Mr T Siby v (1) Bank Partners Ltd (2) Epsom and St Helier University Hospitals NHS Trust: 2302788/2016

EMPLOYMENT TRIBUNALS

Case No 2302788/2016

Between

Mr T SibyClaimant

(1) Bank Partners Ltd (2) Epsom and St Helier University Hospitals NHS TrustRespondent

Before

Employment Judge Sage

In person for claimant

Mr Crozier (instructed by Counsel for the First Respondent) for respondent

Date 4 April 2019

JUDGMENT

[1]The claimant was not an employee or worker of the first respondent; the claims against the first respondent are dismissed. The claim against the second respondent proceeds.

[2]The hearing is listed for a further preliminary hearing to discuss and identify the issues as further detailed below. Note: Reasons for the decision having been given orally at the hearing, written reasons will not be provided unless a written request is received from either party within 14 days of the sending of this record of the decision 1 ph outcome re case management 2013 rules, Jan 2014 Case Number: 2302788/2016

REASONS

[2]Ms Nathan on behalf of the Respondent invited me to find that the claims of direct discrimination presented by the Claimant were outside of the time limit set out in Section 123 of the Equality Act 2010. She put her case on the basis that the Claimant relied on 4 incidents as amounting to race discrimination. That the incidents were said to have taken place between July 2014 and 8 February 2015. That last incident relating to a disagreement with a permanent member of staff Shaun O’Brian. She argued that there was no pleaded case that these events formed part of an act extending over a period. She said that the events that gave rise to the Claimant leaving work in July 2017, and formed the basis of claims which she accepted were in time, were so manifestly different both as to their nature and in respect of the individuals concerned that I could safely proceed on the basis that there was no sufficient connection capable of amounting to an act extending over a period.

[3]Ms McCann on behalf of the Claimant said that Ms Nathan’s submissions were based on a complete misunderstanding of the Claimant’s case set out in his ET1 and Further and Better Particulars supplied pursuant to an order of Employment Judge Sage. She accepted that the latter acts were of a different nature to the earlier acts that were described as acts of direct discrimination in the ET1. Her submission was that it was tolerably clear from the pleaded case, read with the further information, that what the Claimant was saying was that his disagreement with Shaun O’Brian and various other white members of staff had not simply arisen and ceased but had given rise to a state of affairs whereby, as and when the Claimant came across these individuals, they would be hostile to him and that the basis of that hostility was race.

[4]Ms Nathan rightly pointed out that that at first blush amounted to an expansion of the Claimant’s case leaving the Respondent unsure about who exactly it was being said acted as part of the group of white porters hostile to the Claimant. Ms McCann accepted that there was an absence of detail but had assumed that this was the sort of matter that would be dealt with in witness statements. She was however able to identify one paragraph of the Further and Better Particulars which with a benign reading could support her description of the Claimant’s case.

[5]Clearly if, as a matter of fact there was continuing hostility between a group of white employees and the Claimant and that hostility was because of race then there could be an act extending over a period for as long as that state of affairs continued.

[6]The proper approach to an assessment at a preliminary hearing of whether there is or is not an act extending over a period is that set out in Aziz v FDA

[2010] EWCA Civ 304

in which it was said: “34. One issue of considerable practical importance is the extent to which it is appropriate to resolve issues of time bar before a main hearing. Obviously there will be a saving of costs if matters outside the jurisdiction of the ET are disposed of at an early stage. On the other hand a claimant must not be barred from presenting his or her claim on any issue where there is an arguable case.35. The Court of Appeal considered the correct approach to this matter in Lyfar v Brighton and Sussex University Hospitals Trust

[2006] EWCA Civ 1548

. In that case the claimant complained of 17 incidents of racial discrimination over a period of many months. The question of time bar was dealt with at a pre-hearing review. The claimant gave oral evidence on that occasion. Having heard the claimant's evidence, the ET allowed five of the claimant's complaints to proceed but dismissed the other 12 complaints as being out of time. The EAT and the Court of Appeal both upheld that decision. Hooper LJ gave the leading judgment, with which Hughes LJ and Thorpe LJ agreed. Hooper LJ stated that the test to be applied at the pre-hearing review was to consider whether the claimant had established a prima facie case. Hooper LJ accepted counsel's submission that the ET must ask itself whether the complaints were capable of being part of an act extending over a period.

36. Another way of formulating the test to be applied at the pre-hearing review is this: the claimant must have a reasonably arguable basis for the contention that the various complaints are so linked as to be continuing acts or to constitute an ongoing state of affairs: see Ma v Merck Sharpe and Dohme Ltd

[2008] EWCA Civ 1426

at paragraph 17.”

[7]It is implicit in the decision of the Court of Appeal that where an employee surpasses the “reasonably arguable” threshold at a preliminary hearing then it remains open to a Respondent to revisit the point once all of the evidence is presented at the full hearing.

[8]I was invited to strike out the direct discrimination claims on the basis that they were out of time and therefore had no reasonable prospects of success. In the alternative I was asked to make deposit orders on the basis that the claims had little reasonable prospects of success. I consider that the question of whether the Claimant can establish that there was ongoing acts motivated by race perpetrated by the group of white porters is essentially an issue of fact. I was faced with an assertion that this was the case. Neither party had prepared for the preliminary hearing on the basis that I would hear evidence and determine facts. I therefore approach the matter as I would any other application for a strike out and take the Claimant’s case at its highest. Whether the Claimant can make good this assertion is a matter for the full hearing. At this stage and without hearing the Claimant and his witnesses I am unable to say that he has no, or little reasonable prospects of establishing the facts that he has alluded to in his further and better particulars or that his case that there was a continuing act is not reasonably arguable. I therefore do not strike out the claims nor do I make any deposit orders.

[9]I do however agree with the Respondent that it is not fair to simply allow the Claimant to give the details of his claim in witness statements. If the normal practice of simultaneous exchange is followed the Respondent might be severely prejudiced. I considered whether I should make a further order for further information but I consider that that might lead to less rather than more clarity. I therefore below depart from the usual practice of mutual exchange of witness statements and below I have made provision for sequential exchange of witness statements. I should make it quite clear that I do not give the Claimant permission to amend his claim beyond the case advanced in his ET1 and further Information thus far provided.

[1]After all the matters set out below had been discussed, we agreed that the hearing in this claim would be completed within 10 days. It has been listed at Croydon Employment Tribunal, Montague Court, 101 London Rd, Croydon CR0 2RF to start at 10am or so soon thereafter as possible on 16 to 27 July 2018. The parties are to attend by 9.30 am. The hearing may go short, but this allocation is based on the on the Claimant’s intention to give evidence and call up to 5 further witnesses and the Respondent’s to call up to 10 witnesses.

[2]The hearing shall deal only with issues of liability and any question of whether the Claimant would or might have been dismissed in any event or caused or contributed to his dismissal. It is agreed that unless the Tribunal at the final hearing orders otherwise the Claimant shall give his evidence first. Discussion and issues

[3]The matter had been listed for a Preliminary Hearing in order clarify the issues in the light of the further information provided by the Claimant in response to the Order of Employment Judge Sage and to deal with the time limit point set out above and finally to make Case Management directions to prepare the matter for trial.

[4]At the first Preliminary hearing on 11 April 2017 Employment Judge Sage had sought to clarify some of the issues but was unable to do so without ordering the Claimant to provide further information. I had the benefit of that further information and was able to discuss with the parties what issues were to be decided at the final hearing. Accordingly, subject to any decision by the judge at the final hearing the following are the issues to be determined. These were agreed between the parties but the language used is my own. Unfair dismissal Section 94/98 ERA 1996 claim (“ordinary unfair dismissal”)

[5]The Respondent disputes that the Claimant was an employee and says that he is a “bank worker”. The issues that will have to be determined by the Tribunal are therefore: 5.1. Whether the Claimant’s bank worker status gives rise to a contract of employment governing the entire relationship (an umbrella contract) or 5.2. Whether the individual occasions of work are themselves done under a contract of employment and; in either case 5.3. Whether the Claimant can establish that he has the necessary 2-years continuity of service to bring his claim.

[6]The Respondent disputes that there has been any dismissal for the purposes of section 95 ERA 1996. The burden of proof is on the Claimant to establish that he has been dismissed.

[7]If the Claimant establishes the points above, then the Respondent must show a potentially fair reason for the dismissal. The Respondent relies upon its need to introduce a fingerprint scanning system which it says gives rise to a potentially fair reason for any dismissal (which it denies).

[8]If a potentially fair reason for any dismissal is established the Tribunal will apply the test of fairness set out in Section 98(4) of the ERA 1996.

[9]There is no dispute that this claim was presented in time. Public Interest Disclosure claims

[10]The Claimant says that he was dismissed, or his work was withdrawn, for making protected disclosures. Again there is no dispute that this claim was presented in time. He brings this claim under sections 94 and 103A of the Employment Rights Act 1996 on the basis that his primary case is that he was an employee. His alternative position is that if he is not an employee he is a worker as defined in Section 230(3)(b) of the ERA 1996 for the purposes of Part IVA of that act and maintains the same claims under Section 47B and 48 of the ERA 1996.

[11]The Claimant says that on 23 June 2016 orally and on 29 June 2016 in an email he disclosed information concerning the treatment of ethnic minority porters being denied opportunities within the Respondent Trust AND being disadvantaged by the installation of a fingerprint scanning device.

[12]It will be an issue for the Tribunal, in deciding whether the disclosures fell within Section 43B of the ERA 1996: 12.1. whether or not that information was disclosed as alleged 12.2. whether or not the Claimant had a reasonable belief that it tended to show that the Respondent had or was likely to breach the legal obligations imposed by the Equality Act 2010; and 12.3. whether the Claimant had a reasonable belief that his disclosure was in the public interest.

[13]It will be necessary to determine whether the Claimant was an employee and/or worker.

[14]It will be necessary to determine whether the Claimant was dismissed or subjected to a detriment of having his work withdrawn as he alleges.

[15]If the Claimant was an employee, and was dismissed, it will be necessary to decide whether the reason, or if more than one, the principle reason for the dismissal was because the Claimant had made any protected disclosure.

[16]If the Claimant was not an employee but was a worker, and he had his work withdrawn it will be for the Respondent to establish the reason for this pursuant to Section 48(2) of the ERA 1996. If the Tribunal will need to determine whether any decision to withdraw work was on the ground that the Claimant had made a protected disclosure. That is, was the protected disclosure a material influence? Section 27 of the Equality Act 2010 - Victimisation

[17]The Claimant relies upon the same matters as he alleges in his Public Interest Disclosure claims as amounting to protected acts for the purposes of his Section 27 Victimisation claims.

[18]The detriment relied upon by the Claimant is the alleged withdrawal of work. It will be an issue for the Tribunal whether as a matter of fact this is made out.

[19]The tribunal will need to determine whether or not any withdrawal of work was “because of” any protected act it finds established applying the burden of proof set out in Section 136 of the Equality Act 2010. Section 13 of the Equality Act 2010 – Direct Discrimination

[20]The Claimant relies upon the following acts as amounting to less favourable treatment: 20.1. Around July to August 2014 a supervisor Julie Walters gave the Claimant and other ethnic minority porters more and more onerous tasks than white porters. The Claimant says that this unfair distribution of work was because of race and he refers to Shaun O’Brian and Ricky Fieldsend as actual comparators; and 20.2. On 2 August 2014 Tracy Boothroyd said words to the effect that “all muslims are terrorists” and she mocked the manner in which Muslims pray. The Claimant relies on the protected characteristic of religion and compares himself to another employee “Leon” who is a Christian or a hypothetical comparator; and 20.3. In August 2014 another supervisor, Ms Santos said to the Claimant words to the effect that “if you want to keep your job you need to keep away from these [white] guys”. The Claimant says that this was because of race and religion and relies upon a hypothetical comparator. 20.4. On 8 February 2015 Shaun O’Brian one of the group of white Porters said words to the effect “Tame get the fuck out of my face” and threatened to “Fuck me up”. It is the Claimant’s case that this incident was part of a course of hostility between this white porter together with others, including the incidents above, which continued until the end of the employment relationship. The Claimant says that this was because of race and compares his treatment to a white employee Ricky Fieldsend or a hypothetical comparator.

[21]The issues for the Tribunal will be: 21.1. Whether the treatment happened as alleged; and 21.2. Whether any treatment found proven was because of a protected characteristic applying the burden of proof found at Section 136 of the Equality Act; and 21.3. Whether any acts found to be discriminatory were presented within the time limit imposed by Section 123 of the Equality Act 2010. Section 26 - Harassment

[22]The Claimant relies upon the two incidents above at paragraphs 20.1 and 20.4 as being incidents of harassment on the grounds of race. The issues for the Tribunal will be: 22.1. Whether the treatment happened as alleged; and 22.2. Whether the treatment created the proscribed environment set out at sub section 26(1)(b); and 22.3. Whether it related to race; and 22.4. Whether any acts found to be discriminatory were presented within the time limit imposed by Section 123 of the Equality Act 2010. Other claims

[23]The Claimant also brought claims for unpaid leave under the Working Time Regulations. The Respondent says that it paid “rolled up holiday pay”. The issues set out in paragraph 11 of the order of Employment Judge Sage dated 24 April 2017 should be read as including a challenge to the practice of paying rolled up holiday pay.

[24]The claim for breach of contract turns upon whether the Claimant was an employee. If he was what period of notice was he entitled to and was his contract terminated by the Respondent in breach of any such right to notice.

[25]The claim for sick pay apparently relates to the fact that bank workers are not paid sickpay. The Claimant challenges the legality of that position. No dates when the Claimant was off sick have been identified and accordingly there may be an issue as to whether the claims are in time depending on the jurisdiction invoked.

[26]The Claimant had intimated claims under the European Convention on Human Rights and the Human Rights Act. The Tribunal has no jurisdiction to deal with such freestanding claims although the infringement of human rights may be relevant to the substantive claims above. Judicial mediation

[27]I raised the possibility of this case being considered for an offer of judicial mediation. The Respondent expressed no interest in this as it is constrained in its approach to settlement. The parties were encouraged to consider any appropriate form of dispute resolution. ORDERS Made pursuant to the Employment Tribunal Rules 2013 Schedule of Loss

[1]The Claimant shall, if he has not already done so in compliance with the oral direction given at the hearing, by 2 July 2017 serve on the Respondent a fully particularised schedule of loss in which he should set out the remedy he seeks in respect of each of his claims. If he says that he is entitled to an award for injury to feelings and/or a claim for personal injury he should set out what level of award he contends is appropriate and the reasons why that is the case. Disclosure of documents

[2]The parties are ordered to give mutual disclosure of documents relevant to the issues identified above by list and copy documents so as to arrive on or before 18 July 2017. This includes, from the Claimant, documents relevant to all aspects of any remedy sought.

[3]Documents relevant to remedy include evidence of all attempts to find alternative employment: for example a job centre record, all adverts applied to, all correspondence in writing or by e-mail with agencies or prospective employers, evidence of all attempts to set up in self-employment, all pay slips from work secured since the dismissal, the terms and conditions of any new employment.

[4]This order is made on the standard civil procedure rules basis which requires the parties to disclose all documents relevant to the issues which are in their possession, custody, or control, whether they assist the party who produces them, the other party or appear neutral.

[5]The parties shall comply with the date for disclosure given above, but if despite their best attempts, further documents come to light (or are created) after that date, then those documents shall be disclosed as soon as practicable in accordance with the duty of continuing disclosure.

[6]The expression “documents” in this order includes all written documents whether they are in paper or electronic form and so includes e-mails texts messages sent on social media, web pages forums and the like. It also includes photographs, plans and drawings or any description. In addition, it includes any audio recordings. If there are any audio recordings, then they must be transcribed by any party who wishes to refer to their contents. All hand written documents should, unless the cost is disproportionate, be transcribed. Bundles

[7]It is ordered that the Respondent has primary responsibility for the creation of the single joint bundle of documents required for the hearing.

[8]To this end, the Respondent shall prepare a draft index for the proposed bundle and supply it to the Claimant by 1 August 2017.

[9]The Claimant is ordered to notify the Respondent on or before 15 August 2017 of any additional documents to be included in the bundle at his request. These must be documents to which he intends to refer, either by evidence in chief or by cross-examining the Respondent’s witnesses, during the course of the hearing.

[10]If any party objects to the inclusion of any document within the bundle then it shall be included at the back of the bundle separately indexed and any such dispute shall be resolved by the Tribunal at the final hearing.

[11]The Respondent is ordered to provide to the Claimant a full, indexed, page numbered bundle enclosed in one or more ring binders to arrive on or before 29 August 2017.

[12]The Respondent is ordered to bring sufficient copies (at least five) to the Tribunal for use at the hearing, by 9.30 am on the morning of the hearing. Witness statements

[13]It is ordered that oral evidence in chief will be given by reference to typed witness statements from parties and witnesses.

[14]The witness statements must be full, but not repetitive. They must set out all the facts about which a witness intends to tell the Tribunal, relevant to the issues as identified above. They must not include generalisations, argument, hypothesis, or irrelevant material.

[15]The facts must be set out in numbered paragraphs on numbered pages, in chronological order.

[16]If a witness intends to refer to a document, the page number in the bundle must be set out by the reference.

[17]It is ordered that the Claimant shall serve all of the witness statements upon which he intends to rely on the Respondent by no later than 26 September 2017.

[18]It is ordered that the Respondent shall serve all of the witness statements upon which it intends to rely on the Claimant by no later than 7 November 2017.

[19]Each party shall bring sufficient copies (at least 5) of their witness statements to the final hearing.

[20]Any party who fails to serve their witness statement in accordance with these orders shall not be entitled to rely upon any witness statement not so served without the permission of the Tribunal. Other matters

[21]The Respondent is ordered to prepare a cast list, for use at the hearing. It must list, in alphabetical order of surname, the full name and job title of all the people from whom or about whom the Tribunal is likely to hear.

[22]The Claimant is ordered to prepare a short, neutral chronology for use at the hearing.

[23]These documents should be agreed if possible 4 weeks before the date set for the final hearing. CONSEQUENCES OF NON-COMPLIANCE

[1]Failure to comply with an order for disclosure may result on summary conviction in a fine of up to £1,000 being imposed upon a person in default under s.7(4) of the Employment Tribunals Act 1996.

[2]The Tribunal may also make a further order (an “unless order”) providing that unless it is complied with, the claim or, as the case may be, the response shall be struck out on the date of non-compliance without further consideration of the proceedings or the need to give notice or hold a preliminary hearing or a hearing.

[3]An order may be varied or revoked upon application by a person affected by the order or by a judge on his/her own initiative.

[1]The Claimant is seeking what he says is clarification that his Claim “still includes” an indirect as well as a direct race discrimination claim. He says that his original ET1 refers to factual matters that clearly infer an indirect discrimination claim. At box 8 he had ticked the discrimination on the grounds of race boxes. He has then provided separate Particulars of Claim. These include a heading “Direct and Indirect Race Discrimination and Harassment”. The Particulars set out two paragraphs of factual matters relied upon to support these claims.

[2]A Preliminary Hearing was held on 11 April 2017 before Judge Sage. The Respondent, accepting that the ET1 raised a potential indirect race claim, included such a claim in its draft list of issues for that Preliminary Hearing numbered 23 to 25. That list includes, “The Claimant to confirm the PCP relied on”. The Claimant was accompanied at the Preliminary Hearing by a friend, Ms G McCann. The Respondent was represented by Ms D Nathan, solicitor. Mr Jones for the Respondent, who was not present at the Preliminary Hearing, said he was instructed that the issue of indirect discrimination was raised, had been discussed, and was considered by Judge Sage who indicated, after hearing from the Claimant as to the factual matters he was relying on, that these went to a direct discrimination claim, and as such there did not appear to be any basis for an indirect discrimination claim. Having checked the Judge’s notes on the File, there is a note that says, regarding the indirect race discrimination claim, “not claiming”. This appears to be consistent with Mr Jones’s submission on this point.

[3]Following that Preliminary Hearing of 6 May, the Claimant provided the Further and Better Particulars that he had been ordered to provide following the April Preliminary Hearing. These make no mention of indirect discrimination but do have a note at the end that says, “PS I note that your Order does not ask me to provide further details of Indirect Discrimination claims. I trust this is because they are covered fully enough in my Particulars of Claim, but please let me know if you need further details.” Nothing further occurred with regard to this.

[4]There was a further Preliminary Hearing on 6 June where Mr Siby was accompanied by Ms McCann. That Preliminary Hearing discussed, amongst other things, the issues in the case that were needed to be resolved at the Full Merits Hearing. The Case Management Summary sent to the parties on 5 July notes at paragraph 4 that the Judge, having “the benefit of the further information” that had been provided by the Claimant following the Preliminary Hearing on 11 April, “was able to discuss with the parties what issues were to be decided at the Final Hearing”. There is no mention in the Case Management Summary of an indirect discrimination claim. There is nothing to suggest it was raised or discussed.

[5]On 30 August, Mr Siby emailed the Employment Tribunal to say that he was “very concerned that some of the discrimination elements of my claim, detailed in my ET1, do not appear in the Order from Judge Crosfill dated 21 June. About 90% of the porters at the Trust are black but about 90% of those given employment benefits are white, so this is a very important part of my case.” (In fact, although this information was not specifically included under the heading ‘Direct and Indirect Race Discrimination and Harassment’ in the Particulars of Claim, there was a reference to “policies being more likely to affect minority ethnic staff”, and there was a reference in the opening paragraphs of the Particulars of Claim to “80% of the poverty ring workforce being Bank staff and to the majority of the Bank Porters being black”.)

[6]In the Respondent’s response to this email dated 1 September, it said this appeared to be an application to amend the ET1 under Rule 30(1) of the Employment Tribunal’s (Constitution and Rules of Procedure) Regulations 2013, which the Respondent opposed. This email pointed out that this had not been raised at either of the two Preliminary Hearings (but that we know is not correct, as stated above, it was raised at the 11 April 2017 Preliminary Hearing). It said that it was not clear whether the way it was put was in reality a direct rather than an indirect discrimination claim. The Respondent submitted that it would suffer significant disadvantage and prejudice as it was a late amendment, was unclear and vague, and no disclosure had been provided by the Claimant about it to date.

[7]Mr Siby responded by email dated 4 September saying he was “extremely concerned that the main reasons for my lodging an Employment Tribunal claim have been overlooked”. He referred to the ET1 and the Particulars and set out four matters that he said raised “direct/indirect racial discrimination by the Respondent.” These repeated, in a slightly different way, the matters in the Particulars that I have described at Paragraph 1 above. He said these were not new claims, that Judge Sage’s Order did not mention indirect discrimination, that he had mentioned this at the end of his 6 May Further and Better Particulars, and there was no mention in the Order of 6 June of Judge Crosfill of my claims of “direct/indirect discrimination … So, between the two preliminary hearings, I think these must have somehow been overlooked.” He concluded that, “Given that the Final Hearing is listed for a long time away, namely July 2018, I do not think the Respondent will be prejudiced by the Tribunal ensuring that all the valid claims raised in my ET1 are heard at the Final Hearing.” Submissions

[8]Both Mr Siby and Mr Jones made short oral submissions. Mr Siby, who explained that Ms McCann was unwell so he did not have the benefit of her assistance, relied primarily on the 4 September email, a copy of which he provided. He queried the reference to 90% in the Respondent’s email and it was explained by Mr Jones that these were the figures in Mr Siby’s initial 30 August email. He said discrimination was at the heart of his claim. Mr Siby was not able to set out in any clear way what the provision, criterion or practice was that he was seeking to rely on.

[9]Mr Jones set out the factual procedural matters which had preceded this application. Mr Jones submitted that the Claimant was seeking to reopen a matter that had been determined, that the case had moved on, disclosure had been dealt with, and if this application was allowed it would effectively be back to “square one”. Further, he said this was effectively a new claim and not a re-labelling; applying the test in Selkent he submitted:(1) the claim was vague and did not set out a provision, criterion or practice. It was not clear what the provision, criterion or practice could be and it was hard to work out what a provision, criterion or practice might look like. Much of the underlying facts were covered by other heads of claim already, particularly by the direct discrimination claim;

(2) the application was late and came after two previous Preliminary Hearings and a set of Further and Better Particulars, and disclosure had now been made in the other claims;

(3) in terms of the balance of prejudice, there was much more prejudice to the Respondent than to it the Claimant.

[10]He pointed out that the Claimant already had a number of claims and the factual matters he relies upon are covered by, amongst other things, his direct discrimination claim. There is no certainty or specificity to this amendment and given the lack of any provision, criterion or practice it would probably necessitate another Preliminary Hearing, more particulars and a further set of Case Management Directions to deal with it. He said therefore the application should not be allowed. Law

[11]In Selkent Bus Co v Moore

[1996] IRLR 661

, the EAT set out some general principles as to how an employment tribunal should approach an application to amend. In essence it said that whenever the discretion to grant an amendment was invoked, “a tribunal should take into account all the circumstances, [including but not limited to the nature of the amendment, the applicability of time limits and the timing and manner of the application]”, before balancing “the injustice and hardship of allowing the amendment against the injustice and hardship of refusing it”. This approach was approved by the Court of Appeal in Ali v Office of National Statistics,

[2005] IRLR 201

. The EAT in Selkent said it was impossible and undesirable to attempt to list the relevant circumstances exhaustively but the following circumstances 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 course of action. b) the applicability of time limits: if a new complaint and course of action is proposed to be added by way of amendment, it is essential for the Tribunal to consider whether the complaint is out of time and, if so, whether the time limit should be extended under the applicable statutory provisions … 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 adjournment, and additional costs, particularly if they are unlikely to be recovered by the successful party, are relevant in reaching a decision.

Conclusion

[12]I was not minded to allow the Claimant’s application to include a claim of Indirect Race Discrimination. I made that judgment for four principle reasons.

[13]Firstly, I find that this matter had already been raised, considered on the facts and dismissed at the Preliminary Hearing before Judge Sage in April. It is worth noting in that context that there is no reference in any of(1) the Case Management Summary following the Preliminary Hearing on 11 April;

(2) the Further and Better Particulars provided by the Claimant on 6 May (although there was a postscript added about it), or

(3) the Case Management Summary following a further Preliminary Hearing on 6 June, of an indirect race discrimination claim. Indeed, it was not contended by Mr Siby before me that it was raised at the June Preliminary Hearing.

[14]Secondly, while it could be argued that this was a “label on the facts already pleaded” case, as I have said, that had already been considered, and dismissed, by Judge Sage. There was no reason advanced as to why that deciding should be reconsidered. On that basis, however, I considered whether it should be treated as an application to add a new course of action, applying Section 123(1) of the Equality Act 2010. Clearly the application to amend was out of time. I therefore considered what period it was just and equitable for such a claim to have been made within. I was of the view, given the postscript in the 6 May letter which shows the Claimant was aware of a possible issue around the indirect discrimination claim, that the relevant additional just and equitable period would have been for it to have been raised by or at the further Preliminary Hearing in June. This was not done. I am therefore not minded to exercise my discretion to allow an out of time amendment.

[15]Thirdly, I am of the view that the facts relied upon do not sustain such a claim.

[16]Fourthly, considering the application under Selkent, and acknowledging that there is no absolute bar to a very late application to add a new cause of action: i. the nature of the amendment: as discussed above, there is an argument that what is being sought here amounts to the addition or substitution of other labels for facts already pleaded. Even if that is the case, in my judgment, the amendment sought cannot be said to be merely a minor matter, it is still seeking to plead a new course of action. Further, on the facts, there is considerable doubt as to whether the factual matters relied upon, which are already included in the ET1, do support such a claim. Clearly Judge Sage considered they did not. I do not consider they give rise to an indirect discrimination claim either. Further, it was not at all easy to see what the provision, criterion or practice might be; ii. the applicability of time limits: this has already been considered by me above, applying the Section 123 Equality Act test. I did not consider it to be just and equitable to extend the time limit under the applicable statutory provision. Under Selkent, even if a claim is out of time under the Section 123 test, that may not be an absolute bar. There are no time limits laid down in the rules for the making of amendments; iii. the timing and manner of the application: I acknowledge that the Claimant is a litigant in person and further that the person who has been advising him has been unwell, but no evidence or explanation has been advanced for the late timing.

[17]Stepping back and looking at the application in the context of the case as a whole, in terms of the relative injustice and hardship involved in refusing or granting an amendment, on the facts here in my judgment that balance falls in favour of the Respondent: 1. if the application for the amendment was permitted, it would in my judgment be necessary for the Claimant to articulate what the claim was, and in particular, what the provision, criterion or practice was. I am not convinced that can be done, even if it could, there would probably need to be a further Preliminary Hearing to tease out the individual factors and issues; 2. the case has been proceeding since the Preliminary Hearing in June and disclosure has been given and completed. There would need to be a further round of discovery, with the additional costs and time that that would involve; 3. I acknowledge that the Full Hearing is some time away but that is not the only other factor to consider. There is no suggestion, for example, that new facts have been discovered or of new information appearing from documents disclosed on discovery; 4. the factual matters relied upon are already being considered with regard to the direct race discrimination claim; 5. I am not convinced in any event the facts relied upon give rise to an indirect discrimination claim; 6. the claim was raised and dismissed at the April Preliminary Hearing.

[18]Taking all these circumstances into consideration, and balancing the relative injustice and hardship to the parties, and for the reasons set out above, I was not minded to allow the Claimant’s application to add a claim of indirect discrimination.