|At the Tribunal|
|On 26 February 2018|
HER HONOUR JUDGE EADY QC
(2) MS L LANDOR
Transcript of Proceedings
|For the Appellant||MR SALEEM PATKA
(The Appellant in Person)
|For the Respondents||MR THOMAS LINDEN
(One of Her Majesty's Counsel)
BBC Employment Law Department
BC2 A6 Broadcast Centre
201 Wood Lane
PRACTICE AND PROCEDURE - Amendment
Application to amend - race discrimination - complaint of unequal pay - whether direct or indirect race discrimination
The Claimant - acting in person - had put his case of race discriminatory unequal pay as a complaint of direct discrimination, albeit relying on general statistical evidence in support. After taking legal advice, he subsequently sought to amend: to add details about a subsequent decision on his internal grievance; to add a claim of indirect discrimination in the alternative; to include a further basis for his complaint of direct discrimination. The ET permitted the application to amend in respect of the internal grievance but only to the extent this was background information; it otherwise refused the amendments, concluding these were not simply different labels but added substantively new causes of action and arguments that had been raised too late (the parties had fully prepared their respective cases on the basis of the claim as already pleaded) and had already led to the postponement of the listed Full Merits Hearing; in the circumstances, the balance of prejudice supported the refusal of the application. The Claimant appealed.
Held: dismissing the appeal
The ET permissibly understood the application to amend in respect of the internal grievance to have been limited to adding an update to the factual background; on this basis the Respondents had not objected to the amendment and it had been allowed. That was an entirely appropriate exercise of the ET's case management powers and there was no proper basis of challenge.
As for the indirect discrimination case, the ET was entitled to conclude this was not previously identified by the Claimant as part of his claim. Although the fact that it might still be in time was a potentially significant factor (Gillett v Bridge 86 Ltd UKEAT/0051/17 applied), the ET had permissibly taken the view that whether or not there was a continuing act could only be determined at the final Merits Hearing. It was, moreover, open to the ET to conclude that the different issues raised by the indirect discrimination claim meant the balance weighed against hearing that together with the existing direct discrimination claim, in particular given the prejudice caused to the Respondents.
Similarly, the ET had been entitled to see the new argument raised in respect of the direct discrimination claim as giving rise to substantively new issues for determination such as to cause unfair prejudice if this amendment was permitted. To the extent the Claimant was only seeking to make this amendment to explain how he argued that the burden of proof shifted to the Respondent, that remained open to him given he had always made it clear he intended to rely on the statistical evidence to this purpose.
HER HONOUR JUDGE EADY QC
The Relevant Background and the ET's Decision and Reasoning
"1. The complaint is of direct discrimination because of race. The Claimant gave the following further particulars of his complaint:
1.1. The complaint is of direct, not indirect discrimination. The allegation is that the First Respondent paid employees (including the Claimant) in World Service Languages in London less on average than their equivalents in Network News in London because the majority of them were not White British. The Claimant contrasts this with the employees in Network News, the majority of whom are White British. …"
"The Claimant's case … is that on the grounds of race the salary he was offered at the three managerial roles that he held since 2010 was at a lower level than that which was offered or would have been offered to white managers in Network News at the same level doing the same work as him. He says that it was on racial grounds because the decisions as to the level of salary were made in accordance with the policy or practice to pay those in World Service (the overwhelming majority of whom were not white British) at a lower level than those in Network News (the overwhelming majority of whom were white British). His case is that that policy or practice was racially discriminatory because the difference in pay between the two groups was due to the difference in the racial composition of the two groups."
"amend the list of issues in this case to make clear that my complaint of discrimination against the Respondents is a complaint of direct and/or indirect discrimination on grounds of race."
"1. Further background to the claim (paragraphs 10-16);
2. An amendment to the direct discrimination complaints to include a "Danfoss" complaint (paragraphs 17.1 and 18-22); and
3. The introduction of indirect discrimination complaints both under the principles in the case of Enderby v Frenchay Health Authority C-127/92  ICR 112 and more conventional indirect discrimination complaints (paragraphs 17.2 and 23-25)."
"28. Mr Linden stated that he objected to the application to amend in relation to the "Danfoss" complaint, the "Enderby" complaint and the other indirect discrimination complaints based on PCPs, but that he was "fine in relation to" the background elements. …"
"47. … the existing complaints of direct discrimination invite the Tribunal to consider the reasons why the various managers made their decisions in relation to the Claimant's pay and whether or not those decisions were because of the Claimant's race. However, the addition of the proposed additional complaints will considerably expand the evidence which the Tribunal has to consider and the legal arguments that need to be made and is likely to involve the rewriting of witness statements which are currently substantially complete in relation to the existing claim, potentially calling further witnesses and potentially further disclosure and more time required for the Tribunal to hear the claim. That would substantially prejudice the Respondents."
The Relevant Legal Principles
"… 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." (Page 844)
"(a) Is the order made one within the powers given to the Tribunal?
(b) Has the discretion been exercised within guiding legal principles? …
(c) Can the exercise of the discretion be attacked on Wednesbury principles?"
"29. This leads to the weight to be given to the fact that an application to amend is made in time. I accept of course that factor may not be decisive. However, it must be a factor of considerable weight, as Employment Judge Wallis acknowledged when identifying it as an "important factor". This factor is relevant to the Selkent balance of hardship and injustice. The Judge concluded that the Respondent would suffer some hardship and injustice if required to deal with the new claim. However, the Respondent would have been in just the same position if the Appellant had taken the alternative course on 18 July 2016 of issuing a fresh claim. Once again, the logic of this conclusion would require a Claimant to take that course rather than to make a timely application to amend."
"123. Time limits
(1) … proceedings … may not be brought after the end of -
(a) the period of 3 months starting with the date of the act to which the complaint relates, or
(b) such other period as the employment tribunal thinks just and equitable.
(3) For the purposes of this section -
(a) conduct extending over a period is to be treated as done at the end of the period;
(b) failure to do something is to be treated as occurring when the person in question decided on it.
The Claimant's Case
(1) Ground 1: When giving permission to amend to add paragraphs 10 to 16, the ET had failed to recognise that paragraphs 15 and 16 were not "background" but introduced new complaints of direct and indirect race discrimination, arising from Mr Ellis' decision announced on 30 October 2016.
(2) Ground 2: The ET then erred in refusing permission to allow paragraphs 23 to 25 of the amended grounds by (i) failing to recognise that paragraph 16 already included a complaint of indirect race discrimination, and (ii) failing to take this into account when considering whether to give permission to allow complaints of pre-31 October 2016 indirect race discrimination. Moreover, the Claimant's claims related to a series of decisions regarding pay made between 2010 and 30 October 2016. Applying section 123(3)(a) EqA, he was entitled to bring a new claim of indirect discrimination, spanning the full period of time under consideration, and that was a significant factor that the ET ought properly to have taken into account (see Gillett paragraph 29, supra).
(3) Ground 3: The ET further erred by construing paragraphs 18 to 20 of the amended claim as a new complaint when these paragraphs simply set out his argument regarding the burden of proof.
The Respondents' Case
(1) Ground 1: The ET correctly allowed paragraphs 10 to 16 of the amended grounds on the basis that these were relevant background; that was the basis on which the Respondents had agreed to the amendment and that had obviously informed the ET's decision. If it was now being said that these paragraphs raised a new complaint against Mr Ellis' decision then: (i) that was not made clear as being the Claimant's case below, and (ii) the ET rightly rejected the amendment as adding a new claim
(2) Ground 2: In any event, it did not follow that allowing a claim against Mr Ellis' decision meant all other proposed claims should be allowed in by way of amendment. Further, even if the Claimant might still have been in time to make his complaint of indirect discrimination, as Gillett made clear, that was a relevant but not determinative factor. The ET had considered this factor but had not felt able to reach a concluded view that this was a continuing act case - a permissible position for it to take given the case was still being put on the basis of particular decisions taken in relation to the Claimant's pay (in 2010, 2011 and 2015). There were, moreover, other matters the ET had been entitled to take into account, such as the timing of the application given the two previous Preliminary Hearings and the impact on the listing of the Full Merits Hearing.
(3) Ground 3: If the further amendments did no more than make a point regarding the burden of proof, they were unnecessary and the Claimant had suffered no prejudice (it was still open to him to rely on the statistical material to the extent he contended this shifted the burden of proof). To the extent, however, that the Claimant was seeking to say something different (effectively relying on the statistics as a cause of action), the ET had been right to refuse this on the basis that it would significantly change the way the case was being put and would put the Respondents at too great a disadvantage.
Discussion and Conclusions
"17. I contend that at all times since May 2010 the level at which my pay has been set has been caused or influenced by:
17.1. direct discrimination because of race, contrary to section 13 of the Equality Act 2010 (EqA); and/or
17.2. unlawful indirect discrimination in relation to race, contrary to section 19 of the EqA."