SUMMARY
PRACTICE AND PROCEDURE – Amendment
The Employment Tribunal erred in
refusing to allow a new claim (disability discrimination) by way of amendment
when it considered the evidence already exchanged. By definition, since this
was not a mere relabelling, the evidence was not directed to the new claim and
so the Employment Tribunal was wrong to include its assessment of the weakness
of that claim in its exercise of discretion under Selkent. In
any event it was wrong to hold that the Claimant had produced no such evidence,
when he plainly had. The Employment Tribunal did not cite the Claimant’s
argument or consider prejudice to him.
Remitted to the same Employment
Tribunal to hear again now with an order for the Claimant to provide evidence
on the disability claim.
HIS HONOUR JUDGE McMULLEN
QC
1.
This case is about Employment Tribunal procedure in refusing amendments
to include a new claim under the Disability Discrimination Act
and/or the Equality Act (EqA) and a claim under the Public Interest Disclosure Act
(PIDA). It is the Judgment of the court to which all members appointed by
statute for their diverse specialist experience have contributed. We will
refer to the parties as the Claimant and the Respondent.
Introduction
2.
It is an appeal by the Claimant in those proceedings against the
decision of an Employment Tribunal chaired by
Employment Judge Simpson heard at Southampton on
9 January 2012. The Claimant was represented by his wife, who is a
non‑practising solicitor, and the Respondent by
Mr Thomas Cordrey of counsel, as today. The Claimant claimed unfair
dismissal. The hearing was set up to commence for three days pursuant to a
sequence of case management directions given in the region. The claim was
finalised as being of actual and constructive unfair dismissal, notice and
holiday pay pursuant to the order to Employment Judge Pirani at a
hearing on 27 July 2011 at which the Claimant was represented by counsel.
Counsel had indeed been involved in this case right up to
12 December 2011, when he was no longer instructed.
The issue
3.
The issue in this case is the request for an amendment to add claims of
disability and PIDA discrimination. The Employment Tribunal decided to reject
the applications made on the day before the trial and advanced in oral
submissions at the start of the hearing.
EAT procedure
4.
Directions sending this to a full hearing were given by Langstaff P
in the course of a number of orders he made for case management. His original opinion,
which we are sure represented both a view under rule 3(7) as to certain
parts of the appeal having no prospect of success, and a view that there was a
reasonable prospect of success in respect of the amendment point for disability
discrimination, was set up for this hearing. In fairness to
Mrs Woodhouse, who had not seen the President’s reasoning, time was given
and options were discussed with her, but in the end the whole of the case that
she came to present was available to be argued, and no unfairness has been
caused to her. In effect, we have heard a much larger appeal than the
President considered should go to a full hearing, and we have heard her on the
points, although we have not invited Mr Cordrey to respond in respect of
the PIDA bias points that the Claimant raises. In the preliminary orders made
by the President careful time management directions were given, and this case
should have been completed in half a day; in fact, it has run on, but that is
to do justice to the arguments that have been raised before us.
The facts
5.
The simple fact is that deep into the case and on the eve of battle two
new points were sought to be raised. The Tribunal noted that the Claimant
accepts that they were new claims, which are five allegations of disability
discrimination and one PIDA claim. The disability claims were all out of time,
between 8 and 15 months old. The duty under the respective parts of the
legislation is to present a claim within three months, unless it was not
reasonably practicable to do so, in which case a reasonable extension may be
granted under the PIDA legislation. In respect of the disability legislation,
whether the 1995 Act or the EqA, it is within three months or by extension when
it is just and equitable to do so. The Tribunal noted on a number of occasions
that the Claimant was represented by counsel experienced in these matters; not
a trace of a disability arises in the claim form. The Tribunal dismissed the
amendment to the PIDA claim, applying the rather more rigorous legislation
under PIDA. The disability claims were refused, and these are the grounds:
“10. The disability claims are between 8‑15 months out of
time. In applying the just and equitable test the Tribunal has to balance
prejudice to the Claimant in refusing the application against prejudice to the
Respondent by allowing it. It also has to consider whether a fair trial can
ensue.
11. Throughout the proceedings from April to December 2011
the Claimant was represented by experienced counsel and if there was a prima
facie case the Tribunal would expect it to have been raised either during the
course of proceedings or at the case management discussion. Time dims memories
and the Respondent will be seriously prejudiced if it now has to investigate
these new allegations so long after the events. Such disadvantage is likely to
result in a fair trial not being possible.
12. The fact of disability is not admitted by the Respondent and
so it is likely there will have to be a preliminary hearing to determine whether
or not the Claimant is disabled within the meaning of the Equality Act
2010. This will involve obtaining medical evidence and the pleadings will have
to be amended which will involve more delay.
13. Amendments to include new causes of action long after time
limits have expired should be examined carefully. The Claimant’s 142 page
witness statement contains no evidence of disability and as Counsel for the
Respondent observed paragraph 676 of the statement contends there were
never any health issues connected with the Claimant’s job performance. In the
absence of any evidence to support disability the Tribunal is not satisfied the
Claimant has any realistic case to put forward. The time delay is substantial
and further substantial delay will be inevitably if amendment is granted.”
6.
The Claimant appeals against that.
The Claimant’s case
7.
The Claimant contends that the Tribunal gave the appearance of bias in
the decision that it made, and Mrs Woodhouse contends that the treatment
of her was uneven as between her and counsel. As to the claims, the Tribunal
went into the merits of the disability claim, and the Tribunal got wrong its
depiction of the evidence that was before it relating to the Claimant’s
disability by way of Parkinson’s disease. As to PIDA, it was contended that
the timescale was one such as there should be the extension of time under the
provisions of the statute.
The Respondent’s case
8.
As to the disability claim, it is contended that the Tribunal reached
the correct conclusion. It addressed the relevant principles, and if it did
not, then at least the decision is unarguably right.
The legal principles
9.
The legal principles are not in doubt; they are found in the Judgment of
the EAT, Mummery P presiding, in Selkent Bus Co Ltd v Moore
[1996] UKEAT/0151/96, which are as follow:
“Procedure and Practice for Amendments
The rival submissions of the parties state the position at
opposite extremes. Before we state our conclusions on this appeal, it may he
helpful to summarise our understanding of the procedure and practice governing
amendments in the Industrial Tribunal.
(1) The discretion of a Tribunal to regulate its procedure
includes a discretion to grant leave for the amendment of the originating
application and/or notice of appearance: Regulation 13. See Cocking v Sandhurst Ltd [1974] ICR 650 at 656G - 657D. That discretion is usually exercised
on application to a Chairman alone prior to the substantive hearing by the
Tribunal.
(2) There is no express obligation in the Industrial Tribunal
Rules of Procedure requiring a Tribunal (or the Chairman of a Tribunal) to seek
or consider written or oral representations from each side before deciding
whether to grant or refuse an application for leave to amend. It is, however,
common ground that the discretion to grant leave is a judicial discretion to be
exercised in a judicial manner ie, in a manner which satisfies the requirements
of relevance, reason, justice and fairness inherent in all judicial
discretions.
(3) Consistently with those principles, a Chairman or a Tribunal
may exercise the discretion on an application for leave to amend in a number of
ways:
(a) It may be a proper exercise of
discretion to refuse an application for leave to amend without seeking or
considering representations from the other side. For example, it may be
obvious on the face of the application and/or in the circumstances in which it
is made that it is hopeless and should be refused. If the Tribunal forms that
view that is the end of the matter, subject to any appeal. On an appeal from
such a refusal, the appellant would have a heavy burden to discharge. He would
have to convince the Appeal Tribunal that the Industrial Tribunal had erred in
legal principle in the exercise of the discretion, or had failed to take into
account relevant considerations or had taken irrelevant factors into account,
or that no reasonable Tribunal, properly directing itself, could have refused
the amendment. See Adams v West Sussex County Council [1990] ICR 546.
(b) If, however, the amendment sought
is arguable and is one of substance which the Tribunal considers could
reasonably be opposed by the other side, the Tribunal may then ask the other
party whether they consent to the amendment or whether they oppose it and, if
they oppose it, to state the grounds of opposition. In those cases the
Tribunal would make a decision on the question of amendment after hearing both
sides. The party disappointed with the result might then appeal to this
Tribunal on one or more of the limited grounds mentioned in (a) above.
(c) In other cases an Industrial
Tribunal may reasonably take the view that the proposed amendment is not
sufficiently substantial or controversial to justify seeking representations
from the other side and may order the amendment ex parte without doing so. If
that course is adopted and the other side then objects, the Industrial Tribunal
should consider those objections and decide whether to affirm, rescind or vary
the order which has been made. The disappointed party may then appeal to this Tribunal
on one or more of the limited grounds mentioned in (b) above.
(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 are
certainly relevant:
(a) 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 additions 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.
(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 eg, in the
case of unfair dismissal, S.67 of the 1978 Act.
(c) The timing and manner of the
application
An application should not be refused
solely because there has been a delay in making it. There are no time limits
laid down in the Rules for the making of amendments. The amendments may be
made at any time - before, at, even after the hearing of the case. 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.”
10.
It is also worth noting that under the conclusion following the
principles and applying that to the facts of the case, Mummery P said as
follows:
“(4) In our view, the risk of hardship is, on balance, greater
if the amendment is granted than if it is refused. As the new allegations were
made late, it must have been foreseeable by Mr Moore or those advising him
that an adjournment would be requested and would probably have to be granted. That
increases costs, which will probably not be recovered, even if ordered. Further
costs are likely to be incurred if the amendment is made, because the nature of
the allegation will add to the length of the hearing, even perhaps to the
number of witnesses, without necessarily affecting the result or conferring any
additional benefit on Mr Moore.”
11.
As to the right of an appellate court to interfere with an exercise of
discretion, it is clear that this will be rarely exercised; it is a sparingly
used power (see the Judgment of Longmore LJ in Chief Constable of Lincolnshire Police v Caston [2009] EWCA Civ 1298 and the Judgment
of the Court of Appeal in Noorani v Merseyside TEC
[1999] IRLR 184 at paragraphs 34 and 35 per Henry LJ).
Discussion and conclusions
12.
We accept the force of Mrs Woodhouse’s case and prefer her argument
to that of Mr Cordrey. The allegation of bias is hopeless. It is sadly
and frequently made in our jurisdiction for no worthy purpose. The fact that a
solicitor, albeit the wife of the Claimant and not practising, is against an
experienced counsel happens quite often; there is no real disparity. We see
nothing in the allegations against the Employment Judge nor anything to
indicate why the lay members would sit idly by while biased or unfair treatment
was meted out. As to the PIDA claim, this too is hopeless. The jurisdiction
is different. The amendment is regulated by what is reasonably practicable.
It cannot be said it was not reasonably practicable to put this case.
13.
Turning, then, to the disability issue, the Claimant was represented by counsel
throughout. That is an important factor, but once it is described it does
require an explanation as to why at a certain stage the amendment suddenly
cropped up. The Tribunal’s view is that if there were a prima facie case, it would
have expected it to have been raised by counsel at an earlier stage. That is a
judgement on the merits; in other words, it is criticising the Claimant for
opportunism and not advancing a case that is strong. After all, if he had a
good case, it would have occurred to him earlier, particularly, as Mr Cordrey
points out, as he is a nurse. The other points the Tribunal makes are
correctly analysed by Mr Cordrey; there are some seven factors in the
passages we have cited. The delay is important because a delay may make a fair
trial impossible, as contended here.
14.
The Tribunal also considered the fact of disability being not admitted.
Mr Cordrey of course explained to us why that occurred; this matter
suddenly popping up on the day of the trial, he had no chance to take instructions
and for the Respondent to prepare its case on disability. One does not know
what its position would be if the amendment were made, but until it is, nobody
has to address the question of disability under the statute. Until it is made,
it is difficult to criticise or to take account of the fact except as part of a
delay when there may be a contest as to disability. Generally speaking, those
factors that fall within paragraphs 10 and 11 are all matters
for an Employment Tribunal save for the reflection that the case may not be a
good one, otherwise it would have been spotted earlier.
15.
We have difficulty with paragraph 13. It is true that in the
assessment of the balance of hardship and the balance of prejudice there may in
all the circumstances include an examination of the merits – in other words,
there is no point in allowing an amendment to add an utterly hopeless case. But
otherwise it should be assumed that the case is arguable, for this is what
Mummery P said in describing what Tribunal practice should be when an
application is made: where the matter is arguable and of substance, there
should be representations by the parties.
16.
In this case, instead of it being dealt with by a Judge under rule 10,
the matter was dealt with by the Tribunal convened to hear the case. We asked
Mr Cordrey for authority that says that there should be an examination of
the merits, and he was unable to point us to any except the reflection that all
the circumstances should be considered in the exercise of discretion. In our
judgement, paragraph 13 involves the Tribunal in consideration of an
irrelevant matter. This is to examine the strength of the evidence that
supports the now new allegations under the disability statute. It is axiomatic
that if the point is a new point, evidence to that point needs to be adduced,
so that examining the material thus far adduced to support the constructive
dismissal case will only take the Tribunal so far. Once the Claimant wants to
advance a disability claim, he has to assert and draw attention to various
matters that support his case that he is disabled and has the three conditions
necessary for that to survive. Until the matter is allowed into the case it is
strictly irrelevant material.
17.
The defect also with this approach is that the Tribunal has not examined
with as much care as it ought if it were to engage in this exercise the witness
statement of the Claimant. We accept Mrs Woodhouse’s very detailed
analysis said to be advanced under the ground of perversity that the Tribunal
is simply wrong when it finds that there was no evidence of disability and that
on that basis there was no realistic prospect of success. The references she
gave us in her careful written argument are made out; there are many places
where the Claimant himself refers to documents in which Parkinson’s and other
conditions, including the fit certificates, are adduced. In our judgement, it
cannot be said that there is no evidence of disability in the papers he had
adduced until the application was made. The trigger, apparently, for the
change of approach by the Woodhouses, who reflected carefully upon this matter
together, was the receipt of the Respondent’s evidence, in which the Claimant
can see how the Respondent regarded him, and on the basis of that the
Woodhouses decided to seek an amendment on the basis of that amongst other
matters; they were by this stage on their own, not with the help of counsel.
18.
In our judgement, the Tribunal has paid attention to an irrelevant
factor, which is an investigation into the evidence of disability at a stage when
there was no claim of disability. Of course, with more time Mr Woodhouse
should have put forward evidence to support his amendment so that he would be
moving into the trial with his own evidence, but in our judgement there has
been an analysis of the evidence which was not appropriate at this stage.
19.
In any event if that is a powerful conclusion, it is perverse, for there
is indeed evidence of disability. We do not accept the submission of
Mr Cordrey that all the Tribunal is doing here is reflecting on the length
of time that it would take to get the case on. He contends that on its
ordinary reading this is a reflection on delay; we respectfully disagree. The
Tribunal could not be more positive in its assessment of the Claimant’s case.
20.
The question then is, given that the Tribunal was correct in a number of
the factors that it considered but wrong in respect of at least
paragraph 13 and, we dare say, in the early part of paragraph 12, is
the decision plainly and unarguably right? We cannot say that it is. The
Tribunal was quite substantially affected by its view of the merits, and its
view of Mr Woodhouse’s counsel’s view of the merits and of his wife’s. It
is put perhaps rather bluntly, if there were a good case, why had that team not
realised it earlier and put it in? It cannot be said that the Judgment should
stand. We know how difficult it is for an appellate court to interfere with a
matter of discretion, but where irrelevant factors have been considered or a
factor that may be relevant but contains plainly wrong citations cannot stand.
21.
We were invited by the parties to either decide the matter ourselves, or
if we did not have the material, then to send it to a Tribunal. We will take
the latter course. The exercise of discretion is for a Tribunal. There are
difficulties in our way, and we do not have enough material for us to make the
decision ourselves, so this case will go back
Employment Judge Simpson or a different Judge, and it may be that constitution
of the Tribunal, depending on how this matter is most practically to be
organised by the Regional Employment Judge. We have confidence in the
Employment Tribunal, if it is to be constituted as it was before, or in
Employment Judge Simpson to make the decision on the amendment in the
light of what factors must properly be considered.
22.
Review of the President’s order is not pursued, in the light of the
events during the day. The appeal is allowed.
