United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR MANJIT PANESAR (Of Counsel) Instructed by: Croydon & Sutton Law Centre 79 Park Lane Croydon CRO 1JG
For the Respondent	MR NIRAN DE SILVA (Of Counsel) Instructed by: Messrs Bircham Dyson Bell Solicitors 50 Broadway Westminster London SW1H OBL

SUMMARY

Amendment

Test for determining whether a claim is a new claim for which leave to amend is required: Ali v Office of National Statistics [2005] IRLR 201 and Selkent Bus Co. Ltd. v. Moore [1996] ICR 836 applied.

THE HONOURABLE MR JUSTICE KEITH

Introduction

1. The Appellant, Audrey Ennever, is employed by the Respondent, the Metropolitan Police, as an administrative officer. On 21 April 2005, she brought a claim in the Employment Tribunal in which she alleged that the Metropolitan Police had discriminated against her on the grounds of her race, sex, religion and disability. At a case management discussion on 17 October 2005, the Chairman of an Employment Tribunal at London South refused Ms Ennever leave to amend her claim, and it is from that decision that Ms Ennever now appeals to the Employment Appeal Tribunal.

The relevant facts

2. Ms Ennever started to work for the Metropolitan Police in February 1991 at Jubilee House in Putney. In September 1992, she was transferred to New Scotland Yard, where the discriminatory treatment of which she complains is supposed to have begun. In October 1994, she began a period of maternity leave, which was immediately followed by a career break. She returned to work in September 2000 – back at Jubilee House – and she complains of discriminatory treatment there as well. She says that her treatment was such that in 2001 her health broke down, and she remained on sick leave for three years. She returned to work in June 2004 – this time in the Directorate of Professional Standards in Vauxhall. She claims that the discriminatory treatment of her continued there as well, leaving her with no alternative but to complain about her treatment to an Employment Tribunal.
3. The only claim which Ms Ennever made in her claim form was a claim for discrimination. The details of the discriminatory treatment to which Ms Ennever claims she was subjected were referred to only very briefly in it. Accordingly, on 14 June 2005, she was ordered to provide further particulars of her claim by 28 June 2005. That order was not complied with, and that was discussed at a case management discussion on 13 July 2005. By then, Ms Ennever had got solicitors to act on her behalf, and the Tribunal ordered that she was to provide further particulars of her claim by 3 September 2005. It was an "unless" order, i.e. the Tribunal ordered that if she failed to provide the further particulars by 3 September, her claim would be struck out. It also ordered that there be another case management discussion on 17 October 2005.
4. Ms Ennever's solicitors ceased to act for her, and on 2 September 2005 Ms Ennever provided the Tribunal with further particulars which she had drafted herself. However, by the case management discussion on 17 October, Ms Lisa Connerty of the Croydon and Sutton Law Centre had agreed to act for her. The Law Centre prepared a more comprehensive document which skilfully set out the further particulars of her claim. It was sent to the Tribunal on 14 October. In addition to the claims of discrimination referred to in the claim form, the further particulars prepared by the Law Centre made three other claims: a claim that she had been subjected to less favourable treatment because she was a part-time worker, a claim that she had been treated to her detriment because she had made a protected disclosure, and a claim that her human rights had been infringed.
5. At the case management discussion on 17 October 2005, the Chairman reminded Ms Connerty of the comments made by Mummery LJ in Commissioner of Police of the Metropolis v Hendricks [2003] ICR 530 at [54] that "[a]ttempts must be made by all concerned to keep discrimination proceedings within reasonable bounds by concentrating on the most serious and the most recent allegations". After taking instructions, Ms Connerty said that Ms Ennever would be limiting her complaints to matters occurring on or after her return to work in June 2004, though since a complainant is entitled to rely on events before and after the treatment complained of as evidence that the treatment complained of was discriminatory, the Chairman recorded that Ms Ennever "could refer in general terms to her allegation that she [had been] harassed or discriminated against in her previous workplace".
6. Ms Connerty also told the Chairman that two of the new claims referred to in the further particulars for the first time would not be pursued, namely the claim that Ms Ennever had been subject to a detriment because she was a part-time worker, and the claim that her human rights had been infringed. There was therefore one incontestably new claim which Ms Ennever wished to pursue, namely the claim that she had been treated to her detriment because she had made a protected disclosure. The basis of that claim was explained in the further particulars of 14 October 2005. It was that on 8 March 2001, shortly before she began her three-year period of absence, and later on 18 January 2005, she presented grievances about how she had been treated. Those grievances were alleged to be protected disclosures, the detriment being the discrimination to which she alleged she had been subjected after she had presented those grievances. Since discrimination was the only claim made in the claim form, it was not disputed that Ms Ennever needed leave to amend her claim form if she was to be permitted to pursue this allegation. The Chairman's refusal to grant her leave to amend the claim form to enable her to do that is one aspect of the appeal.
7. There was another claim which Ms Ennever wanted to pursue. It arose out of precisely the same facts as her protected disclosure claim. It was a claim of discrimination by victimisation as a result of the grievance she had presented on 8 March 2001. Her case as appears from the further particulars of 14 October 2005 was that the discriminatory treatment to which she had been subjected on her return to work in June 2004 had amounted to the victimisation of her for having presented the grievance in the first place. No reference was made in the further particulars of 14 October 2005 to the grievance of 18 January 2005 in this connection. That may have been an oversight. However, at the case management discussion on 17 October 2005, Ms Connerty argued that Ms Ennever did not need leave to amend her claim form for this claim to be pursued, because it was not a new claim. But the Chairman must be regarded as having concluded that it was a new claim, because he required her to apply for leave to amend her claim form. In his reasons, he did not explain why he thought that the claim for discrimination was a new claim. In the event, he refused to grant Ms Ennever leave to amend the claim form to enable her to pursue this claim, and that is the other aspect of the appeal.

The claim of victimisation

8. In order to decide whether the claim of victimisation as a result of the presentation of the grievance of 8 March 2001 was a new claim, it is necessary to go back to the claim form. A new claim form, form ET1, replaced the old originating application, form IT1, in 2004. Section 6 of the new form, which is headed "Discrimination", reads as follows:

"Please fill in this section only if you believe you have been discriminated against.

Please tick the box or boxes to indicate what discrimination (including victimisation) you are complaining about:

Sex (including equal pay)	▭		Race	▭
Disability	▭		Religion or belief	▭
Sexual orientation	▭

Please describe the incidents which you believe amounted to discrimination, the dates of these incidents and the people involved."

Ms Ennever ticked all the boxes except "Sexual orientation", and under paragraph 6.2, she wrote:

"I have been employed with the Metropolitan Police since 04.02.91. I took a career break after having my daughter in December 1994. I returned to the Metropolitan Police in September [2000] on a part-time basis. Since my return I have been belittled, bullied, harassed, racially discriminated against and asked personal questions. I have tried to resolve my grievance informally but this has made [the] situation worse. Within six months of returning to work I suffered a nervous breakdown. I was off sick for three years. On 28.06.04 I returned to work in a different department. I was ridiculed and mocked about my breakdown in my previous department. Nasty comments [were] made about [me]. I was and still am ignored. Racial comments such as I need black polish to put on my face were made by my colleagues. I have taken fairness at work procedure. I have since then been more isolated and ignored."

The reference to "my grievance" was a reference to the grievance she had made on 8 March 2001, and the reference to the "fairness at work procedure" was a reference to the grievance she had made on 18 January 2005.

9. I imagine the reason why paragraph 6.1. of the form refers to "discrimination (including victimisation)" is because victimisation is a form of discrimination. Thus, section 4 of the Sex Discrimination Act 1975 is headed "Discrimination by way of victimisation". So too is section 2 of the Race Relations Act 1976, as is regulation 4 of the Employment Equality (Religion or Belief) Regulations 2003. Mr Manjit Panesar for Ms Ennever argued that if a Claimant ticks any of the boxes in paragraph 6.1, the Claimant is alleging discrimination in whatever form discrimination can take. Such a Claimant must therefore be treated as having included in the claim for discrimination a claim for victimisation, whether or not the Claimant gives details of the claim in paragraph 6.2 and whatever those details may be.
10. The answer to that is provided by what the Court of Appeal said in Ali v Office of National Statistics [2005] IRLR 201. That was a case which concerned form IT1, but the principle it stated applies to an ET1 just as well. At [39], Waller LJ said:

"In my view the question whether an originating application contains a claim has to be judged by reference to the whole document. That means that although box 1 may contain a very general description of the complaint and a bare reference in the particulars to an event, particularisation may make it clear that a particular claim for example for indirect discrimination is not being pursued. That may at first sight seem to favour the less particularised claim, but such a general claim cries out for particulars and those are particulars to which the employer is entitled so that he knows the claim he has to meet. An originating application which appears to contain full particulars would be deceptive if an employer cannot rely on what it states."

Applying that to an ET1, if a Claimant ticks any of the boxes in paragraph 6.1, but gives no details of the claim in paragraph 6.2, the Claimant must be treated as alleging discrimination in whatever form discrimination can take, though the Claimant can be required to give particulars of the claim. If, on the other hand, details of the claim are given in paragraph 6.2, those details will identify the particular form of discrimination being alleged. So if the details of the claim given in paragraph 6.2 show that the claim does not include an allegation of victimisation, any subsequent attempt to allege victimisation will amount to a new claim for which leave to amend is required.

11. Did paragraph 6.2 of Ms Ennever's claim form include an allegation of victimisation as a result of the presentation of the grievance of 8 March 2001? It is necessary to look at the language Ms Ennever used in its context, which was that Ms Ennever, a non-lawyer, wrote the contents of paragraph 6.2 herself. It should not be construed as if it was an Act of Parliament or a contractual provision in a commercial contract drafted by lawyers. The crucial words were: "I have tried to resolve my grievance informally but this has made [the] situation worse." Ms Ennever had already said that she was being discriminated against before she presented her grievance of 8 March 2001. If the presentation of the grievance made things worse, she could only have been saying that the discriminatory treatment to which she had been subjected got worse as a result of the grievance. That was an allegation of victimisation.
12. Mr Niran de Silva for the Metropolitan Police did not seek to argue against that. Instead, he contended that if the discriminatory treatment of Ms Ennever after the presentation of her grievance constituted the victimisation complained of, she was only complaining of that victimisation until she stopped working in 2001. That victimisation was no longer relied on in view of Ms Ennever's decision to limit her complaint to matters occurring on or after her return to work in June 2004. The crucial point was that although she was alleging discrimination on her return to work in 2004, she was not alleging in paragraph 6.2 that this discrimination was because of the grievance she had presented on 8 March 2001. This subtle argument is far too refined for my taste. The fact is that she did not limit the period during which she said things got worse as a result of the grievance to the period between the presentation of her grievance on 8 March 2001 and whenever it was in 2001 when she stopped work. The upshot of that is that it was unclear whether she was saying that her victimisation as a result of presenting the grievance ended then, or whether it resurfaced when she returned to work in 2004. That was an ambiguity which could be clarified by further particulars. And it was: paragraph 14 of the further particulars of 14 October 2005, after referring to her return to work in 2004, stated that Ms Ennever "believes that all her colleagues at Vauxhall knew of her previous grievance and she was thus discriminated against by way of… victimisation… " It follows that the allegation of victimisation as a result of the presentation of the grievance was not a new claim, and Ms Ennever did not need leave to amend her claim form to enable her to pursue the allegation.
13. I should add a comment about the allegation contained in the last two sentences of paragraph 6.2: "I have taken fairness at work procedure. I have since then been more isolated and ignored." That amounts to an allegation of victimisation, namely that the discriminatory treatment to which she had been subjected prior to the presentation of the grievance of 18 January 2005 got worse as a result of that grievance. Again, Mr de Silva did not argue otherwise. Instead, he simply pointed out that this allegation was not being pursued if the further particulars of 14 October 2005 were anything to go by. The grievance of 18 January 2005 was referred to in paragraph 15 of those particulars, but only in the context of the protected disclosure claim, not in the context of the claim of victimisation. As I have said, that may have been an oversight, and Ms Ennever should have the opportunity to put that right if its omission was not intended. Giving Ms Ennever the opportunity to rectify this oversight, if that is what it was, is not inconsistent with the passage cited earlier in this judgment from Ali. There is a difference between including a claim in further particulars which was not included in the claim form, and failing to include a claim in further particulars which was included in the claim form. Since the hearing of the claim is imminent – it is fixed for 10 days starting on 13 March – she must notify the solicitors for the Metropolitan Police within 3 days of the handing down of this judgment whether she wishes to pursue a claim of victimisation arising out of the grievance of 18 January 2005. It will not add anything to the case in terms of evidence if the protected disclosure claim is allowed to continue because it relies on precisely the same facts as that claim.

The protected disclosure claim

14. The protected disclosure claim arises out of the same facts as the allegation of victimisation. The acts complained of were the acts of discrimination to which Ms Ennever claims she was subjected as a result of the presentation of her grievances of 8 March 2001 and 18 January 2005. Since paragraph 6.2 of the claim form included the allegation of victimisation, the protected disclosure claim was a new claim only in the sense that a new label was being applied to a claim which had already been made.
15. In Selkent Bus Co. Ltd. v Moore [1996] ICR 836, the Employment Appeal Tribunal considered what test to apply to applications for leave to amend an IT1 to raise a new claim. The relevant passage of the judgment of Mummery J (as he then was) at pp. 843E-844A was as follows:

"(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 is certainly relevant.

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 addition 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.

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… "

Thus, in subsequent cases where a new claim arose out of facts which had already been alleged in the originating application or the claim form, the proposed amendment was considered under the general principles applicable to amendments. Only new claims which arose out of new facts would be subject to scrutiny in respect of time limits.

16. In the present case, the Chairman refused to permit the claim form to be amended to enable the protected disclosure claim to proceed on the basis that the time limit imposed by section 48(3) of the Employment Rights Act 1996 for presenting the claim had expired, and he was not satisfied that it had not been reasonably practicable for the claim to have been presented within the time limit. That was the wrong approach. Since the protected disclosure claim simply applied a new label to the facts which had already been set out in paragraph 6.2 of the claim form, the application for leave to amend should have been decided in accordance with the general principles applicable to amendments. Since the Chairman did not do that, it is necessary for the Employment Appeal Tribunal to decide how the discretion should be exercised in this case. I think that the amendment has to be allowed. It may be that the protected disclosure claim adds little to the claim of victimisation. But since it would not involve the proof of facts over and above those needed to be proved for the claim of victimisation, no additional evidence would need to be called. The Metropolitan Police will not suffer any relevant prejudice if the protected disclosure claim was allowed to proceed.
17. The only ground of appeal in the notice of appeal relating to the protected disclosure claim was that the chairman erred in concluding that it had been reasonably practicable for the claim to have been presented within the time limit. But Mr de Silva was not taken by surprise. He was able to argue that the Chairman's approach in determining the issue of amendment by scrutinising the time limit had been correct on the basis that the protected disclosure claim was not based on facts which had been alleged in the claim form – for precisely the same reasons as he contended that the claim of victimisation was not based on facts which had been alleged in the claim form. In the circumstances, I do not think that the Metropolitan Police has suffered any relevant prejudice as a result of the argument which has been advanced even though it was not included in the notice of appeal.

Conclusion

18. For these reasons, the appeal must be allowed, and the order of the Chairman refusing Ms Ennever leave to amend the claim form to include the claim of victimisation and the protected disclosure claim must be set aside. Ms Ennever is entitled to proceed with the claim of victimisation without an amendment to the claim form. She needs leave to amend her claim form to include the protected disclosure claim, and I grant her leave to amend the claim form to include the particulars of that claim contained in the further particulars of 14 October 2005.