, confirmed that the claimant was also pursuing a personal injury claim, as part of his discrimination claim. However, the claimant's solicitor, at that hearing, did not make any reference to the possibility that there would be an application to amend the claimant's claim form. Indeed, the claimant's solicitor, as set out in the Record of Proceedings of that Case Management Discussion, confirmed that there were no preliminary issues requiring a separate pre-hearing review. At the Case Management Discussion on 5 January 2017, as set out in the Record of Proceedings dated 9 January 2017, the Tribunal, in light of the said statement of legal and factual issues, made relevant case-management directions/orders to enable the substantive hearing to be listed from 22 - 26 May 2017.
1.5 By letter dated 7 March 2017, the claimant's solicitor wrote to the respondents' solicitor stating:-
"We refer to the above matter and would be grateful if the respondent will consent to an application to amend our ET1 to include a claim for disability discrimination."
By e-mail dated 7 March 2017, the respondents' solicitor, replied stating that:-
"We will be strenuously resisting any application at this very late stage."
[Tribunal's emphasis]
By e-mail dated 20 March 2017 to the Office of the Tribunals, which was copied to the respondents' solicitor, the claimant's solicitor wrote:-
"Further to the correspondence I wish to apply to amend the claimant's ET1 as follows:
'Further, and/or in the alternative, I believe that the treatment afforded to me during the course of my employment, and when dismissing me from employment, amounted to less favourable treatment on the grounds of my disability. I further believe that my employer failed to make reasonable adjustments for me during the course of my employment and when deciding to dismiss me from employment.
I confirm this e-mail has been copied to my colleague, Ms Rankin. I confirm she has previously objected to the proposed application."
The application to amend was made five days after the claimant's witness statement was due to be served, in accordance with orders made at the Case Management Discussion on 5 January 2017.
1.6 As a consequence of the above application, this pre-hearing review was arranged, as set out in the Notice of Hearing dated 31 March 2017, to consider:-
"Whether the Tribunal should make an order granting leave to the claimant to amend his claim to the Tribunal in the terms of the claimant's application, as stated in the claimant's representative's e-mail dated 20 th of March 2017."
1.7 Throughout the period of the dismissal procedures, which culminated in the dismissal of the claimant on or about 13 June 2016, on ill-health grounds - having been absent from work due to anxiety and stress from on or around March 2015 until on or about 13 June 2016, the claimant was represented and/or assisted by representatives of his trade union. Following the termination of his employment on 13 June 2016 the claimant presented his claim, within time, to the Office of the Tribunals on or about 16 August 2016, as referred to previously. It is correct to note that under Paragraphs 3.1 - 3.2 of his claim form, in relation to the box headed 'your representative' - he stated ' awaiting response from C.W.U to support/ Communication Workers Union'. The claimant, at the time of presenting his claim to the Tribunal, was therefore not represented by the CWU; but I am satisfied that, at or around the time when he made his application to the Tribunal, he was seeking assistance/representation from the CWU and, following conversations with a retired trade union official of that union, he had filled in the necessary forms to seek such legal assistance from the trade union and was waiting relevant approval/ authorisation from the trade union. I am satisfied that such approval/authorisation was not received until in or about late October 2016/early November 2016, which resulted in Mr Magill, of O'Hare's Solicitors, being appointed by the trade union to represent the claimant, as set out in his e-mail dated 16 November 2016, as referred to above. However, I am also satisfied that the claimant, prior to the approval/authorisation for Mr Magill to represent the claimant in these Tribunal proceedings, that the claimant in or about late June 2016, following his dismissal, had also consulted with Mr Magill in relation to the possibility of bringing a personal injury claim in the High Court arising out of the matters, which are also the subject-matter of these Tribunal proceedings.
Mr Magill had, in connection with the potential personal injury claim, arranged for the claimant to be examined by a consultant psychiatrist on or about 28 September 2016 and received a report on or about 18 October 2016. This report dealt with the claimant's claims of depression, anxiety, stress, which are the disabilities relied on by the claimant, in relation to his application to include a claim pursuant to the Disability Discrimination Act 1995, the subject-matter of this application for amendment. This report, dated 18 October 2016, was not disclosed by Mr Magill to the respondents' solicitor at that time and indeed was only recently provided to the respondents' solicitor.
1.8 The claimant, in the course of his evidence, maintained that, following the termination of his employment, as referred to above, he sought legal representation through his trade union and it was not until in or about November 2016, as set out previously, that the union authorised such legal assistance, using the services of Mr Magill. In addition, he had instructed Mr Magill in relation to the possibility of bringing of a personal injury claim in the High Court at the end of June 2016 and, on the advice Mr Magill, he had been examined by a consultant psychiatrist in September 2016 and a report had been obtained in October 2016 as referred to above. He strongly contended, in essence, following the termination of his employment, he had left his Tribunal proceedings in the hands of his trade union and thereafter, following their authorisation, in the hands of his solicitor, Mr Magill, who had, as he set out in his e-mail dated 16 November 2016, instructed Mr Mulqueen in relation to this matter.
1.9 I am satisfied that, if this amendment is to be granted, that the respondents have not suffered any 'real and/or forensic prejudice', other than the fact that the additional claims would require to be defended by the respondents. I note that at this stage, the respondents' representative does not accept that, at the relevant and material time, the claimant's alleged disabilities, as referred to above, are disabilities which would make the claimant a disabled person for the purposes of the Disability Discrimination Act 1995. In this context, however, I think it is relevant to note that it is apparent from the bundle of documents prepared, for the purposes of this hearing by the claimant's representative, there are a number of reports from the first respondent's Occupational Health Adviser, which will clearly be of considerable assistance in determining this issue and, in particular, what further or other reports, if any, are required to be obtained, if the amendment is granted, in determining whether the claimant was a disabled person at the relevant time. I appreciate, of course, that the reports which were obtained by the first respondent, for the purposes of the relevant dismissal procedures, were not focused on a claim of disability discrimination and/or a claim for failure to comply with reasonable adjustments, pursuant to the 1995 Act; although, in some reports received from the Occupational Health Advisers in or about September 2016, it would appear that the respondents' advisers were having regard to consideration of whether or not the claimant was a disabled person, for the purposes of the 1995 Act. Of course, it is not for me, at this hearing, to determine any such issue. However, as set out later in this decision, the fact that such reports have been obtained, throughout the dismissal process, has relevance to the issue of what further additional evidence, if any, will require to be called by the parties, if the amendment is granted.
1.10 Other than the claimant, no other oral evidence was called by the claimant. The Tribunal was therefore not provided with any evidence to account for the delay in making this application from in or about November 2016, when Mr Magill was authorised to act on behalf of the claimant, by his trade union, until he indicated on or about 7 March 2017 to the respondents' representative, that he intended to make this application and, in particular, 20 March 2017, when he set out the application, the subject-matter of this pre-hearing review. During the course of submissions, the claimant's counsel, Mr Mulqueen, acknowledged that there had been some delay but was unable to provide an y good reason for such delay over the said period. I understand that consultation with Mr Mulqueen as counsel did not take place, despite the terms of the e-mail dated 16 November 2016, until on or about 27 January 2017, following which counsel gave advice; which I was told resulted in this application for amendment. The delay in arranging the consultation was unexplained. It must also be noted that, at the Case Management Discussion, on 5 January 2017, no reference was made by the solicitor for the claimant, Mr Magill, a consultation was still to be arranged with counsel, despite the terms of the said e-mail. Both the respondents' representative, and the Tribunal, were therefore led to believe that final orders had been made at the Case Management Discussion on 5 January 2017 and, in particular, in light of the agreed statement of issues, the issues had also been identified in their final form. There was no suggestion, however vague, there might require to be some changes and, in particular, following consultation with counsel, which still had to be arranged.
2.1 In determining the issues whether the Tribunal should make an order for leave to amend the claimant's claim, in accordance with the terms of the claimant's application, as stated in the claimant's representative's e-mail dated 20 March 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 ...."
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 (see later).
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.
[Tribunal's emphasis]
18. In summary, a system of justice involves more than allowing parties at any time to raise the case which best seems to suit the moment from their perspective. It requires each party to know in essence what the other is saying, so they can properly meet it; so that they can tell if a Tribunal may have lost jurisdiction on time grounds; so that the costs incurred can be kept to those which are proportionate; so that the time needed for a case, and the expenditure which goes hand in hand with it, can be provided for both by the parties and by the Tribunal itself, and enable care to be taken that any one case does not deprive others of their fair share of the resources of the system. It should provide for focus on the central issues. That is why there is a system of claim and response, and why an employment Tribunal should take very great care not to be diverted into thinking that the essential case is to be found elsewhere than in the pleadings'.
40. Where an ET is concerned with an application to amend ... it is exercising a judicial discretion; guidance in respect of which was laid down by Mummery J (as he then was) in Selkent Bus Co Ltd v Moore [1996] ICR 836 EAT. Pursuant to that guidance, where the amendment raises a new claim, the ET must have regard to the relevant time limits and, if the claim is out of time, to consider whether the time should be extended under the appropriate statutory provision; here, reasonable practicability. The ET would also need to have regard to the timing and manner of the application, although delay in itself should not be the sole reason for refusing such an application. The ET will, however, want to consider why it was not made earlier and why it is now being made. For example, whether it was because of the discovery of new facts or new information arising from disclosure.
...
57. Going further, and considering prejudice more generally, the ET was, I find, entitled to take into account the broader procedural history: the Claimant's clarification before Employment Judge ... that he was not making any other claims; his failure to mention the potential whistle blowing complaints at any earlier stage. The Claimant says that overall there is no real prejudice to the Respondent; it will be open to him to raise these factual matters in his unfair dismissal claim in any event (all the more so if the bonus avoidance case is permitted to be run on the unfair dismissal claim). That, however, is only part of the picture. First, raising matters as background evidential points is a different thing to pursuing a separate head of claim. In any event, I am not persuaded that the same points would be run. That is certainly not obvious regarding the relocation complaint. Even as regards the bonus payment, additional issues arise relating to whether there were any actual disclosures on the Claimant's part. Those questions - which raise both new legal and evidential issues - would need to be explored, which might well add to the time and cost of the proceedings and which would be all the more unfair for the Respondent to have to deal with after such a delay." [Tribunal's emphasis]
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."
In British Gas Services Ltd v Basra [2014] UKEAT/0194/14, HH Judge Serota QC refused, on appeal, on the particular facts of the case, an amendment, to include a new claim of victimisation and two new claims of disability discrimination. The 'original' claim was disability discrimination. The time for bringing the new claim had long expired, the proceedings had already been adjourned once and if the amendments were allowed there would have required to be a further adjournment, the necessity for the respondent to call more witnesses, thus extending the hearing.
In the judgment the EAT stated:-
"46. ... In exercising the discretion to grant an amendment, 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. A significant matter will be whether the applicant seeks to add a new claim especially one that is out of time, in which greater scrutiny and reluctance to agree may be applied rather than allowing an amendment which arises out of facts already pleaded. When considering an application for leave to amend a claim, the Employment Tribunal is required to balance the injustice and hardship of allowing the amendment against the injustice and hardship of refusing. That involves it considering at least the nature and the terms of the amendment proposed, the applicability of any time limits and the timing and the manner of the application. Although delay itself is not a ground for refusing an amendment ...
47. When an application for amendment is made close to a hearing date, it will usually call for an explanation as to why it is being made then and was not made earlier, particularly when the new facts alleged must have been within the knowledge of the applicant at the time he presented his originating application. This does not mean that an amendment raising issues out of time is to be treated in the same way an application to extend time for presenting an application either on just and equitable grounds or on the grounds of reasonable practicability ... ."
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 delay in issue. To know how long the delay has been for limitation purposes, however, one has to know when time began to run.
As seen in Outokumpu Stainless Ltd v Law [UKEAT/0199/07], Beatson J stated:-
" ... It is necessary for a Tribunal considering the exercise of its discretion to ascertain when the time-limit expires in order for it to approach the exercise of discretion properly and lawfully. If it does not it cannot consider the length of the delay and it cannot properly consider whether it is just and equitable to allow the claim to proceed."
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 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].
2.24 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.
2.25 In the case of Evershed v New Star Asset Management [2009] UKEAT/0249/09, Underhill J, as he then was, said, which was not challenged in the context of the subsequent appeal, to which reference has been made previously:-
"33 ... It is not the business of the Tribunals to punish parties (or their advisers) for their errors. In very many, perhaps most, cases where permission is given to amend a pleading, the party in question could if he had been sufficiently careful got it right first time round."
Evershed was a case in which application for leave to amend was made. However, similar principles have been applied in cases where the issue has arisen whether the time should be extended to allow a discrimination claim to be heard out of time, on just and equitable grounds, where the fault of the claimant is a relevant factor to be considered but the claimant was not held to be culpable for what was properly regarded to be the fault of his or her legal advisers.
In the case of Virdi v Commissioner of Police of the Metropolis and Another [2006] UKEAT/0373/06, a case involving an application for extension of time on just and equitable grounds in a discrimination case, Elias P, as he then was, stated:-
"35. It is well established, and common ground, that the claimant cannot be held responsible for the failings of his solicitors: see Steeds v Perverill Management Services Ltd [2001] EWCA Civ 419 Paragraph 27. For that reason it is not legitimate for a Court to refuse to extend time merely on the basis that the solicitor has been negligent and that the claimant will have a legal action against the solicitor. Mr Sethi went so far as to submit that the existence of a potential claim against a legal adviser was a factor which should not be taken into account at all. He contends that this was the view of the EAT in Chohan v Derby Law Centre [2004] IRLR 685 .
In Chohan, HH Judge J McMullen QC, in setting out the legal principles to be applied in relation to the exercise of discretion whether time should be extended on just and equitable grounds stated:-
"16. A failure by a legal adviser to enter proceedings in time should not be visited upon the claimant for otherwise the defendant would be in receipt of windfall : Steeds v Perverill Management Services Ltd [2001] EWCA Civ 419, Paragraphs 38 - 40."
Steeds was a personal injury claim dealing with issues of limitation, but again the principles, as set out therein have been applied in Virdi and Chohan; and in this context, it must be noted that the ' Keeble Guidance', referred to previously, is drawn from the checklist of factors in Section 33 of the Limitation Act 1990, as applied in the Steeds decision of the Court of Appeal.
2.26 Of course, although the above legal authorities are of great assistance for a Tribunal in determining whether to make an Order for leave to amend a claim and/or, where relevant, to extend time, on just and equitable grounds, in the case of discrimination, each case must be determined on its own facts and the Tribunal's consideration of those facts, in the exercise of its discretion when determining the relevant application, the subject-matter of the proceedings.
3.1 In her submissions, the respondents' representative accepted, although the proposed amendments added new causes of action these were claims which were linked to, or arose out of the same facts as the original claim and the claimant was seeking to 're-label' facts already pleaded. It appeared to me she was accepting the proposed amendments fell into the second category set out in Harvey and therefore time was not an issue. The claimant's representative acknowledged that, if the Tribunal did not accept the proposed amendments fell into the second category but rather fell into the third category, set out in Harvey, the said claims were out of time and issues of extension of time 'on just and equitable' grounds, would be an issue, which would required to be considered for the purposes of this application.
3.2 As I have previously indicated, the proposed amended claims, in the absence of hearing evidence relevant to the merits, are not 'hopeless claims' (as suggested in Woodhouse). Indeed, if what is stated in the e-mail of 20 March 2017, had been on the claim form, originally presented to the Tribunal, I am satisfied the said claims would have been accepted by the Tribunal, albeit I have no doubt a detailed Notice for Additional Information/Discovery and Inspection would have been raised by the respondents. The proposed amendments are not detailed and, in the absence of such detail, it is very difficult for a Tribunal to determine, at this pre-hearing review, noting it is for the claimant to persuade the Tribunal to exercise its discretion, whether these amendments fall into Category 2 or 3, as set out in Harvey. Whatever decision is taken by the Tribunal on this issue has consequences, not least in relation to issues of time. There is no doubt the disability claim itself will give rise to additional factual issues in relation to whether the claimant is a disabled person under the Disability Discrimination Act 1995. Given the termination of the claimant's employment was on ill-health grounds, I think this issue, in itself, probably comes within the mantra of re-labelling - albeit, at this stage, the respondents have not made any concession on this issue. In this context, the Occupational Health reports, referred to previously, are of some relevance. In relation to direct disability discrimination, the claimant's representative suggested, in his submissions, that the issues of less favourable treatment, for the purposes of religious/political opinion discrimination, would be relied on for the purposes of direct disability discrimination; thus giving support to the contention that the proposed amendment falls within Category 2, as set out in Harvey. In relation to the proposed amended claim of failure to comply with the duty to make reasonable adjustments, I think the issue is more problematic, in the absence of detailed amendments in relation to this particular claim. Indeed, in the course of discussion, the respondents' representative raised concerns, depending on what was actually relied on in respect of this claim, whether new/additional facts would require to be determined. Regardless of the issues about determining whether a claim falls into Category 2 or 3, even if it is the former, I have no doubt that, when making an application for an amendment, as much detail as possible should be provided at the time of the application. This is necessary, even if such detail would not have been given in an original claim form and Notices for Additional Information would have been required following acceptance. The granting of leave to amend is an exercise of discretion and a relevant consideration in that exercise, whether under Category 2 or 3, is the extent further evidence will be required and/or and the hearing will require to be listed for a longer period. If a party does not give sufficient detail in the application for amendment it must run the risk that the Tribunal, in the absence of setting out the amendment in sufficient detail, could draw the wrong conclusions on such matters and refuse the application.
3.3 Although, I had some misgivings whether these proposed amendments were in fact a re-labelling exercise and fell within Category 2 (see similar sentiments by Underhill LJ in Abercrombie Paragraph 48), I have concluded these proposed amendments do fall within Category 2 and therefore time is not in issue. In this context I note also the submissions of the respondents' representative, referred to above. However, even if I am wrong, I am satisfied, if these were Category 3 amendments and it was necessary to consider whether time should be extended on 'just and equitable' grounds, that I would have reached the same conclusion, as set out later in this decision. As Ali and other authorities show, the test in Selkent is very similar to the test for extension on 'just and equitable' grounds. Also, increasingly, as seen in the authorities referred to, since no one factor is determinative of the matter and all factors have to be considered on a multi-factorial basis, the differences between Category 2 and 3 are now of less significance, in the final analysis, following such consideration.
3.4 I have no doubt, applying the principles set out in the previous paragraphs, the subject-matter of this application are major amendments. The application requires, if allowed, the claimant to include two further claims, direct disability discrimination and failure by the first respondent to comply with the duty to make reasonable adjustments.
On the basis of the limited detail relating to the proposed amendments, presently before me, I have come to the conclusion there will be some additional evidence, which will probably lengthen the hearing; but I am not persuaded, albeit with some hesitation, in the absence of any such detail, it will greatly lengthen the hearing. An increase of even one/two days' hearing are matters which cannot be ignored and which must be taken into account when determining this application, albeit, in themselves, are not determinative factors. There is no real or forensic prejudice to the respondents. If additional witnesses are required to be called by the respondents, I understand they are available. Given the facts to be determined in the original claim of discrimination under the 1998 Order but also the ill-health retirement issues, which are already required to be considered in relation to his unfair dismissal claim, I think there will be some limited increase in the length of hearing/number of additional witnesses/submissions, etc but, on balance, are not likely to be of great significance.
3.5 In this matter, my major concern related to the length of the delay in bringing this application and, in particular, in circumstances where, if this amendment is granted, the substantive hearing will require to be adjourned. Any such adjournment is a matter of regret and a very relevant factor, as set out in the authorities referred to, especially where such an application is brought 'late in the day'. I have considered very carefully the evidence of the claimant. I am satisfied he took steps, within the limitation period, to seek authority from his trade union to advise and represent him and referred to same in his claim form. Although his trade union did not give relevant authority to instruct his present solicitors until in or about late October/early November, it is also of relevance to note he consulted the same solicitor in August 2016 in relation to a personal injury claim in the High Court against the first respondent, arising out of facts, which are also the subject of these proceedings. Indeed this solicitor in September 2016 instructed a consultant psychiatrist to provide a report. Other than the claimant, no one else gave evidence. In particular, the claimant's said solicitor did not give any evidence. I therefore had no direct evidence from him to account for the subsequent delays, from November 2016, when he was given authority to act in these proceedings. Given his earlier involvement in the personal injury claim, in the absence of any other evidence, it appears to me he would already have had considerable knowledge of the matter, in November 2016; but yet he took no action in relation to this proposed amendment until 7 March 2017, when he initially wrote to the solicitors for the respondents, and waited until 20 March 2017 to make formal application to the Tribunal. This is in the context where the original claims had been case-managed at a Case Management Discussion on 5 January 2017, where interlocutory orders were made, issues identified and the case listed for hearing but no mention was made by him whatsoever of these proposed amendments or even the possibility of same. It must also be also noted an earlier Case Management Discussion had been postponed to facilitate consultation with counsel. Counsel did not attend that Case Management Discussion. The respondents were represented by the said solicitor. He did not indicate the proposed consultation had not taken place. The Tribunal was given, at this hearing, which was not attended by the solicitor, no satisfactory or good reason why the consultation with counsel did not take place until 27 January 2017, after which an opinion was given, which led ultimately, albeit with some further delay, to this application, the subject-matter of this pre-hearing review.
3.6 I have come to the conclusion that the delay in this matter is not that of the claimant. It is that of his legal representatives. In essence, the claimant left, at the relevant and material times, this matter in the hands of his legal representatives, having first consulted his trade union, during the initial period of limitation, in relation to the Tribunal proceedings. Indeed, his legal representatives, in these proceedings, had been instructed by him in an allied matter before formally being instructed by his trade union in these proceedings. All of this has led to the late application for leave to amend, with the consequence, if granted, the substantive hearing must be adjourned. Leaving aside these issues of delay, I had come to the conclusion, carrying out the balancing exercise, referred to in Selkent, after taking into account all of my conclusions, as set out previously, that the greater hardship and injustice would be for the claimant if the application was refused. However, given my conclusions in relation to the delay, the reason for and the consequences of same, as a further relevant factor in carrying out the balancing exercise, I came to the conclusion, subject to what I set out below, the balance had shifted to the respondents. The issue, to be determined, in the final analysis, was whether the failures of the legal representatives, in relation to the issue of delay, should result in the failure of the application by the claimant, in circumstances where he himself was not at fault. In light of the decisions referred to previously in Virdi and Chohan but also Evershed in Paragraph 2.27 of this decision, I have come to the conclusion, not without some hesitation, the claimant should not be punished by the Tribunal for the faults/errors of his representatives in circumstances where, but for those faults/errors, he would normally have succeeded in his application for leave to amend his claim to the Tribunal.
3.7 I have therefore granted the application of the claimant giving leave to the claimant to amend his claim to the Tribunal to include a claim of direct disability discrimination by the respondents and each of them; and further a claim for failure of the first respondent to comply with the duty to make reasonable adjustments, pursuant to the Disability Discrimination Act 1995 , as amended, in accordance with the proposed draft adjustments lodged with the Office of the Industrial Tribunals in an e-mail, dated 20 March 2017; and the said claim is so amended.
3.8 The respondents, and each of them, if they wish to present an amended response to the claimant's claim, so amended, are ordered to do so within 28 days from the date this decision is issued to the parties. If either party wishes to issue any Notice for Additional Information and/or Discovery and Inspection, the Tribunal expects this to be done promptly and, in particular, to enable the interlocutory process to be concluded before the next Case Management Discussion, as referred to below.
3.9 The substantive hearing, as a consequence of granting this application is now adjourned. A further Case Management Discussion will be held in this matter on:-
10 July 2017 at 9.30 am
This hearing will be by way of Telephone Conference, subject to any application by either party and/or directions of the Tribunal requiring attendance in person. At that hearing, the substantive hearing will be re-listed and amended orders will be made, as necessary, for the timetable for any amended witness statements, lodgement of agreed amended statement of issues and other amended case-management orders in relation to bundles and date for a Progress/Review Case Management Discussion.
Employment Judge
Date and place of hearing: 2 May 2017, at Belfast
Date decision recorded in register and issued to parties: