United Kingdom Employment Appeal Tribunal

Appeal No. UKEAT/0046/11/SM

EMPLOYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 30 March 2011

Before

HIS HONOUR JUDGE PETER CLARK

(SITTING ALONE)

QUEENSWAY SURGERY CLAIMANT

DR J S JAYATILAKA RESPONDENT

Transcript of Proceedings

JUDGMENT

APPEARANCES

SUMMARY

PRACTICE AND PROCEDURE - Amendment

Appeal against Employment Judge grant of permission to amend Form ET1 to add claims under Disability Discrimination Act to complaint of constructive unfair dismissal.

Appeal allowed in part.  Employment Tribunal order varied.

HIS HONOUR JUDGE PETER CLARK

1.            The parties in this matter at the East London Employment Tribunal are Dr Jayatilaka, Claimant and Queensway Surgery, Respondent.

2.            The Claimant is a general practitioner.  She was in practice on her own account with a partner but resigned from that practice at a time when she was suffering from neurosarcoidosis.  She then joined the Respondent practice in 2002 and remained so employed until her resignation effective on 15 June 2009.

3.            She presented a Form ET1 to the Tribunal on 11 September 2009, complaining only of constructive unfair dismissal.  She did not indicate any discrimination in the claim, although there is express provision for such claims in the standard form.  Prior to presenting her Form ET1 she wrote to the Respondent on 4 July saying that she had taken legal advice and had been advised that she had a good case for claiming constructive dismissal which leads on to a claim for unfair dismissal.  In the Form ET1 she identified the representative to whom correspondence should be sent as Mr Raj Chada, solicitor, of Hodge Jones & Allen LLP.

4.            The claim was resisted by a Form ET3, dated 28 October 2009.  On 12 January 2010 the Claimant’s solicitor wrote to the Tribunal making application to amend the ET1 to add complaints of direct disability discrimination, disability-related discrimination, failure to make reasonable adjustments and harassment under the DDA.

5.            The particulars of those additional claims can be summarised in this paragraph of the letter:

6.            The amendment application was opposed by the Respondent and came on for hearing before Employment Judge Brook sitting alone on 2 September 2010.  He allowed the amendment in terms of paragraphs 1 to 3 of his judgment for the reasons then set out in his judgment promulgated on 12 November 2010.  Against that permission to amend, this appeal is brought by the Respondent.  It has been permitted to proceed to this full hearing on the paper sift by HHJ Richardson.

7.            The first ground of appeal advanced on behalf of the Respondent is that the Judge was wrong to treat the amendment application as a re-labelling exercise whereas in truth it added a new cause of action.  That distinction is now well settled for the purposes of considering whether or not to grant an amendment and can be traced back to the seminal judgment of Mummery J (President), as he then was, in Selkent Bus Company Ltd v Moore [1996] IRLR 661.

8.            Dealing with that challenge to the Judge’s ruling, it is right to say, as Mr Egan points out, that there are factual matters pleaded in the Form ET1 which might give rise to the conclusion that this was a mere re-labelling exercise.  However, it seems to me that the difficulty with that approach lies in the absence of a causative link between the primary facts pleaded and the consequences under the DDA now contended for by way of amendment.  It is that part of the appeal following the approach of the Court of Appeal in Housing Corporation v Bryant [1999] ICR 123 which, it seems to me, must succeed.

9.            The result is that as to the first amendment, particularly that on diverse dates in the period 2002 to May 2009 the Respondent breached the Claimant’s agreed terms and conditions of employment by increasing her workload, that is said to be a breach of sections 3(a)(1), 5 and 4(a)(1) of the DDA, the Employment Judge was wrong to allow that amendment on the basis that is was a mere re-labelling exercise, particularly in circumstances where he has not addressed the limitation issues arising from that period of time.  It was argued on behalf of the Claimant that the complaint made in relation to that period was, in effect, a continuing act of disability discrimination.  The Judge plainly gave no ruling on that aspect of the claim; indeed, he said that the matter should be re-listed for a further pre-hearing review on that limitation question.  That is a further unsatisfactory aspect of the first amendment permitted by the Judge.

10.         In these circumstances, I shall allow the Respondent’s appeal in relation to paragraph 1 of the judgment insofar as a claim of disability discrimination under the Act, however framed, relates to the period 2002 until May 2009.  The amended pleading, of course, contains the necessary averment as to the nature of the disability, which is the second sentence of paragraph 1.

11.         However, I take a different view in relation to paragraphs 2 and 3 of the judgment.  Paragraph 2 raises the complaint that on 1 June 2009 the Respondent’s Practice Manager Mr Pink refused the Claimant’s request to reduce her workload and in so doing failed to make a reasonable adjustment.  As to paragraph 3, it is alleged that Mr Pink behaved aggressively towards her and that amounted to harassment under section 3(v)(1) DDA.

12.         The factual basis for those two complaints is plainly set out in the Form ET1.  That is against the factual background that the Claimant avers: first, that she suffered from neurosarcoidosis and, secondly, and in particular, that she was diabetic and that as a result of her increased workload she could not even take time to have a sandwich and it is well known that regular meals are essential for those who suffer from diabetes.

13.         Whether or not paragraphs 2 and 3 of the judgment amount to a re-labelling or a new cause of action does not appear to me to be material because the Judge made a finding at paragraph 24 that, so far as the events of late May and June were concerned, he would grant an extension of time in respect of those matters, the Form ET1 having been lodged on 11 September and the time involved being short.

14.         Mr Wilson takes the point that the amendment application was not made until 12 January 2010 and that no explanation was advanced below, indeed no oral evidence was given, for the delay in making that application.  That is plainly a discretionary factor to take into account but it does not appear to me to be fatal to the Judge’s exercise of discretion that he made no express finding on that aspect.

15.         Even if it were an error of law, and accepting Mr Wilson’s contention that it is, then the result would be that this part of the judgment was set aside.  At the request of both parties, I would then exercise my discretion on the amendment application.  I am bound to say that even in the absence of explanation for the delay between the lodging of the Form ET1 in September and the amendment application in January 2010, looking at the balance of hardship I would allow amendments 2 and 3.  It seems to me that they will not materially increase the time estimate for the full merits hearing so that there will be no great increase in cost to the parties and, in particular, the Respondent.  The Claimant will be deprived of her opportunity to pursue a complaint of disability discrimination and it seems to me that since the factual matters relied on are all set out in the Form ET1, no further evidence will be required from the Respondent.  Thus, looking at the matter overall, I am satisfied that the justice of the case requires that paragraphs 2 and 3 as formulated should be permitted.

16.         Mr Wilson took a further point that the terms of the amendment were not properly set out in the letter of 12 January 2010.  I agree with that submission so far as paragraph 1 of the judgment is concerned, but I am satisfied that the nature of the case on paragraphs 2 and 3, as set out in that letter, has simply been more accurately summarised by the Judge at paragraphs 2 and 3 of his judgment, no doubt having had the advantage of submissions on both sides.

17.         It follows, in my judgment, that this appeal should be allowed in part; the first and third sentences of paragraph 1 of the Tribunal judgment are set aside.  The remainder of paragraph 1 and paragraphs 2 and 3 are upheld on appeal.