United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	Mr Fred Edward Jnr Barrister (non-practising) of Cain & Abel Law Firm 239 Missenden Inville Road London SE17 2HX
For the Respondents	THE RESPONDENTS NEITHER BEING PRESENT NOR REPRESENTED


 


JUDGE PETER CLARK: The appellant, Mr Omilaju, commenced these proceedings by an Originating Application presented to the Stratford Employment Tribunal on 28th August 1998.

In Box 1 of that form IT1 he identified his complaints as being "racial discrimination and harassment". The respondents to the claim were his present employer, the London Borough of Waltham Forest ["the Council"] and four named employees of the Council. He has been employed since September 1992, and at the relevant time said that he held the post of Contract Management Officer/Best Value Officer.

He specified the date on which the act complained of took place as 1st June 1998.

The details of his complaint read as follows:

"11.1 On 20 January 1998 I was interviewed for the post of Contract Monitoring Officer (CMO) - Temporary Secondment and I was subsequently offered the position via a letter from Ms. Janet Macgrey - the Personnel Officer, subject to the receipt of satisfactory reference on the 6 February 1998.

In addition there was a verbal confirmation on my success at the interview by the Chairman of the Interview Panel, Mr. David Mark on the 21 January 1998.

11.2 Notwithstanding my repeater request for clarification on procurement of reference(s) and my start date in the new job both the Personnel Section and the Audit and Quality Section did not give any categorical information regarding the status of my appointment and my start date.

11.3 On the 1 June 1998 I became aware that a junior officer by the name of Ms. Lisa Wade has been promoted to the position to which I have been appointed.

11.4 I submit that Ms. Lisa Wade's promotion to that position and my denial of it were based on racial grounds.

11.5 Therefore the action of the Council amounted to Racial Discrimination within the context of the Race Relation Acts.

11.6 By denying me this position I have immensely suffered detrimentally. In terms of, amongst others:

11.6.1. By denying me of the opportunity of this position the Council has exposed me to continuing racial harassment and racial discrimination that I was encountering under my line Managers, Marilyn Chown and Mike Driscoll.

11.6.2. In denying me the opportunity to further my career within the Council which remains stunted by the hostility of my current and immediate pass line managers.

11.6.3. I have suffered emotional, psychological and medical traumas arising out of continuing exposure to racial harassment, discrimination, bullying and intimidation within my current position.

11.6.4. I suffer continuously from the feeling of an experience of entrapment by denial of opportunity to move to another section within the Council department and make immense contribution to the development of the department and the Council."

In answer to the claim each of the five respondents entered Notices of Appearance. In summary, it is contended:

(a) that the post of Contract Monitoring Officer (CMO) was deleted as a result of a restructuring exercise. Hence his appointment to that post could not be confirmed; and

(b) Ms Lisa Wade was appointed to a different, lower grade post, to that of CMO.

Consequently, the basis of his claim is disputed and the allegation of racial discrimination was denied.

By letter dated 19th November 1998 the appellant's new representative Mr Fred Edward Jnr. wrote to the tribunal, seeking leave to amend the Originating Application. The form of amendment sought was to specify, under the general head of 'Harassment', the following grounds for complaint:

"1. Victimisation on ground of Trade Union activities;

2. Victimisation on ground of Health and Safety; and

3. Victimisation under sections 2 and 4 of RRA 1976."

Those grounds were said to be in addition to the ground of racial discrimination.

Asked for their comments on that application, the respondents' solicitors replied to the tribunal on 8th December 1998, objecting to the amendment on the ground that the new allegations of victimisation were unparticularised.

A Chairman considered the application and by letter dated 14th December 1998 determined that the amendment would be allowed but only to the extent that the complaint of victimisation under the 1976 Act be added to the Originating Application, in substitution for the complaint of harassment and ordered the appellant to give particulars of that complaint by 8th January 1999. The application to add the two further complaints of victimisation, relating to trade union and health and safety activities was refused on the basis that those application did not comply with the principles set out by Mummery J in Selkent Bus Co Ltd v Moore [1996] ICR 836.

Against the refusal the appellant has appealed by a Notice dated 21st December 1998.

Victimisation

We remind ourselves of the statutory ingredients of the three complaints of victimisation which the appellant wished to add by way of amendment to his Originating Application.

(1) Trade union activities:

By s. 146 of the Trade Union and Labour Relations (Consolidation) Act 1992 ["the 1992 Act"] an employee has the right not to have action short of dismissal taken against him as an individual by his employer for the purpose of:

(a) preventing or deterring him from being or seeking to become a member of an independent trade union or penalising him for doing so;

(b) preventing or deterring him from taking part in the activities of an independent trade union at an appropriate time or penalising him for doing so; or

(c) compelling him to be or become a member of any trade union or a particular trade union or one of a number of particular trade unions.

(2) Health and Safety activities:

By s. 44 of the Employment Rights Act 1996 ["the 1996 Act"] an employee has the right not to be subjected to any detriment by any act or any deliberate failure to act by his employer done on the ground that he took part in any of the health and safety activities in the capacities mentioned in subsection (1).

(3) Ss. 2 and 4 of the 1976 Act:

It is unlawful for an employer to discriminate against an employee by treating him less favourably by reason of that employee having done a protected act, than he would treat a person who had not done the protected act by, among other things, refusing him access to opportunities for promotion or transfer.

Limitation

By ss. 147 of the 1992 Act and 48 of the 1996 Act respectively, complaints under ss. 146 of the former and s. 44 of the latter Act must be presented within three months of the act complained of, here in the Originating Application, 1st June 1998, unless the tribunal is satisfied that it was not reasonably practicable to present it before the end of that period and it was presented within such further time as was reasonable. The 1976 Act, by s. 68 provides for the same three month primary limitation period, subject to extension on the just and equitable grounds (s. 68(6)).

Amendment

The Employment Tribunal has a general discretion to grant leave to amend Originating Applications. Amendments seeking to alter an existing claim or add new claims fall into three broad categories:

(i) those which are merely designed to alter the basis of an existing claim;

(ii) those which add a new cause of action, but one which is linked to an existing claim, or arises out of the same facts as pleaded in the original claim;

(iii) those which add a wholly new claim which is not connected to the original claim at all.

The principles set out by Mummery J in the Selkent case include consideration of the following:

(1) is it a minor or substantial alteration to the original claim;

(2) if a new claim is raised, and is outside the primary limitation period, is it right to extend time under the appropriate provision; reasonable practicability or the just and equitable ground;

(3) has there been unnecessary delay in making the application for leave to amend?

Finally, in every case, the paramount consideration should be the relative injustice and hardship involved in refusing or granting an adjournment.

Cases in the first category above include cases where discrimination is alleged. An applicant who has originally claimed on the basis of direct discrimination may add a claim of indirect discrimination without raising any question of limitation. Quarcoopome v Sock Shop Holdings Ltd [1995] IRLR 353. Those in the second category include cases where a new label is put on facts already pleaded. That may cover a claim of victimisation added to a claim of racial discrimination under the 1976 Act.

However, where, in the third category, entirely new claims unconnected with the original claims pleaded are sought to be added, then the question of time limits will arise. In Bryant v Housing Corporation [Times Law Reports. 1st June 1998], to which Mr Edward has referred us, the Court of Appeal, overruling this Appeal Tribunal, held that a Chairman had not fallen into error in refusing leave to amend an Originating Application to add a claim of victimisation under the Sex Discrimination Act 1975, when no such factual claim appeared in the Originating Application, and such a claim was out of time.

The Appeal

Mr Edward has referred us to further and better particulars of the Originating Application now drafted on behalf of the appellant. They follow the form of order made by the Chairman, except that there are added wholly new particulars relating to the appellant's health and safety and trade union activities during the employment, going back to 1997. Mr Edward submits that since, in the Notice of Appearance the respondents sought further and better particulars of the Originating Application, these particulars should be treated as forming part of form IT1. He further relies upon certain documents listed in a list served by the appellant and dated 3rd November 1998. We are unable to accept that submission. The request for particulars in the Notices of Appearance relate to the claim of racial discrimination which the respondents unsurprisingly understood this to be. This is an attempt, in our judgment, to raise the new claims of victimisation due to health and safety and trade union activities out of time, in circumstances where they simply are not foreshadowed at all in the form IT1 particulars of complaint, making all allowances for the fact that at that time the appellant was unrepresented.

It seems to us that this case falls fairly within the principles set out by Buxton LJ in the Bryant case, we can discern no error of the law on the part of the Chairman in the orders which he made in this case, and accordingly, the appeal must be dismissed.