United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR J MACKENZIE (Solicitor) Messrs John Mackenzie Solicitor Rotherfield House 7 Fairmile Henley on Thames Oxon RG9 2JR
	MR M SNARR (of Counsel) Instructed by: Messrs Beachcroft LLP Solicitors 7 Park Square East Leeds LS1 2LW


 


SUMMARY

Practice and Procedure - Amendment

Amendment to add new DDA cause of action after primary limitation period had expired. Need to consider whether just and equitable to extend time. (Selkent)

HIS HONOUR JUDGE PETER CLARK

1. This is the full hearing of an appeal by Mrs Rawson, the Claimant before the Sheffield Employment Tribunal, against the order of Employment Judge Williams, sitting alone on 29 August 2007, refusing her application for permission to amend her claim form ET1 to add a claim of disability discrimination against the Respondent, her former employer Doncaster Central Primary Care Trust. That order with reasons was promulgated on 6 September 2007.

Background

2. The Claimant commenced employment with the Respondent or its predecessor as a community staff nurse on 15 September 2002. Prior to appointment she had been diagnosed as dyslexic, following an assessment carried out in the Department of Psychology at Sheffield University, on 10 November 2000. Following disciplinary proceedings the Claimant was dismissed by the Respondent on 28 September 2006 on grounds of alleged misconduct. Her appeal against that decision was dismissed on 11 December.
3. She lodged a claim form ET1 with the tribunal on 28 December 2006. She received some assistance in completing that form from a Citizens Advice Bureau worker who was not legally qualified. Her claims were in respect of unfair dismissal, both ordinary unfair dismissal and detrimental treatment under the whistle-blowing provisions of the Employment Rights Act 1996. There was then no claim of disability or any other form of unlawful discrimination raised in the claim form, although at section 11, under the heading Disability for the purposes of assisting her during the tribunal process, she said: "I was diagnosed as dyslexic when I started my nurse training". The claims were resisted by the Respondent by a form ET3 dated 25 January 2007. It seems that following a telephone call by the Claimant to the British Dyslexia Association help line she was referred to Mr Mackenzie, a solicitor experienced in dealing with disability cases on behalf of dyslexics. He has represented her since 5 March 2007.
4. On 27 April 2007 a telephone case management discussion took place, conducted by Judge Williams. He records in his reasons dated 6 September 2007 at paragraph 4 that in answer to a direct question from him Mr Mackenzie confirmed that the only claims being pursued by the Claimant were those of unfair dismissal and whistle-blowing. Further particulars of the public interest disclosure claim were provided by Mr Mackenzie on 22 May.
5. I interpose that no evidence was called before Judge Williams on 29 August 2007. However, Mr Mackenzie explained in a Skeleton Argument prepared for that hearing the difficulty which the Claimant had in providing instructions to him and he in taking instructions from her. Mr Mackenzie spent the whole of 5 April 2007 attending the Claimant at her home in Doncaster (his office is in Henley-upon- Thames) and took further instructions on 22, 23, 24 and 25 May 2007. Having considered the documentation with which he had then been provided Mr Mackenzie took the view that the Claimant's dyslexia was central to her claim. He instructed Dr David McLoughlin, an expert educational psychologist in the field, to prepare a report. Dr McLoughlin examined the Claimant on 10 July 2007 and prepared a report received by Mr Mackenzie on 3 August.
6. Meanwhile, Mr Mackenzie gave notice of intention to seek to amend the claim to include a DDA claim on 25 May, lodged a formal application to amend on 15 June and a further amended claim, dated 1 August 2007, contending solely that the Claimant's dismissal was an act of direct disability discrimination or disability related discrimination. See DDA section 3A(5) and 3A(1) respectively, read with section 4(2)(c). The application was opposed and dismissed by Judge Williams. His conclusions are summarised at paragraphs 22 to 23 of his reasons in this way:

"22. I have decided to refuse leave to amend. It is a new cause of action. The first intimation of a DDA claim came at the end of May, i.e. some five months after the initial claim was lodged and nearly three months after Mrs Rawson had the benefit of Mr Mackenzie's assistance. She already has a claim under the Public Interest Disclosure provisions of the Employment Rights Act and if she succeeds on that there is no cap on any compensation she might obtain. Her originating claim gives no hint or suggestion of a disability related claim and that position was confirmed in April at the case management discussion. If she were allowed to add the claim she now seeks to make it would delay matters considerably. The October dates already agreed for a substantive hearing of the current claim would go and, I venture to suggest, the claim would not proceed until early next year, i.e. more than a year after the claim was first lodged.

23. The respondent is bound to have to do a good deal more work and will be put to greater trouble and expense. I have taken note of the cases cited to me but given the circumstances of this particular case I feel that to allow Mrs Rawson now to bring her further claim i.e. this late in the day would, in my view, cause more harm and prejudice to the respondent than to herself."

7. Since it was common ground that the DDA claim was a new cause of action, applying Selkent principles (Selkent Bus Co Ltd v Moore [1996] ICR 836) a relevant factor for the judge to take into account was the applicability of time limits, see Mummery P, page 843H where he said this:

"(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, e.g., in the case of unfair dismissal, section 67 of the Employment Protection (Consolidation) Act 1978 [now s.111(2) of the Employment Rights Act 1996]."

8. I note that in his Skeleton Argument below at paragraph 35 Mr Mackenzie submitted that even if the amendment was permitted it would be open to the Claimant to seek to have her cause of action permitted if it was held just and equitable to do so. He asserted that it would not be possible for the tribunal to make a full assessment of the just and equitable issue on a short application with no evidence. Ms Rowley, then appearing on behalf of the Respondent, raised in her Skeleton Argument as an issue the just and equitable extension, the application to amend, at earliest on 15 June 2007, being outside the primary three-month limitation period going back to the Claimant's dismissal on 28 September 2006. She submitted that it would not be just and equitable to extend time, whilst observing that it may be necessary to hear direct evidence from the Claimant on this point.
9. In oral submissions, the Judge records at paragraph 19 of his reasons:

"Ms Rowley on the other hand makes the point that … The proposed amendment would add a new cause of action which could be out of time unless a Chairman [Employment Judge] at a pre-hearing review or a tribunal at a substantive hearing were to allow it to proceed on the basis of it being just and equitable."

The Appeal

10. By a Notice of Appeal lodged on 27 September 2007 the Claimant raised issues under article 6 of the European Convention on Human Rights and article 9 of EC Directive 2000/78/EC and at paragraph 16 said:

"16. The Chairman, by excluding the amendment, was implicitly making a finding against the Claimant on the just and equitable provision in paragraph 3(1) of Schedule 3, Part of the Disability Discrimination Act 1995, but did so without making any reference to the provision in his judgment or giving specific reasons for such a finding."

11. Those grounds of appeal were initially considered by Elias P, on paper and rejected under EAT rule 3(7). However, at a rule 3(10) hearing held on 8 January 2008 HHJ McMullen QC allowed the appeal to proceed to this full hearing in part for the reasons given in a judgment on that day. His order, seal dated 11 January 2008, provided at paragraph 2:

"2. This appeal be set down for a full hearing on all the grounds other than the grounds of appeal relying on Article 6 ECHR and Article 9 Directive 2000/78/EC, the periods in Disability Discrimination Act 1995 Sch 3 para 3 being compatible with them."

In light of that direction Mr Mackenzie does not seek to raise the article 6 or article 9 points dismissed by Judge McMullen.

12. It seems to me that the real point in the appeal is that raised at paragraph 16 of the grounds of appeal. Mr Snarr submitted that the point was effectively dismissed by Judge McMullen at paragraph 4 of his judgment where he said this:

"4. Mr Mackenzie indicates that one of the reasons taken into account by the Employment Judge was the impending 5 day hearing set for October 2007 which would be aborted if the application to amend were allowed. But he has indicated to me that by reason of what appeared to be failures by the Respondent to abide by orders for disclosure the hearing would not go ahead anyway. The application was properly made under schedule 3 paragraph 3 of the Disability Discrimination Act 1995 where a three month period is imposed subject to a discretion to extend the period where it is just and equitable to do so. The Employment Judge, while not expressly referring to the statute or to that provision, implicitly directed himself to it. That concession is properly made for the judge does conduct a balancing exercise which is only consistent with an approach to what is just and equitable, it being common ground that this is a new claim which was not launched within the primary period of three months and thus the issue was whether discretion should be exercised."

13. However, it is clear to me from paragraph 2 of Judge McMullen's order, and it is the practice in this tribunal for judges always to approve orders before they are sealed and sent to the parties, that this ground was permitted to proceed to this full hearing. I am not prepared to imply or infer that the employment judge considered the question of a just and equitable extension. Although he referred to Selkent, he did not refer to the question of limitation identified as an essential question in the judgment of Mummery P. The reason for that may be that he was persuaded by both representatives that the just and equitable extension issue fell to be decided if permission to amend was granted.
14. In my judgment that is a wrong approach, as is made clear in the passage earlier cited in Selkent. The effect of an amendment is to backdate the new claim to the date on which the original claim form is presented. Once the amendment is granted, the Respondent is thereafter prevented from raising the limitation defence. That is why consideration of the extension of time point is essential when deciding whether or not to grant permission to amend. As Mr Mackenzie submits, if it would be just and equitable to extend time that would be a strong, although in my view not necessarily determinative, factor in favour of granting permission. If it is not just and equitable to extend time that would be a powerful, but again not determinative factor, against see per Underhill J in Transport and General Workers Union v Safeway Stores Limited, UKEAT/0092/07/LA, 6 June 2007, paragraph 13. What is clear is that the point must be considered at the amendment stage.

Conclusion

15. It follows, in my judgment, that the employment judge's reasons are defective in not addressing the just and equitable extension question. His references to the balance of hardship are relevant to the Selkent factors identified by Mummery P in that case, see 844B. Mr Snarr submits that those considerations cover the questions raised in the just and equitable extension issue. I do not accept that submission, bearing in mind the wider range of factors listed in section 33 of the Limitation Act 1980 incorporated into the just and equitable extension exercise by the judgment of Smith J, as she then was, in British Coal Corporation v Keeble [1997] IRLR 336.

Disposal

16. For these reasons I shall allow the appeal. Mr Mackenzie invites me to deal with the amendment application, including the limitation point, without remission to the Employment Tribunal, the course in fact taken by Underhill J in the Safeway case, thus avoiding a further hearing below and in the interests of proportionality. Mr Snarr submits that the matter must return to the first instance tribunal, particularly where evidence may be necessary to determine the just and equitable extension issue. I agree with Mr Snarr for the reason which he advances. There are insufficient findings by the first employment judge to allow me to make a judgment on the just and equitable extension question. Consequently I shall remit the application to amend to a different employment judge for rehearing and reconsideration.