United Kingdom Employment Appeal Tribunal

Appeal No. UKEAT/0363/12/SM

 

 

EMPLOYMENT APPEAL TRIBUNAL

FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8JX

 

 

At the Tribunal

On 17 October 2012

 

 

 

Before

THE HONOURABLE MR JUSTICE LANGSTAFF (PRESIDENT)

(SITTING ALONE)

 

 

 

 

MR J M G CHARLES APPELLANT

 

 

 

 

 

 

KUEHNE & NAGEL LTD RESPONDENT

 

 

Transcript of Proceedings

 

JUDGMENT

 

 

 

 

 

 

 

 

 

APPEARANCES

 

 

 

 

 

For the Appellant	MR PAUL DRAYCOTT (of Counsel) Instructed by: Russell Jones & Walker Solutions 1st Floor St James House 7 Charlotte Street Manchester Lancashire M1 4DZ
For the Respondent	MR RICHARD POWELL (of Counsel) Instructed by: Shoosmiths Solicitors 7th Floor 125 Colmore Row Birmingham B3 3SH

 

 

SUMMARY

PRACTICE AND PROCEDURE – Amendment

 

ET1 alleged unfair dismissal (unfair selection for redundancy), and direct discrimination (because of disability) arising out of the employer including two periods of absence caused by the disability when scoring sickness absence in the selection process. The Claimant later applied to add claims of direct and indirect discrimination, discrimination arising from disability and harassment, focussed principally on aspects of his treatment in the two three years prior to dismissal, which the Employment Tribunal was entitled to think had no true casual link to the redundancy selection.  It rejected the amendment (except where clearly linked to the time of selection), relying on Selkent v Moore, and the absence of any explanation for the lateness. A sustained argument that European legislative material and case-law showed such an emphasis on rooting out discrimination in any shape or form that the ET should have allowed the amendment was not accepted. This was said to be an error of law, as was an arguable rejection by the ET of paying regard to the policy of the law in exercising its discretion. Held: properly read, the ET judgment could not be interpreted to mean that the ET had not had in mind the underlying policy imperatives. The exercise of discretion was not flawed. In any event, if it had been for that reason, the Employment Appeal Tribunal would have reached the same conclusion.

 

THE HONOURABLE MR JUSTICE LANGSTAFF (PRESIDENT)

 

1.              At a pre-hearing review held in Birmingham (on 18 January 2012) Employment Judge Cocks refused an application made by the Claimant to amend his claim. The Claimant appeals.

 

2.              The original claim as set out in the ET1 was made on 23 June 2011. The background to it was this. The Claimant had been employed on 1 December 2008 until 6 April 2011 as a large goods driver. He had a road accident on 5 January 2009. In consequence of that he became disabled. The employer had a downturn of work which required selection from amongst their staff of those who were to be dismissed by reason of redundancy. The Claimant was one who was selected. He claimed his selection was unfair.

 

3.              In his claim of 23 June 2011, he began with the words:

“I believe I have been unfairly selected for redundancy.”

 

4.              He also claimed that he had been directly discriminated against by reason of his disability.  By using the word, “direct” he was thus appearing to disavow reliance upon indirect discrimination, discrimination arising from disability, harassment by reason of disability or discrimination by failing to make a reasonable adjustment. 

 

5.              Further and better particulars of his claim were advanced on 15 September 2011. They were described as being further and better particulars of the claim that had already been made in the ET1 and said, somewhat speciously, that they were to be read alongside the original submissions as giving further and better particulars of each pre-existing claim. In those particulars, the Claimant set out details of his disability, and from paragraphs 5 until 12 complained of the way in which he had been treated over the period after his return to work following the accident in November 2009 until the time of the redundancy selection exercise in April 2011. At paragraph 10, he set out five specific complaints, but they were exemplars and not a comprehensive list of all that he said he had suffered. 

 

6.              In paragraph 13 he returned to the redundancy selection which might be thought to have been at the heart of his ET1 and at paragraphs 14 to 16 to the question of unfair dismissal.  From paragraphs 17 to 19 he alleged discrimination in failing to make reasonable adjustments and at paragraphs 20 to 21 harassment, at 22 unfavourable treatment arising out of disability and at 23 indirect discrimination.

 

7.              The alleged failure to make reasonable adjustments complained about the length of the shifts which the Claimant had been required to work, the distance he had been required to drive and the suitability of the load for someone with his physical restrictions to handle. In addition he complained that the employer should have disregarded his disability related absences in considering his dismissal.  As to that, it is common ground between the parties before me today that whereas the initial dismissal was not one which took into account that those sickness absences had been occasioned by disability the appeal treated the Claimant as though they had been and ignored them when calculating his total absences.

 

8.              It is plain that the Claimant’s solicitors were aware of the risk that the voluntary further and better particulars might be considered to contain new claims for they said in a covering letter that they did “no more than clarify” the existing claim.

 

9.              The Tribunal considered that an amendment to the ET1 would be required if the factual contentions in the further and better particulars were to be advanced at the hearing. In paragraph 5 the Tribunal considered whether the proposed amendments were new and fresh claims or whether they were, as the solicitors had contended, merely clarifying existing claims. It came to the former conclusion. In doing so, the Tribunal examined what had been said at paragraph 5.2 of the ET1 that was as follows:

“I believe I have been unfairly selected for redundancy.

The criteria used made reference to my absence following a work related road traffic accident that resulted in me becoming registered as permanently disabled.

The company, although requested, refused to take reference from any occupational health advisers in relation to my disability and related absence.

At each stage of the selection and appeals procedure used to dismiss me, I disputed the company using my work related injury absence record.

I also disputed records claimed to relate to my capability to perform my duties, these had not previously been brought to my attention and, evidence produced did not refer to any duty that it was alleged I had failed to perform.  Some documents initially produced as evidence were withdrawn and subsequent requests to provide copies to me have been refused.

Only the score given to me using a matrix has been identified. I have not been able to determine that I was amongst the lowest scoring and therefore at risk. Requests to see the other scores, but not identities of the employees, has consistently been refused.  This supports my belief that I was not at risk of redundancy and have been directly discriminated against.

The company did not make any genuine attempt to find any alternative work, work offered was unsuitable due to the manual handling requirements that due to my limited physical capability was impossible for me to do.  The company were fully aware of my limitations, in addition the distances to travel to the work offered made it uneconomic and impossible for me to consider.”

 

10.          Before me, as one of his two heads of claim, Mr Draycott sought to argue that the Tribunal should have regarded the proposed amendments, the broad nature of which I have set out, as falling within a general categorisation given by HHJ Serota QC in Watkins v British Broadcasting Corporation UKEAT/0189/12, a Judgment of 20 September 2012, in which he considered a taxonomy set out in Harvey Part P1 at paragraphs 311 to 312, as being amendments which added or substituted a new cause of action but which were linked to or arose out of the same facts as the original claim. The passage in Harvey draws a distinction between that head, and amendments merely designed to alter the basis of the existing claim but without purporting to raise a new distinct head of complaint, on the one hand and amendments which add or substitute a wholly new claim or cause of action which is not connected to the original claim at all on the other.

 

11.          The Tribunal should, he submitted, have regarded this as in the former category. It appears to have regarded it rather as introducing a wholly fresh claim. The Employment Judge summarised it in this way at paragraph 10:

“What Mr Charles is complaining about in his claim form is his selection for redundancy; a failure to offer him suitably adjusted alternative work before dismissing; and the dismissal itself.  What has been put cannot be read, even on a very liberal reading, as covering events going to 2009 except as they may have affected the selection for redundancy.”

 

12.          At paragraph 11 she added that the further particulars were clearly substantial alterations which added to the existing claim by way of new heads of claim based on allegations going back to January 2009 following the Claimant’s road accident and his return to work.  She did not analyse that under the three heads suggested by Harvey and adopted by HHJ Serota.  In my view she was not required to do so. Such clarifications may be useful as a means of comprehending a set of facts but they are no in sense compelled by statute or the framework of rules which underpin the exercise of a discretion particularly a discretion such as this which has to consider all the circumstances of the case and therefore one in which the weight given to particular factors will vary very considerably between one case and another.

 

13.          The Tribunal then had to determine, in the light of its conclusion that there were here wholly new heads of claim, whether it should permit the amendments. As to that, the Tribunal had what it described as an erudite, comprehensive and detailed summary of European law presented to it by Mr Draycott which it understood as being;

“To demonstrate that such would be a relevant consideration for me, in the sense that it would be wrong to deny the claimant the exercise of rights given to him under EU law by not permitting his amendments. He reminded me of the supremacy of EU law and therefore the importance of allowing all the discrimination heads of claim to go ahead.”

 

14.          That importantly is the first paragraph of three in which the Employment Judge set out the European submissions which Mr Draycott was making. That her understanding of the argument addressed to her was not in any sense in error, may be confirmed by the submission made on paper to me by Mr Draycott at paragraph 38 of his skeleton which argued that the Appellant’s amendment application should have been allowed because to do so would recognise the public policy objectives of the Framework Directive coupled with the EU principle of effectiveness.

 

15.          At paragraph 20 she set out the law and case law which Mr Draycott had relied upon for making those submissions to her, and at paragraph 21 said:

“In summary, Mr Draycott’s paragraph 19 contends that: ‘the United Kingdom’s obligation to eradicate disability discrimination as prohibited under the Framework Directive and Article 14 of ECHR 1950 must be an important factor in determining whether or not an amendment to add further allegations of discrimination should be allowed’.”

 

16.          Then there followed this:

“22. Mrs Blackwell’s submissions (she was the solicitor appearing for the Respondent) were succinct and to the point. She says that the proposed amendment does not concern Mr Charles’ rights directly under EU law.  She said that no part of EU law was being raised as the amendments sought concerned domestic legislation.  There is no issue of direct effect or any suggestion that the Equality Act does not comply with EU law. Therefore she submits there is no need to go beyond what is in domestic legislation.

23.  I accept her submission on this.  I see no direct relevance in the EU or Human Rights authorities to which I have been taken by Mr Draycott to this amendment application.

24.  In the circumstances of this case, Mr Charles is not being denied the right to pursue a disability discrimination claim in its entirety. The question for me is whether by applying domestic legislation and the guidance given in cases such as Selkent [Selkent Bus Company Ltd T/A Stagecoach v Moore [1996] ICR 836] TGWU v Safeway Stores Ltd [2007] UKEAT/0092/07/LA and Ali v The Office of National Statistics [2005] IRLR 2001 I am going to allow the amendments which contain new heads of claim.”

 

17.          She then dealt with the application of the principles arising from those cases which she had identified and concluded (in a passage which is impeccable but for, it is suggested, the failure to deal again with any general principle of the importance of eradicating discrimination) that the claims which related to the earlier incidents going back as far as November 2009 were significantly out of time and no clear causal link existed between those and the later redundancy selection process and dismissal. Having said that, the Judge said:

“If there is, (that is a causal link) the Claimant will not be prejudiced as claims relating to the redundancy and dismissal are already extant. The prejudice which would be caused to the Respondent in allowing Mr Charles to proceed with his new allegations and claims would be significantly increased costs, having to defend a much larger claim and the calling of additional witnesses to give evidence in respect of matters which are alleged to have occurred nearly two years ago.”

 

18.          She weighed the prejudice to the Respondent against that caused to the Claimant and concluded that the balance of prejudice was such that, when taking into account the fact she had been given no explanation as to why the claims had not been made earlier or included in the claim form even if they were even then potentially out of time, the amendments relating to earlier failures to make adjustments, indirect discrimination and harassment should not be permitted to proceed.  She did, however, accept the further and better particulars insofar as they sought to amend the unfair dismissal claim and the direct discrimination claim by raising discrimination arising from disability and a breach of the duty to make reasonable adjustments in relation to the redundancy selection procedure and the alleged failure to consider and offer suitable alternative employment and in dismissing the Claimant. She thus drew a careful distinction between those matters which were apparently closely related in time or cause to the redundancy selection procedure, and those which it appeared to her were not.

 

19.          What Mr Draycott has argued before me is that the European legislation and case law demonstrates repeatedly the central importance which should be placed upon the elimination of discrimination wherever it may exist and the need to ensure that domestic provisions and their application are effective to that end. Thus, he took me to the case of Pfeiffer v Deutsches Rotes Kreuz, Kreisverband Waldshut eV [2005] ICR 1307 CJEU; a decision of the Court of Justice of the European Union, see paragraphs 110 and 115; the case of Unibet (London) Ltd and another v Justitieskanslern [2007] 2 CMLR 30-725 and Peterbroeck Van Campenhout & CIE SCS v Belgium [1996] 1 CMLR 793 (this for the proposition that a domestic procedural provision which prevented new grounds based on EU law being raised 60 days after an initial claim had been entered could in certain circumstances be held to offend against central principles of European law).

 

20.          The need to ensure that equality was honoured in the observance and not simply in the rhetoric was emphasised by Maruko v Versorgungsanstalt der deutschen Buhnen [2008] 2 CMLR 32 in which the Advocate General had observed that equal treatment was the most longstanding and well established principle of the community legal system along with freedom of movement:  it was a principle which had been repeatedly supplemented and strengthened and had become a general framework for preventing unjustified discrimination and promoting genuine effective equal treatment.

 

21.          The approach to be taken was identical to that, he submitted, taken by reference to the European convention on fundamental rights and freedoms as demonstrated by the decision in Timishev v Russia [2007] 44 EHRR 776:

“Racial discrimination is a particularly invidious kind of discrimination and, in view of its perilous consequences, requires from the authorities special vigilance and a vigorous reaction.  It is for this reason that the authorities must use all available means to combat racism.”

 

22.          Domestic law, he submitted, fully accepted these approaches, see the speech of Lord Steyn in Anyanwu v Southbank Student Union and another [2001] ICR 391 HL. There at paragraph 24 he identified a bias in favour of a claim being examined on the merits and demerits of its particular facts where it involved discrimination as being a matter of being high public interest.  Khan v Trident Safeguards Ltd and Others [2004] ICR 1591 CA was another example of the approach which needed to be taken, see per Arden LJ at paragraph 88 and Buxton LJ at paragraphs 108 and 110. 

 

23.          He emphasised that the obligations upon member states had strengthened since the Equal Treatment Directive was first made. Any court exercising a case management or decision making power in a case involving proscribed discrimination must bear in mind and take account of the need to ensure that as a matter of legal policy and social policy discrimination be identified and eliminated. 

 

24.          These arguments were met on paper by Mr Powell, who appears for the Respondent, pointing out that where rights said to be rights of European Union law are concerned, a European obligation may have effect in domestic law, first if it is directly effective and secondly if, not being directly effective, there is scope to interpret the provision concerned to the fullest extent possible to achieve the purpose of the European provision - an obligation which may be described as the interpretative obligation; see for domestic examples Pickstone v Freemans Plc [1989] AC 66 and Litster v Forth Dry Dock & Engineering Co Ltd. [1990] 1 AC 546.

 

25.          If domestic legislation enacting the State’s obligations to comply with a Directive or Article of the Treaty was incompatible with the Treaty, a declaration could be sought to this effect.  He submitted that domestic legislation was not open in the current context to any such objection.  He argued that English law contained all that was needed. The cases particularly referred to by Mr Draycott all had to be seen in their particular context which generally was the failure of the domestic legislation of the jurisdiction concerned to implement a requirement of European law or to grant effective relief. 

 

26.          He complained about the breadth of Mr Draycott’s argument as exemplified by his paragraph 38.  He argued that the Judge here was fully entitled to take the course she did.

 

Discussion

27.          I have no doubt that as a matter of approach and policy the courts of the UK must strive to ensure that discrimination in whatever form, on any of the grounds proscribed in European legislation, are identified and eliminated. That general statement, however, does not seem to me to deal with the particular issues in this case.

 

28.          The Judge had understood Mr Draycott to be arguing in effect that because of the importance of the policy objective, the amendments which Mr Charles sought should be allowed. As to that, she had in mind in her paragraph 22 appropriately and succinctly the fact that there was here no available argument that the rights identified by Mr Draycott were directly effective. Mr Draycott accepts here that they are not. 

 

29.          Secondly, the European case law emphasises; (see the decision of the Court of Appeal Criminal Division in The Crown v Budimir and Another [2010] EWCA Crim 1486 per the Lord Chief Justice) the principles of equivalence and effectiveness. The principle of equivalence does not apply here to assist the Claimant since a person in his circumstances not alleging any relevant discrimination would be treated no differently. Mr Draycott did not contend that that principle was broken. The principle of effectiveness again is one which is expressed (see Eco Swiss China Time Ltd v Benetton International NV [2005] CMLR 816) as ensuring that procedural and legislative rules do not render it difficult or effectively impossible to rely upon European derived rights.  It cannot be suggested that a decision to grant or refuse an amendment where the effect of the amendment, if granted, would be to permit the hearing of claims which were out of time would render it difficult or effectively impossible to rely upon the right not to be discriminated against, which was the right asserted in those claims.

 

30.          Thus viewed, the Employment Judge’s paragraph 22 refers back, as I read the Judgment as a whole, to the totality of Mr Draycott’s submissions, in particular the submission she understood to have been made to her as summarised in paragraph 19. When she accepted the submission made by Mrs Blackwell, she might on one reading of the Judgment have been indicating that she accepted the entirety of Mrs Blackwell’s submissions and thereby rejected the entirety of Mr Draycott’s. If so, then it might be said that she was rejecting not only the arguments made in respect of direct effect, equivalence and effectiveness, if indeed they were made, and the absolute nature of the argument at paragraph 19, but also the submission that the obligation to eradicate disability discrimination was a factor in determining an application for an adjournment.

 

31.          But there are some difficulties, as I see it, in accepting that by doing so the Judge here left out of account a consideration to which she should have but did not pay regard. She did not say that she saw no relevance in the European Union point but no “direct relevance”. She carefully avoided saying it was un-important to bear in mind that the underlying claim was one of discrimination. She went on to apply domestic law and legislation which itself fully recognises the European imperative to which Mr Draycott had been referring. The case of Ali v The Office of National Statistics [2004] EWCA Civ 1363 was a claim of victimisation and discrimination on racial grounds, yet the Court of Appeal in its conclusions did not specifically identify the need to eliminate race discrimination as requiring separate expression. It is axiomatic that a Judge in an Employment Tribunal will take into account the nature of the underlying claim. Indeed it might be said the legislation as to the time limits itself views discrimination claims differently and more favourably than non-discrimination claims, in that in the former the Tribunal has a jurisdiction to extend time if it is just and equitable to do so, whereas in the latter only if it was not reasonably practicable to submit the claim in time.

 

32.          Accordingly, as it seems to me, the Judge here would have had in mind the importance of eliminating disability. But that did not centrally deal with the problem before her. The fact that a claim is in respect of disability or race or sex is no reason in itself to allow a claim to extend time because it is just and equitable to do so if the other circumstances of the case are such that it would not be.  I therefore reject the submission that here the Judge was not aware of and did not, in deciding to take account of all the circumstances and balancing the injustice and hardship, inevitably take account of the nature of the claim which underlay the application. 

 

33.          As to her approach to the test set out in Selkent that 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 Tribunal took into account that the Claimant already had a disability discrimination claim relating to the redundancy and dismissal process; that was at paragraph 29 quoted above.

 

34.          What Mr Draycott says here is that there was an error because the Tribunal appeared to look both ways in its findings. It stated that there was no clear causal link between the incidents and the later redundancy selection process and dismissal, but then in next sentence beginning with the words, “if there is” appeared to contemplate that might be the case. He complained further that following those three words the Tribunal took into account the fact that claims relating to redundancy and dismissal were already extant without noting that a strike out application had been proposed by the Respondent in respect of those claims. That, he submitted, was and should have been a relevant consideration for the Tribunal. If the amendment had been allowed there would be no risk of a strike-out. If there was a strike-out then a discrimination claim might not be heard and the policy advanced by Lord Stein in Anyanwu would be defeated. 

 

35.          I reject these submissions. First, the further and better Particulars are carefully drafted by lawyers.  No causal link as might have existed between the allegations up to paragraph 12 and the selection for redundancy and dismissal appears. It is not asserted, though it might have been, that the employer here was waging a deliberate campaign against the Claimant to get rid of him from employment because of his disability. Rather, as Mr Powell pointed out, significant aspects of bad faith were alleged but, as he would submit, significantly no wider than set out in paragraph 13 of the further particulars.

 

36.          It seems to me that the Tribunal was fully entitled to come the view that no clear causal link had been alleged. The claims are, of course, a matter of record on paper and the finding appears obvious, but in the exercise of the caution which judges ought rightly to have when expressing absolute view points it is often appropriate to contemplate what might be the result if wrong upon a first conclusion. That is the way in which I read the words, “if there is”. There remained, as has been demonstrated in the argument before me, a theoretical though slim possibility that there might ultimately be some link if, for instance, the allegations made carefully in paragraph 13 were sought to be bolstered by reference to other malicious behaviour against the Claimant. It is not a case of looking in two different directions, but rather saying “anyway, the result would be no different even if you’re right”.

 

37.          The second point that Mr Draycott takes was that the Tribunal had relied upon the fact that the Claimant already had a disability discrimination claim. He argued that the Tribunal placed too much weight upon the fact that the Appellant retained his original claims in respect of dismissal and the selection for redundancy. Underhill J in Evershed v New Star Asset Management [2009] UKEAT/0249/09 observed at paragraph 34 that it would only be material if the difference made by the amendment would be marginal.  It was pointed out in the course of argument that in the seminal case of Selkent v Moore the Employment Appeal Tribunal had applied the principles it had expressed to the case before it and had allowed the appeal so as to reverse a Tribunal Judge who had granted an amendment. Part of the reasoning, see page 845, was that the refusal of leave to amend would not cause hardship to the applicant:

“As already explained, his originating application was presented in time. It is a valid application. It can proceed to a hearing […] The refusal of leave does not prevent the applicant from pursuing his case for unfair dismissal, he may pursue it and he may win it.”

 

38.          That case has, at least for the principles it contains, been endorsed by the Court of Appeal since in Hammersmith & Fulham London Borough Council v Jesuthasan [1998] ICR 640, a composition including Mummery LJ himself, and been considered and endorsed in the Ali case to which I have already referred.  Although there has to be caution in arguing from the circumstances taken into account in one case to those in another, this at least demonstrates that there seemed to the Court of Appeal to be no obvious problem in referring to the fact that claim if un-amended could still proceed.

 

39.          There is some difficulty, logically, in seeing the immediate relevance of the fact that the un-amended claim would continue, although it may, as observed during the course of the hearing, be an example of what colloquially might be expressed in these terms:

“It is not as if he could not bring a claim about what had really concerned him.”

 

40.          It may also be that if the failure to amend would lead to the loss of a claim that might be a matter of relevance in balancing prejudice and hardship. In that sense, I do see a real relevance in considering whether there is a continuing claim or not. This is a reflection of the argument put to me by Mr Draycott as to the existence of the strike-out application. In the particular circumstances of this case, however, the Employment Judge did permit those particulars which related to the process of selection for redundancy to be added to the claim. Accordingly, the risk that refusal of the amendment might lead to the failure of the underlying claim was not a real one. 

 

41.          I remind myself of the principles which I must apply to the decision of this Tribunal.  As Mummery LJ said in the Jesuthasan case at the start of his Judgment:

“It is unusual for an appeal from an interlocutory order of an Industrial Tribunal to reach this court.  An appeal from an Industrial Tribunal to the Employment Appeal Tribunal only lies on a question of law.  An appeal from the Appeal Tribunal to this court may only be brought on a question of law and with leave.  Interlocutory orders are made by an Industrial Tribunal under the Industrial Tribunals (Constitution and Rules of Procedure) Regulations 1993 … which confer broad discretions on Tribunals in procedural matters.

The exercise of a wider discretion rarely gives rise to a question of law unless there is a reasonable prospect of showing that the Tribunal has misdirected itself in law, erred in principle or arrived at a decision which is plainly wrong.  Leave to appeal to this court will not be granted against the exercise of a discretion.”

 

42.          Although what he says is cast in respect of appeals to the Court of Appeal, he identifies there the approach which must be taken to identify an error of law in the exercise of a discretion. It would be rare that there is one.

 

43.          Here, in summary, there was in my view, no error in the Employment Judge concluding that the balance of prejudice was one which lay in favour of the Respondent and against the amendments which are in issue.  She was also entitled to regard this as not being a case where different labels (denoting different heads of claim) were applied to essentially the same facts. By contrast, where facts are put in issue which are completely different from the facts previously in issue, then it is not difficult to see why a Tribunal might exercise its discretion not to permit those facts to be established.  It may still technically be open to the litigant to raise a fresh claim in respect of them although that may in circumstances such as these ultimately be illusory.

 

44.          Having identified whether the claim is truly a new or fresh claim or one in which the facts are little different, a Tribunal then has to approach the exercise of its discretion.  It will not be wrong to do so by relying upon the statements of principle derived from Selkent v Moore. Ali v The Office of National Statistics thought there was no distinction to be made between balancing hardship and injustice as in Selkent and applying the just and equitable test which was discussed in that case. “Just and equitable” is, of course, the basis upon which a Tribunal would decide to grant or refuse an application for extension of time for a totally fresh claim. The approach is, therefore, likely to be very similar in determining whether to grant an amendment as it is to permit a claim to be raised out of time, though it must always be remembered that the situation is not identical, the discretion is a wide one and there are no particular time limits that apply to the exercise of the discretion itself. In a case involving discrimination, I would expect the court to have well in mind that discrimination should be eradicated.  I do not see for the reasons I have given that this Tribunal deliberately ruled that consideration out of mind here, though in the circumstances it does not seem to have been determinative in any event.

 

45.          If I have been wrong in my interpretation of that which the Tribunal said here at paragraph 23 I would have had to consider an argument which Mr Powell makes on paper that the decision was, in any event, plainly and unarguably right or exercise my own discretion. In that event, in the particular circumstances of this case I would, essentially for the reasons given by the Tribunal Judge but expressly taking into account the imperative to eliminate discrimination, nonetheless have come to the same conclusion as did she.

 

Post-script

46.          This case was listed for half a day. Listing in this Tribunal includes time for judgment.  The court was presented with 40 authorities in a ring file binder. The industry of both parties is to be admired but I would hope that in future cases careful regard is paid to the terms of the practice statement of 17 April 2012. There is a real practical significance to observing the practice there set out. Cases should be arranged chronologically in a case such as this; that is important to see how the law is developing, particularly in the light of the submissions made to me that the law has developed.

 

47.          Secondly, a number are of significant length.  It is essential in this jurisdiction, as in the Civil Courts generally, that passages to be relied upon are not only identified in the skeleton arguments but also highlighted, sidelined or otherwise clearly indicated. 

 

48.              Thirdly, careful regard needs to be had to the number of authorities cited, bearing in mind that each should stand for a distinct principle of law and that unless the principle is controversial, it is generally unnecessary to have a second case covering the same principle or merely exemplifying its application.

 

49.              Litigants are reminded that if a bundle of more than ten cases is submitted, they may be called upon at the end of the hearing to justify the extent of the citation.

 

50.               I hope that those words, which are directed far more generally than at the parties in this case, are taken to heart by those who read the report of this case and that future practice, at least for those parties who are represented, accords fully with the practice statement.  That said, I express my gratitude to both counsel here for the careful way in which they have set out their claims, which has in the event made my task rather easier than it would have been notwithstanding the plethora of authorities.

 

51.              A further appeal point was raised which was rather lost by the concentration of the argument upon the matters I have already described; that was that the Tribunal concluded at paragraph 32 that the further and better particulars insofar as they seek to amend the unfair dismissal claim and the direct discrimination arising from disability and the breach of the duty to make reasonable adjustments in relation to the redundancy selection procedure, the alleged failure to consider and offer suitable alternative employment and the dismissal are accepted.  The proposed amendments which seek to make new claims and are set out at paragraph 17, 20, 21 and 23 are not accepted. 

 

52.              There is no separate reasoning given in respect of those. Paragraph 17 deals with the return to work after accident and is covered plainly by the Tribunal’s earlier findings but not, arguably, at paragraphs 21 and 23, both of which clearly relate to the behaviour of the Respondent at the time of the redundancy procedure. The first alleges that it came within the definition of unlawful harassment as defined by section 26 of Equality Act 2010 to adopt a scoring system which penalised the Claimant for sickness absences for themselves caused by the way in which the employer had behaved towards the client by overworking him, summarising and secondly, indirect discrimination in respect of selecting by a system which penalised sickness absence and thereby subjecting him to a PCP, putting him at a disadvantage compared to others which was not a proportionate means of achieving a legitimate aim and therefore are unlawful.

 

53.              I accept (and Mr Powell does not seek to argue strenuously to the contrary) that there is no developed reasoning in respect of not allowing those two claims. The tenor of the judgment elsewhere is that those claims which are linked to the process of redundancy selection should be allowed by amendment. Accordingly, it seems to me that in this respect alone, and perhaps because the focus of the Employment Judge was understandably upon the arguments of greater significance raised in respect of European law, the Judgment does not set out the reasoning adequately.

 

54.              Accordingly, that matter must be remitted to the Employment Judge for either further explanation or reconsideration of her view in the light of these observations.

 

55.              In the light of counsel’s submissions as to the scope of the remission, I direct that in the first place the matter be considered by the Employment Judge at a forthcoming case management discussion for her to give such directions or orders as appropriate including the extent to which submissions or further submissions are required from the parties. It seems to be wrong to take too much time in dealing with these issues, which in the overall scope of the case would be unlikely to be a proportionately justifiable expense.