United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Claimant	MR TOBY KEMPSTER (of Counsel) Instructed by: Messrs Coffin Mew & Clover Solicitors Kings Park House 22 kings Park Road SOUTHAMPTON Hants SO15 2UF
For the Respondent	MR DANIEL OUDKERK (of Counsel) Instructed by: Messrs Clyde & Co Solicitors Beaufort House Chertsey Street GUILDFORD Surrey GU1 4HA

SUMMARY

Tribunal refused an application to amend a disability discrimination claim made on the first day of the hearing of an anticipated four day case. The claimant claimed that the Tribunal had erred in law in so refusing. The EAT held that there had been no such error; the Tribunal had properly weighed up all relevant matters and had reached a decision which they were manifestly entitled to reach.


 


THE HONOURABLE MR JUSTICE ELIAS (PRESIDENT)

1. This is an appeal against the unanimous decision of an Employment Tribunal which refused the claimant's application to amend the claim form on the first day of a four day hearing. We will hereafter refer to the appellant as the claimant, as he was below.
2. The background is as follows. The claimant was employed by the respondent as a sales consultant from 1 April 1996 until 30 September 2005. He was then dismissed by reason of redundancy when the particular office where he worked, at Eastleigh, was closed. Some staff were relocated to Fleet, but he was unsuccessful in obtaining the one senior sales consultant post. He lodged a claim on 3 January 2006 alleging that his dismissal was unfair, that it was in breach of contract, and also that it was contrary to the Disability Discrimination Act 1995 (the 1995 Act.) The nature of the disability was that he was diagnosed as suffering from prostate cancer as well as having diabetes.
3. The disability claim was advanced in three distinct ways. It was alleged that there had been direct discrimination contrary to s.3A(5) of the 1995 Act; discrimination for a disability related reason contrary to s.3A(1) of the Act; and a failure to make reasonable adjustments contrary to s.3A(2) of the Act.
4. The failure to make reasonable adjustments was an allegation that the selection criteria adopted by the respondent for choosing those to be made redundant ought to have been modified so as to take account of his disability.
5. There was a pre-hearing review on 1 March 2006. The claimant was legally represented but the respondent was not. The respondent accepted that the appellant was a disabled person within the meaning of the 1995 Act. In a schedule to the order made at that pre-hearing review the Tribunal identified the issues which had to be determined at the full hearing in the context of disability discrimination. The material part relating to the disability discrimination claim was as follows:

"The agreed issues for the substantive hearing were set out at Schedule A of the Order of the Employment Tribunal dated 1 March 2006 (at pp.49-51). Insofar as relevant Schedule A provides:

"A2 The complaint of unlawful disability discrimination arises under Ss3A(1), (2) and (5) Disability Discrimination Act 1995. The Claimant alleges that he was discriminated against:-

A2.1 contrary to S.3A(1), by the use of discriminatory redundancy selection criteria such as:-

A2.1.1 "effort, flexibility and adaptability"

A2.1.2 "potential to undertake alternative work"

A2.1.3 "timekeeping and attendance"

A2.1.4 "disciplinary record"

A2.2 contrary to S.3A(2), by failing to make adjustments in respect of the redundancy selection criteria, as set out above;".

6. On 30 March 2006 the claimant served a schedule of loss. It was in excess of £1 million. No doubt this caused the respondent to focus more carefully on this claim. The respondent was concerned to know precisely what case it had to meet and it wrote a letter to the claimant on 19 April 2006 seeking, amongst other matters, particulars of the case in relation to reasonable adjustments, and also a disclosure of the underlying medical evidence. No further information was provided in response to this letter.
7. The respondent then sought various further case management orders from the Employment Tribunal, specifically identifying the particulars of the reasonable adjustments that it was alleged they should have made.
8. The Tribunal rejected that application. There was an appeal to the Employment Appeal Tribunal but that was also rejected and not taken further. The respondents also sought to withdraw the concession made that the appellant was disabled, but that was refused.
9. On 7 July 2006, some ten days before the hearing, the claimant sent a letter to the respondent setting out what it purported to say were voluntary particulars of its disability discrimination claim in connection with the allegation that reasonable adjustments had not been made. They wished to contend that the claimant would lose certain PHI benefits as a consequence of being dismissed and that there should have been a proper consideration of alternative employment. It was alleged that as a disabled person the claimant would face a substantial disadvantage in comparison with persons who are not disabled if no job were found for him. There was no reference in those particulars to the fact that it was significant that the illness was progressive. Nor was there any indication that there would be any application to amend. A medical report from Dr Heath, the claimant's Oncologist, accompanied that letter.
10. There was a response from the respondent on the 10 July in which they observed that it was not clear what the significance of the medical report was nor why it should have been provided so late. On the 11 July there was a further reply from the claimant explaining the relevance and purpose of that report. Again there was no reference to any amendment being sought. This report had been in the possession of the claimant for a period in excess of 7 months. The application to amend was made for the first time on the morning of the first day of the hearing.
11. The amendment was formulated as follows:

"The application of an (unfair) redundancy procedure (i.e. the application of a provision, criterion or practice) resulting in the dismissal of the Claimant placed him at a substantial disadvantage in comparison with persons who are not similarly disabled because of the consequential loss of the Claimant's entitlement to permanent health insurance and/or life assurance. The Respondent should, for example, have made reasonable adjustments by:

(a) allowing the Claimant to compete for posts other than senior sales

consultant, and/or

(b) by transferring the Claimant to an existing vacancy or otherwise

offering the Claimant alternative employment.

In relation to numbered paragraph 2 above we enclose a copy of Dr Catherine Heath's medical report dated 2 December 2005 which the Claimant will be relying upon".

We emphasise that we are not in this hearing concerned with the merits of the proposed amendment. We simply note that the amendment is premised on the notion that an employer should take into account the financial consequences to the employee, or to the disabled employee, when determining whether the adjustment is reasonable.

12. The Tribunal considered the application and refused it. It is that decision which is now the subject of appeal.

The relevant law

13. The principles which Tribunals should adopt when determining whether or not to allow an amendment are firmly established. They were set out in the judgment of Mr Justice Mummery (as he then was) in the decision of this Tribunal in Selkent Bus Company Ltd v Moore [1996] ICR 836. The Tribunal expressly referred to this case in its judgment. The relevant passage is as follows:

"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."

The EAT noted that what constituted 'relevant circumstances' would vary from case to case but that certain matters would always be relevant, namely the nature of the amendment; the applicability of any time limits; and the timing and manner of the application.

14. In connection with the last of these, Mummery J said this:

"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."

15. It is trite law that an appeal against a preliminary determination of this kind can only succeed where the Employment Tribunal has breached what would traditionally have been described as the Wednesbury grounds such as a mistake of law or disregard of principle or a fundamental misapprehension of the facts: see Noorani v Merseyside Tec [1999] IRLR 184 (CA).

The Tribunal's decision

16. The Tribunal set out the background, which we have already rehearsed. The appellant was contending that the amendment merely altered the basis of an existing claim and that the question of whether or not alternative employment should have been sought was a matter that was already in issue because it arose in the context of the unfair dismissal claim. He acknowledged, however, that it had not been raised in the context of making reasonable adjustments. He contended that the amendment was minor and caused no great difficulty for the respondent.
17. The respondent contended that there had been many opportunities for the claimant to raise this matter earlier. He had not known that an amendment would be sought until counsel for the claimant had risen to his feet on the first day of the hearing. He noted that the respondent had sought on a number of occasions for further amplification of the reasonable adjustment case and yet no additional particulars had been provided. He contended that there would need to be an adjournment to deal with the matter because it raised new issues of fact. In particular, an issue arising from Dr Heath's report was whether the illness suffered by the claimant was indeed a "progressive condition". That was very much a matter potentially in dispute, not least because the evidence was that the cancer had been arrested at the time of dismissal, and the respondent would need time to instruct its own expert.
18. The Tribunal noted that it was acknowledged by both sides that the amendment was altering the basis of an existing claim rather than raising a new one. It was also recognised that it involved the introduction of evidence to establish that the condition of the cancer was progressive. It then it identified the following matters which it considered to be relevant to its determination:

"9. The relevant matters, we judge, appropriate for consideration are the following:

9.1 The Claimant has been legally represented throughout.

9.2 The issues were clarified fully at the Pre-Hearing Review in March 2006.

9.3 There were requests made thereafter in April and May for further particulars of the reasonable adjustment, which were refused.

9.4 The medical report the Claimant seeks to rely upon, dated 2 December 2005, was in the possession of the Claimant's solicitors before the proceedings were instituted, but it was handed to the Respondent ten days ago in support not of an application at that stage but merely of further particulars.

9.5 The Respondent is hampered by its inability to contest the contention advanced in the last ten days that the Claimant's prostate cancer is progressive and, further, is unable at present to address the amendment generally sought.

9.6 The Respondent has been prepared to defend the case on the basis of the current agreed issues."

19. The Tribunal then referred to Selkent and noted that they were not satisfied there was any satisfactory for the explanation for the delay in making the amendment. The claimant had said that it was because it was prompted by a conference with counsel shortly before the letter was sent on 7 July but the Tribunal did not accept that this was a good explanation. It took into account the question of competing hardships. It expressed the view that the question of PHI was more appropriately linked with remedy, rather than with liability, and it observed that if the amendment were granted then there would need to be an adjournment.
20. Finally, its conclusion was as follows (para 13 of its decision):

"We consider, in applying the above considerations, that it would not be appropriate at this late hour to allow the amendment. For similar reasons that prompted a refusal to permit the Respondent to withdraw from an earlier concession regarding disability because of the passage of time and the attendant delay, we consider that allowing an amendment with what, we judge, would be an inevitable need for an adjournment would not achieve the overriding objective. We consider that the balance of hardship favours the Respondent, and therefore in the exercise of our discretion we refuse the proposed amendment."

21. Mr Kempster, who has made his submissions this morning with skill and economy, makes a number of criticisms of the decision. Mr Oudkerk, counsel for the respondent, essentially seeks to hold the decision by observing that it was a proper exercise of discretion by the Tribunal. Indeed, he referred us to an unreported decision of the Court of Appeal in Woods v Sheila Chalee and others [28 May 1999] in which the court emphasised that under the new procedural regime it was contrary to the spirit of those principles to allow late amendments, which could have been made earlier, and which would lead to the loss of a trial date. Mr Oudkerk says that if anything it would have been perverse for the Tribunal to have allowed this amendment in the circumstances of this case.
22. The grounds of appeal are these. First, the claimant submits that the Tribunal did not properly appreciate that the amendment did not seek to introduce a new head of claim as such, but merely an alternative basis for advancing the reasonable adjustment case. We do not think that is sustainable because the Tribunal stated in terms that it was common ground that it was merely altering the basis of an existing claim.
23. Second, Mr Kempster submits that looking at this amendment, it was plain that all the matters that would be necessary in order to pursue the new ground were either pleaded or not in issue. It was stated, in terms, in the original claim that the cancer was progressive; the existence of the PHI scheme was not in dispute; and finally, the question of whether the respondent should have sought alternative employment by allowing the appellant to compete for other vacancies, apart from that identified by the employer himself, was already a matter which was before the Tribunal because of the unfair dismissal claim and indeed, the existing disability claim. So, he submits that the Tribunal did not give sufficient weight to the fact that here was an amendment which was very closely related to the existing claims advanced by the appellant.
24. Again, we do not think this is a fair criticism. The fact that the cancer had originally been stated to be progressive was not apparently of any relevance once it had been conceded that the claimant was disabled. It only became significant in view of the amendment sought. It was only then that it became material for the respondent to address the issue.
25. Third, he submits that the Tribunal really focused only on the question of delay. They did not consider the balance of hardship, as required by the court in the Selkent case. Moreover, Mr Kempster says, delay should be only one factor and not necessarily a determinative one.
26. We do not think that is a fair assessment of the Tribunal's decision. It did not, in fact, focus on delay in itself. It was not, in other words, penalising the claimant simply because of the lateness of the application. The key point here was that the late application inevitably meant that there would have to be an adjournment; and the Tribunal noted that it was an application that could have been made a lot earlier. They did not fail to identify that the real issue was balance of hardship because they referred to that in terms in their concluding paragraph which we have already set out in this judgment.
27. Then, it is contended that the Tribunal erred in concluding that the question of PHI benefits could be pursued as a matter of remedy. That observation seems to us to be a perfectly proper one. It is surely potentially relevant in any assessment of loss. We do not read the Tribunal as saying that it was decisive in the exercise of discretion nor that the amendment was wholly immaterial.
28. It was said that any hardship could have been dealt with by an adjournment, perhaps with the costs caused by the delay being awarded against the claimant. The claimant did not at any stage volunteer such an undertaking and it is not clear that he would have been in a position to meet these costs. In any event, the Tribunal was fully entitled to take the view that since this issue could have been pleaded very much earlier, it was not appropriate to grant an adjournment.
29. The overriding objective requires, amongst other matters, that cases are dealt with expeditiously and in a way which saves expense; further delays would have been inconsistent with these objectives. We would also observe that even if the costs to the respondents could have been met by a wasted costs order, that would not have dealt with the cost to the public of standing down the tribunal at that stage. There is obviously no right to an adjournment merely on payment of the other party's costs.
30. Finally, it was faintly argued that the Tribunal erred in paying any regard to the fact that the Tribunal had refused to allow the respondent to withdraw from its concession that the appellant was disabled. Again, in our view, this was a perfectly apposite observation. There was a similarity between the two applications. In both the parties were bound by the issues as identified at the pre-hearing review and in both the application was made very late.
31. We think there is no basis at all for saying that there was any error in the approach of the Tribunal here. On the contrary, we think it weighed up the factors fairly and carefully, and reached a conclusion that it was fully entitled to reach in the circumstances. Notwithstanding Mr Kempster's protestations to the contrary, we think that in truth this is really a perversity appeal. The real complaint is that the Tribunal did not weight the factors as the claimant would have wished. But that is not an error of law.
32. We would add in this context that we strongly support the observations of His Honour Judge Clark, sitting in this Tribunal in the case of Skinner v Leisure Connections plc UKEAT/0059/04 (to which we have referred in the bundle of authorities) when he noted that it really is essential for parties to bring forward the whole of their case, in discrimination cases in particular, at the directions hearing. Obviously, later amendments will be permitted in an appropriate case, but the later the application is made, the greater the risk of the balance of hardship being in favour of rejecting the amendment.
33. For these various reasons therefore, this appeal fails.