Mrs H Mackley v MAG Ltd Stansted Airport: 3200141/2023
EMPLOYMENT TRIBUNALS
Case No 3200141/2023
Between
Mrs H MackleyClaimantMAG Ltd Stansted AirportRespondent
Before
Employment Judge JonesIn person for claimantMr R Mitchell (instructed by Solicitor) for respondentDate 19 June 2024
JUDGMENT
The Claimant’s application to amend her claim is refused.
REASONS
This claim was issued on 19 January 2023. In that claim, the Claimant makes complaint of constructive unfair dismissal - following a restructure which she described as a sham. It is her case that in the restructure she was treated less favourably than a younger male employee. She also complains of direct sex discrimination and age discrimination. The Respondent submitted its response to the claim on 21 February 2023. At a preliminary hearing on 22 June 2023, the Clamant clarified her and as a result, the Respondent submitted an amended Response to the claim. The minutes from the 22 June hearing record that the Claimant’s complaint of direct sex and age discrimination was that: -[1]She relied on Sam Lomax and Lee Williams as her comparators as they are male and in the 30 – 40 age group whereas she is female and in the 50 – 60 age group. It is her case that Mr Williams does the same job that she did at the Respondent and that Mr Lomax was doing the job that she took over, was paid at Band 5, as she was before her pay was decreased. The Claimant also relies on a hypothetical comparator.[2]That the acts of sex and age discrimination were(1) reducing the Claimant’s salary by £5,000 following the restructure;(2) failing to properly consider or to properly evaluate the Claimant’s role;(3) misleading the Claimant between March and July 2022 in relation to the re-grading process and in relation to her role as Terminal Co-ordinator; and(4) Rachel Miller informing the Claimant at a meeting on 28 July that she had been paid too much for the past 4 years. The complaint of constructive unfair dismissal also arises from the restructure, the promised job re-evaluation and whether the process was fair and proper; and is also related to the Claimant’s workload. On 22 November 2023, the Claimant wrote to the Tribunal to make an application to amend her claim to issue a complaint that the Respondent has breached the equality clause in her contract and that she has not been paid Equal Pay with her comparators. The Respondent opposed the application and today’s hearing was arranged to deal with it. The Tribunal apologises to the parties to the delay in the production of this decision and reasons. The pressure of work on the judge meant that this has been produced a few days late. The Tribunal apologises for that delay. The application to amend The Claimant is a litigant in person. In her written application she explained the following reasons for her late application to amend the claim: (1) The amended response had new information regarding the comparators pay banding that the Respondent had previously refused to give her, (2) she only recently obtained legal advice about her claim which confirmed that she might have a claim, and (3) the Respondent’s refusal to ‘provide a comparator of equal value’, (which is not clear to this Tribunal). In the hearing, the Claimant clarified that all attempts at discussing comparators were ’blanked’ by the Respondent and the statements at paragraph47.1 and47.2 in the amended response provided information that she did not have before, and which led her make this application. In those paragraphs the Respondent provided dates on which the Claimant’s two comparators, Mr Williams and Mr Lomax occupied certain Pay Grades and when they moved on to a different Pay Grade. The Claimant did not have the dates before. She did know their pay grades. The Claimant also submitted that she was aggrieved about the re-evaluation process. She alleges that she had been treated as admin staff and put in a pool with them, whereas she maintains that her work was mostly compliance work and that she should have been pooled with those who did compliance work such as Mr Lomax and Mr Williams. It is her case that on 21 June, Ms Lindsey Millar wrote to Rachel Millar and advised that the Claimant’s job was materially different from that of an administrator, but the Respondent took no notice. It is also her case that although she was promised a re-evaluation of her job, the Respondent failed to look at her documents and continued to consider her as an administrator. The Claimant added that she considered that she did work of equal value or work that is broadly similar to the other compliance managers in the airport, i.e., Mr Williams, Mr Lomax, Ms Rebecca Dow, and Mr Simon Parker. The last two had not been previously mentioned in the case. The Claimant was not clear of the actual allegation she wished to add to her claim. However, from her observations in the hearing, the Tribunal finds it likely that she wants the Tribunal to consider that she was doing the same work or work of equal value to her comparators and that therefore she should have been paid the same as he was and retained on Band 5, after the restructure and that the Respondent’s decision not to do so was in breach of the equality clause. She also stated that she did the same investigation and compliance work as Mr Parker and attended the same meetings as Mr Williams. She stated in her application and in the further information she provided on 12 January, that all her comparators did compliance work, as she did and therefore, she should be paid the same. It was also her case that she tried to get the Respondent to give her details of comparators and they refused to do so and so she did not know the details until the Amended Response. She stated that it was also the results of DSAR (Subject Access Request) that led her to believe that she had to make the application to amend. The Claimant also spent a lot of time in this hearing and in the earlier preliminary hearing explaining her position on the restructure and the Respondent’s promises to re-evaluate her job and her belief that they totally misled her by failing to do so. It is likely that this is a significant part of the case for the Claimant. The Respondent’s position The Respondent disputed that there was anything in their Amended Response that was new to the Claimant, or which would have led the Claimant to question whether she could bring a complaint about equal pay. They submitted that the new complaint was completely unparticularised. The Respondent reminded the Tribunal that there had been a discussion about Equal Pay in the first preliminary hearing in this matter and that during that conversation the Claimant stated that she did not want to bring an equal pay complaint and that there was no one who was a direct comparator to her because no one else at the airport did the exact role that she did. The Respondent submitted that the Claimant could have raised this complaint in her original ET1 and failed to do so and that she is out of time to bring an Equal Pay complaint in any event. overriding objective The overriding objective of the Tribunal Rules is to enable employment tribunals to deal with cases justly and fairly. This entails, so far as practicable (a) ensuring that the parties are on an equal footing, (b) dealing with cases in ways which are proportionate to the complexity and importance of the issues; (c) avoiding unnecessary formality and seeking flexibility in proceedings; (d) avoiding delay, so far as compatible with proper consideration of the issues; and (e) saving expense. The Rules also say that a Tribunal will give effect to the overriding objective in interpreting, or exercising any power give to it by the Rule and that the parties and their representatives shall assist the Tribunal to further the overriding objective. The Tribunal therefore also must balance the costs and resources involved in allowing/refusing these amendments to both parties. The Tribunal had regard to the following law in considering this application. Law The Respondent referred the Tribunal to the case of Chandhok v Turkey [2015] ICR 527 in which it was stated that the ET1 claim form is not just something to set the ball rolling. It is not free to be augment by whatever the parties choose to add or subtract at a later stage in the proceedings. The power to amend is, as Mummery J pointed out in Selkent Bus Co v Moore [1996] ICR 836, a judicial discretion to be exercised 'in a manner which satisfies the requirements of relevance, reason, justice and fairness inherent in all judicial discretions'. The EAT set out general practice and procedure governing the approach a tribunal should take when considering amendments to existing claims, as follows: - “(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 addition 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, e.g., in the case of unfair dismissal, section 67 of the Employment Protection (Consolidation) Act 1978. (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 Regulations of 1993 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.” As the EAT observed in the case of Vaughan v Modality Partnership [2021] ICR 535, the principles in Selkent above are not to be treated as a tick box exercise. They also stated as follows: - 21. Underhill LJ [in Abercrombie v Aga Rangemaster Ltd [2014] ICR 209] focused on the practical consequences of allowing an amendment. Such a practical approach should underlie the entire balancing exercise. Representatives would be well advised to start by considering, possibly putting the Selkent factors to one side for a moment, what will be the real practical consequences of allowing or refusing the amendment. If the application to amend is refused how severe will the consequences be, in terms of the prospects of success of the claim or defence; if permitted what will be the practical problems in responding. This requires a focus on reality rather than assumptions. It requires representatives to take instructions, where possible, about matters such as whether witnesses remember the events and/or have records relevant to the matters raised in the proposed amendment. Representatives have a duty to advance arguments about prejudice on the basis of instructions rather than supposition. They should not allege prejudice that does not really exist. It will often be appropriate to consent to an amendment that causes no real prejudice. This will save time and money and allow the parties and tribunal to get on with the job of determining the claim. 22. Refusal of an amendment will self-evidently always cause some perceived prejudice to the person applying to amend. They will have been refused permission to do something that they wanted to do, presumably for what they thought was a good reason. Submissions in favour of an application to amend should not rely only on the fact that a refusal will mean that the applying party does not get what they want; the real question is will they be prevented from getting what they need. This requires an explanation of why the amendment is of practical importance because, for example, it is necessary to advance an important part of a claim or defence. This is not a risk-free exercise as it potentially exposes a weakness in a claim or defence that might be exploited if the application is refused. That is why it is always much better to get pleadings right in the first place, rather than having to seek a discretionary amendment later.” The power to amend is also confirmed in the 2018 Presidential Guidance on General Case Management. As the Tribunal also has to consider time limits in relation to the complaints that a claimant wishes to add to a case, it also need to be aware of the provision of section 129 Equality Act 2010 which states that a complaint which relates to a breach of the equality clause or rule, must be brought to the employment tribunal after the end of the qualifying period, which in this case, is 6 months beginning with the last day of the employment. In this case, the Claimant’s employment terminated on 31 August 2022. The application to amend would therefore be out of time as it was brought in November 2023, i.e.,15 months later. There is no discretion to extend time in an Equal Pay complaint.