Ms N C Momah v Secretary of State for Justice: 3206217/2021
EMPLOYMENT TRIBUNALS
Case No 3206217/2021
Between
Ms N C MomahClaimantSecretary of State for JusticeRespondent
Before
Employment Judge BrewerIn person for claimantMs J Grey (instructed by Counsel) for respondentDate 16 February 2023
JUDGMENT
[1]The claimant was not a disabled person within the meaning of section 6 Equality Act 2010 at the material time.[2]The following claims are hereby dismissed:a. direct disability discrimination,b. discrimination arising from disability,c. harassment related to disability,d. failure to make reasonable adjustments ande. victimisation.[3]The claimant’s claim for ‘other payments’ is dismissed on withdrawal. 1 of 12
REASONS
Findings of fact
[1]In this claim the claimant claims, among other things, various forms of disability discrimination. The respondent does not accept that the claimant met the definition of disability at the material times.[2]For the purposes of this open preliminary hearing, I asked the claimant whether she required any adjustments having first explained how the hearing would proceed and the claimant confirmed that she did not require any adjustments beyond my request to Ms Grey make sure that her questions were short.[3]At a case management hearing before Employment Judge Frazer on 6 July 2022, it was decided that there should be a preliminary hearing to do a number of things including to determine whether the claimant was disabled within the meaning of section 6 Equality Act 2010. That part of the hearing was to proceed as an open or public preliminary hearing to be followed by a case management hearing.[4]Prior to the preliminary hearing before EJ Frazer, the claimant had been required to provide and had provided a disability impact statement. She had also been required to provide relevant medical or other records in support of her claim to be disabled, but as it transpired, she provided very limited documentation as discussed below.[5]At the preliminary hearing before EJ Frazer, the parties were given permission to provide further witness statements for the open preliminary hearing but neither party provided such further evidence. Therefore, I had before me a bundle of documents running to 141 pages and I was provided with a written skeleton argument by Ms Grey.[6]The claimant gave oral evidence and relied upon her disability impact statement as her witness evidence in chief. She was cross examined by Ms Grey, and I asked her one or two questions. At the end of that part of the hearing I reserved my decision on the disability question as we had a number of other case management issues to go through.
Issues
[7]The sole issue I was required to determine was whether the claimant met the definition of disability in section 6, Equality Act 2010 at the material time. Law I set out here a summary of the law.[9]Section 6 of the Equality Act 2010 (“EqA”) provides that a person has a disability if:a. they have a physical or mental impairment, and 2 of 12b. the impairment has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities.[10]The EqA defines a ‘disabled person’ as a person who has a ‘disability’ —(S.6(2) EqA). The burden of proof is on the claimant to show that he or she satisfies this definition.[11]Although the definition in S.6(1) is the starting point for establishing the meaning of ‘disability’, it is not the only source that must be considered. The supplementary provisions for determining whether a person has a disability are found in the Equality Act 2010 (Disability) Regulations 2010 SI 2010/2128.[12]In addition, the Government has issued ‘Guidance on matters to be taken into account in determining questions relating to the definition of disability’ (2011) (‘the Guidance’) under S.6(5) EqA. The Guidance does not impose any legal obligations but courts and tribunals must take account of it where they consider it to be relevant — paragraph 12, Schedule 1, EqA.[13]Finally, the Equality and Human Rights Commission (EHRC) has published the Code of Practice on Employment (2015) (‘the EHRC Employment Code’), which has some bearing on the meaning of ‘disability’ under the EqA. Like the Guidance, the Code does not impose legal obligations, but tribunals and courts must take into account any part of the Code that appears to them relevant to any questions arising in proceedings.[14]The requirement to ‘take account’ of the Guidance or Code applies only where the tribunal considers them relevant, and they must always give way to the statutory provisions if, on a proper construction, these differ. In Elliott v Dorset County Council EAT 0197/20 the EAT noted that where ‘consideration of the statutory provision provides a simple answer, it is erroneous to find additional complexity by considering the Code or Guidance’. Material time for establishing disability[15]The time at which to assess the disability (i.e. whether there is an impairment which has a substantial adverse effect on normal day-to-day activities) is the date of the alleged discriminatory act (Cruickshank v VAW Motorcast Ltd 2002 ICR 729, EAT). This is also the material time when determining whether the impairment has a long-term effect. An employment tribunal is entitled to infer, on the basis of the evidence presented to it, that an impairment found to have existed by a medical expert at the date of a medical examination was also in existence at the time of the alleged act of discrimination) see John Grooms Housing Association v Burdett EAT 0937/03 and McKechnie Plastic Components v Grant EAT 0284/08).
The hearing
[16]I note that evidence of the extent of someone’s capabilities some months after the act of discrimination may be relevant where there is no suggestion that the condition has improved in the meantime (Pendragon Motor Co Ltd t/a Stratstone (Wilmslow) Ltd v Ridge EAT 0962/00). 3 of 12[17]In All Answers Ltd v W 2021 IRLR 612, CA, the Court held that, following McDougall v Richmond Adult Community College 2008 ICR 431, CA, the key question is whether, as at the time of the alleged discrimination, the effect of an impairment has lasted or is likely to last at least 12 months. That is to be assessed by reference to the facts and circumstances existing at that date and so the tribunal is not entitled to have regard to events occurring subsequently. Physical or mental impairment[18]In Rugamer v Sony Music Entertainment UK Ltd and another case 2002 ICR 381, EAT, the EAT suggested the following definition of physical or mental impairment under the DDA: ‘some damage, defect, disorder or disease compared with a person having a full set of physical and mental equipment in normal condition’. And in McNicol v Balfour Beatty Rail Maintenance Ltd 2002 ICR 1498, CA, the Court of Appeal held that ‘impairment’ in this context bears ‘its ordinary and natural meaning… It is left to the good sense of the tribunal to make a decision in each case on whether the evidence available establishes that the applicant has a physical or mental impairment with the stated effects.’ It would seem, therefore, that the term is meant to have a broad application.[19]In Goodwin v Patent Office [1999] IRLR 4, the EAT gave detailed guidance as to the approach which ought to be taken in determining the issue of disability. A purposive approach to the legislation should be taken. A tribunal ought to remember that, just because a person can undertake day-to-day activities with difficulty, that does not mean that there was not a substantial impairment. The focus ought to be on what the claimant cannot do or could only do with difficulty and the effect of medication ought to be ignored for the purposes of the assessment.[20]The EAT said that the words used to define disability in S.1(1) DDA (now S.6(1) EqA) require a tribunal to look at the evidence by reference to four different questions (or ‘conditions’, as the EAT termed them):a. did the claimant have a mental and/or physical impairment? (the ‘impairment condition’)b. did the impairment affect the claimant’s ability to carry out normal daytoday activities? (the ‘adverse effect condition’)c. was the adverse condition substantial? (the ‘substantial condition’), andd. was the adverse condition long term? (the ‘long-term condition’)?[21]These four questions should be posed sequentially and not together (Wigginton v Cowie and ors t/a Baxter International (A Partnership) EAT 0322/09).[22]The approach in Goodwin was approved in J v DLA Piper UK LLP [2010] ICR 1052 (paragraph 40). It was said at paragraph 38 of that judgment: 4 of 12 “There are indeed sometimes cases where identifying the nature of the impairment from which a Claimant may be suffering involves difficult medical questions; and we agree that in many or most such cases it will be easier – and is entirely legitimate – for the tribunal to park that issue and to ask first whether the Claimant's ability to carry out normal day-today activities has been adversely affected – one might indeed say “impaired” – on a long-term basis. If it finds that it has been, it will in many or most cases follow as a matter of common-sense inference that the Claimant is suffering from a condition which has produced that adverse effect — in other words, an “impairment”. If that inference can be drawn, it will be unnecessary for the tribunal to try to resolve difficult medical issues of the kind to which we have referred.” Substantial adverse effect[23]To amount to a disability the impairment must have a ‘substantial adverse effect’ on the person’s ability to carry out normal day-to-day activities — S.6(1)(b) EqA. If an impairment ceases to have a substantial adverse effect on a person’s ability to carry out normal day-to-day activities but that effect is likely to recur, it is to be treated as continuing to have that effect — paragraph 2(2), Schedule 1.[24]In Goodwin (above) the EAT said that of the four component parts to the definition of a disability in S.1 DDA (now S.6 EqA), judging whether the effects of a condition are substantial is the most difficult. The EAT went on to set out its explanation of the requirement as follows: ‘What the Act is concerned with is an impairment on the person’s ability to carry out activities. The fact that a person can carry out such activities does not mean that his ability to carry them out has not been impaired. Thus, for example, a person may be able to cook, but only with the greatest difficulty. In order to constitute an adverse effect, it is not the doing of the acts which is the focus of attention but rather the ability to do (or not do) the acts. Experience shows that disabled persons often adjust their lives and circumstances to enable them to cope for themselves. Thus a person whose capacity to communicate through normal speech was obviously impaired might well choose, more or less voluntarily, to live on their own. If one asked such a person whether they managed to carry on their daily lives without undue problems, the answer might well be “yes”, yet their ability to lead a “normal” life had obviously been impaired. Such a person would be unable to communicate through speech and the ability to communicate through speech is obviously a capacity which is needed for carrying out normal day-to-day activities, whether at work or at home. If asked whether they could use the telephone, or ask for directions or which bus to take, the answer would be “no”. Those might be regarded as day-to-day activities contemplated by the legislation, and that person’s ability to carry them out would clearly be regarded as adversely affected.’ 5 of 12[25]This approach reflects the advice in Appendix 1 to the EHRC Employment Code that account should be taken not only of evidence that a person is performing a particular activity less well but also of evidence that ‘a person avoids doing things which, for example, cause pain, fatigue or substantial social embarrassment; or because of a loss of energy and motivation’ — paragraph 9.[26]There must be a causal link between the impairment and the substantial adverse effect, but it need not be a direct link.[27]In determining whether an adverse effect is substantial, the tribunal must compare the claimant’s ability to carry out normal day-to-day activities with the ability he or she would have if not impaired. It is important to stress this because the Guidance and the EHRC Employment Code both appear to imply that the comparison should be with what is considered to be a ‘normal’ range of ability in the population at large. Appendix 1 to the EHRC Employment Code states: ‘The requirement that an effect must be substantial reflects the general understanding of disability as a limitation going beyond the normal differences in ability which might exist among people’ — paragraph 8.[28]In cases where it is not clear whether the effect of an impairment is substantial, the Guidance suggests a number of factors to be considered (see paragraphs B1– B17). These include the time taken by the person to carry out an activity (paragraph B2) and the way in which he or she carries it out (paragraph B3). A comparison is to be made with the time or manner that might be expected if the person did not have the impairment.[29]The cumulative effects of an impairment are also relevant. An impairment might not have a substantial adverse effect on a person in any one respect, but its effects in more than one respect taken together could result in a substantial adverse effect on the person’s ability to carry out normal day-to-day activities.[30]The Guidance states that where a person has more than one impairment but none of the impairments considered in isolation has a substantial adverse effect on normal day-to-day activities, account should be taken of whether the impairments together have such a substantial adverse effect (see paragraph B6).[31]Paragraph 5(1) of Schedule 1 to the EqA provides that an impairment is to be treated as having a substantial adverse effect on the ability of the person concerned to carry out normal day-to-day activities if measures are being taken to treat or correct it and, but for that, it would be likely to have that effect. In this regard, likely means ‘could well happen’ (Boyle v SCA Packaging Ltd (Equality and Human Rights Commission intervening) 2009 ICR 1056, HL).[32]In Aderemi v London and South Eastern Railway Limited [2013] ICR 591, the EAT held that the Tribunal: “has to bear in mind the definition of substantial which is contained in section 212(1) of the Act. It means more than minor or trivial. In other words, the Act itself does not create a spectrum running smoothly from those matters which are clearly of substantial effect to those matters which 6 of 12 are clearly trivial but provides for a bifurcation: unless a matter can be classified as within the heading “trivial” or “insubstantial”, it must be treated as substantial. There is therefore little room for any form of sliding scale between one and the other.” Day to day activities[33]Appendix 1 to the EHRC Employment Code states that ‘normal day-to-day activities’ are activities that are carried out by most men or women on a fairly regular and frequent basis. The Code says: ‘The term is not intended to include activities which are normal only for a particular person or group of people, such as playing a musical instrument, or participating in a sport to a professional standard, or performing a skilled or specialised task at work. However, someone who is affected in such a specialised way but is also affected in normal day-to-day activities would be covered by this part of the definition’ paras 14 and 15.[34]The Guidance thus emphasises that the term ‘normal day-to-day activities’ is not intended to include activities that are normal only for a particular person or a small group of people. Account should be taken of how far the activity is carried out by people on a daily or frequent basis. In this context, ‘normal’ should be given its ordinary, everyday meaning (see paragraph D4).[35]The EAT in Paterson v Commissioner of Police of the Metropolis 2007 ICR 1522, EAT, concluded that ‘normal day-to-day activities’ must be interpreted as including activities relevant to professional life.[36]The Guidance states that it is not possible to provide an exhaustive list of day-today activities. However, in general, day-to-day activities are things people do on a regular or daily basis. The examples given are shopping, reading and writing, having a conversation or using the telephone, watching television, getting washed and dressed, preparing and eating food, carrying out household tasks, walking and travelling by various forms of transport, and taking part in social activities. Normal day-to-day activities can also include general work-related activities and study and education-related activities, such as interacting with colleagues, following instructions, using a computer, driving, carrying out interviews, preparing written documents, and keeping to a timetable or a shift pattern (see paragraph D3). Long term[37]Under para 2(1) of Schedule 1 to the EqA, the effect of an impairment is long term if it:a. has lasted for at least 12 months,b. is likely to last for at least 12 months, orc. is likely to last for the rest of the life of the person affected. 7 of 12 Findings of fact[38]References below are to pages in the bundle unless otherwise stated.[39]The claimant started work in the civil service on 29 September 2014. She remains employed currently as HR performance manager.[40]The claim form which was presented on 3 October 2021 [2 – 13] states expressly that the claimant’s claims are from the period 18 August 2020 (in fact the claim form refers to 2021 but it was agreed that this was a typographical error). Thus, for my purpose the material time is between 18 August 2020 and June 2021 which is the date of the last act complained of by the claimant.[41]The claimant attended university undertaking a degree course in Accounting and Business Information Systems. She obtained a 2:2. The claimant undertook a competency-based assessment for joining the civil service at which she was obviously successful.[42]Both in her claim form and in her disability impact statement [84 – 90] the claimant says that she had encountered various incidents concerning her ethnic background, gender and disability before August 2020 but that these are not matters which she complains of in this case.[43]The order requiring the claimant to provide a disability impact statement made it clear that the claimant was to say what impairment she relies upon, giving relevant dates and expressly setting out which day-to-day activities she says were substantially impaired by the disability.[44]The disability impact statement runs to 7 pages and 32 paragraphs.[45]In the claim form the claimant relies on what she refers to as an undiagnosed learning disability as the disability for the purposes of this case.[46]Although it is not precisely clear, in the disability impact statement the claimant seems to be relying upon dyslexia and indeed at the hearing it became clear that this was the disability she was now in fact relying upon.[47]The claimant has never been diagnosed as dyslexic.[48]I shall return to the claimant’s disability impact statement below but before then it is useful to look at what other documentation she has provided in support of her claim.[49]In the Occupational Health (OH) Report of 29 January 2021 [117], it is reported that the claimant said that she was experiencing issues with reading and writing at that point in time, but also that she had managed in other roles since 2014 and it was her then current role, that which she started in August 2020 which she was finding challenging. The claimant also said that she had long-standing issues with reading writing and her memory as well as information processing but that in some way this came to light only since August 2020 when her role changed. 8 of 12[50]In her oral evidence there was some explanation of this because the claimant said that although she had the difficulties referred to in the OH Report, these did not affect her unless and until she was subject to a certain level of stress and that she was not subject to such stress in her previous roles. However, she said that because of the difficulties she was having with her manager from August 2020, in her then new role, she was being subjected to stress and that stress in some way, which the claimant could not explain, exacerbated her dyslexia.[51]There is a workplace assessment report from an organisation called Lexxic [120 – 133] in the bundle. That report was made on 19 April 2021, and it confirms that the claimant had not been diagnosed with it with a specific learning difficulty or neurological condition and that she reported that her main difficulties in her role currently were the volume of writing, the length of meetings, wording emails and reading pre-meeting papers. The report also says that the claimant displays what it refers to as “similar traits to dyslexia or dyspraxia”.[52]The claimant did undergo a check based on the British Dyslexia Association (BDA) Adult Checklist [138]. This essentially requires the claimant to consider a number of questions and then circle one of four responses. The questions ask essentially whether the person taking the checklist has difficulty doing various things and then they are asked to say whether that difficulty is rare, occasional, often or most of the time. Those answers are given weighted scores depending on the question and response. The report says that the claimant scored 77 and that although the checklist is not diagnostic, that is to say it is not conclusive of a diagnosis of dyslexia, research has shown that those who recorded scores of more than 60, if diagnosed, would be diagnosed as moderately or severely dyslexic. Having said that, the report goes on to say, “Please note that this should not be regarded as an assessment of one's difficulties”. There is a further difficulty in relying upon this checklist in that we do not know what questions the claimant answered in what ways and the claimant said she does not have a copy of the answers she gave. That matters because It is not possible to assess what's the claimant’s areas of difficulty was said to have been. I also note that the checklist was completed in October 2022 and that the claimant is embroiled in litigation against her employer, which is no doubt quite stressful. For those reasons the checklist result is not in my judgment reliable material from which to draw conclusions in relation to the period August 2020 to June 2021.[53]Finally, the claimant has provided two letters from her GP practise [136 and 137]. The first letter says that the claimant was suffering from work related stress which has been a problem since 2015 and that she was referred for psychological therapy in 2015, took antidepressants for a period and was currently undergoing investigations regarding a new diagnosis of hypertension. The letter also states that the claimant's “current health conditions” include dyslexia with a date of 25 September 2021. The fact of the matter is however that all of the claimant’s evidence is that she has never had a diagnosis of dyslexia, so it is difficult to say how this appears in this letter and indeed why It is referred to in what is headed as a letter of support. 9 of 12[54]The second letter is also headed ‘letter of support’. Both letters are dated 16 June 2022, and both are signed by the same GP. The second letter does not refer to dyslexia.[55]This then takes us back to the claimant’s evidence set out in her disability impact statement and the oral evidence she gave at the hearing.[56]The claimant said that since starting at the respondent she has suffered with work related stress, anxiety and depression. She said that in order to escape this she changed jobs several times within the respondent but that she keeps being bullied and discriminated against. The claimant’s disability impact statement goes on to describe her attempts to move away from the role in which she suffered at the hands of her manager during the material time of this claim. She describes how she is getting on with her present team and she discusses her relationship with her new manager.[57]It is not until paragraph 10 of her impact statement that the claimant talks about moving to the future finance team from the management accounting team in August 2020. The claimant explains why she moved and then talks about the incidents she says she was exposed to.[58]It is not until paragraph 22 that the claimant refers to the impact of the treatment she says she suffered. The claimant says that the treatment has had an effect on herself and her children and that when she goes into the office she gets a lot of calls from them because on one occasion they witnessed her having a panic attack on a Teams call with her manager. The claimant says that she has issues sleeping, she has nightmares and is always restless at night. She says that she has been given a monitor to monitor her heart and her blood pressure.[59]The claimant also says that she is very tired in the mornings and has difficulty waking up, if she is not at work she is at home alone, does not speak to anyone and she just wants to be on her own. The claimant says that she does not shower, change her bedding or let anyone into her room because it is untidy. She says that she is always tearful and has a feeling of hopelessness.[60]In her oral evidence, and in contradiction to what is in the claim form and the disability impact statement, the claimant said that she did not have any problems in previous roles, that is to say prior to August 2020. The claimant also suggested that her problems stemmed from a mix of stress and dyslexia. She said, in answer to a question for me, that she had always had a learning difficulty, that she had coped with that but when stressed she could not cope. When she was asked what day to day activities were adversely affected, she said only that she did not read at church but that she could think of nothing else. Discussion and conclusion[61]I remind myself that the questions I must answer are as follows:a. did the claimant have a mental and/or physical impairment? (the ‘impairment condition’) 10 of 12b. did the impairment affect the claimant’s ability to carry out normal daytoday activities? (the ‘adverse effect condition’)c. was the adverse condition substantial? (the ‘substantial condition’), andd. was the adverse condition long term? (the ‘long-term condition’)? Did the claimant have a mental impairment?[62]The impairment the claimant says she has which amounts to a disability is dyslexia. There is no evidence from which I could conclude that the claimant is dyslexic. What can be said is that on the BDA Adult Checklist the claimant is said to have scored 77 which is a suggestion that if she was to be diagnosed as dyslexic then that would be moderate to severe. But as the checklist states, even that score does not give an indication of the difficulties any particular person may have as a result of the dyslexia. In this case the evidence is that the claimant got on with her work perfectly well, without difficulty, until August 2020 when she moved to her then new team. The claimant says that she coped previously but that the stress she was under in her new role made her not able to cope. The claimant did not actually refer to any coping strategies and I understood her evidence to be not that she struggled in the same way with for example reading and writing in her previous role but used coping strategies to deal with that, rather that the purported dyslexia did not previously have an impact, or a substantial impact, because she was not under stress.[63]Even if we ignore the label dyslexia and use the perhaps broader term learning disability, the issue is the same because the claimant has never had a diagnosis that she has a learning disability, it is her belief that she has such a disability and she has now given a label to that belief - dyslexia.[64]As well as the evidence that the claimant was not impaired in her previous roles, I also have the evidence in the bundle. The claimant drafted, albeit she says with some assistance from the Citizens Advice Bureau, the claim form, and she herself drafted not just the disability impact statement but also the responses to the requests for further particulars of both her claim for disability discrimination and her claim for race discrimination. The claimant has conducted her own advocacy at two preliminary hearings, and she seemed to me to have no particular difficulty representing herself both in the sense of responding to questions from Ms Grey and me, and also in understanding what was taking place and what was required from her in particular when we went through the issues and discussed all of the different types of discrimination claims she was seeking to make along with the details of those claims.[65]The most I can conclude from the evidence I have seen is that on the basis of responses she gave on a dyslexia checklist the claimant showed signs consistent with moderate or severe dyslexia but without wishing to labour the point, the BDA are very clear that the checklist is not a diagnostic tool, it does not constitute an assessment of an individual’s difficulties, it may be indicative that a problem might exist. 11 of 12[66]For the above reasons I am not able to conclude that the claimant did have either dyslexia or a learning disability at the material time. Did the impairment affect the claimant’s ability to carry out normal day-to day activities?[67]Even if I am wrong about that, and the claimant did meet the impairment condition, in my judgement the claimant does not meet the adverse effect condition.[68]The claimant’s description about the impact of her purported disability in her disability impact statement is completely about the impact of her treatment by her line manager not about the impact of any mental impairment on her day-to-day activities, although on another view there is quite a lot of information on what the claimant says about the impact of the stress and anxiety she says her treatment put her under. It seems to be fairly clear from the claimants disability impact statement, and from her oral evidence, that even if she does have a learning disability, that does not in and of itself have any or certainly not a substantial adverse effect on her ability to carry out day-to-day activities unless and until she is also subject to a certain level of stress and therefore in my judgement the evidence shows that in and of itself, any learning disability or dyslexia does not have a substantial adverse effect on the claimant’s ability to carry out dates day activities.[69]For either or both above reasons I find that the claimant was not a disabled person for the purposes of section 6 EqA at the material time and it is not necessary for me to consider the remaining Goodwin questions.
Findings of fact
[1]The claimant’s application to amend her claim to include 19 matters of direct discrimination because of the protected characteristic of race is refused.[2]The claimant’s claim of direct race discrimination is therefore struck out.[1]The claimant has been employed by the respondent since 29 September 2014. She started early conciliation with ACAS on 26 July 2021 and obtained a conciliation certificate on 6 September 2021 [page 1 of the bundle]. She presented her claim to the Employment Tribunals on 3 October 2021.[2]The claimant’s ET1 form [pages 2-13 of the bundle] indicated claims of race discrimination, disability discrimination and a claim for ‘other payments’ at paragraph 8.1 of the form [7]. The claimant also ticked the box in paragraph 8.1 1 of 13 that indicated that she was making another type of claim. The claimant wrote “Bullying & Harassment, Data Breach, False accusation, false grievance”[3]The claimant submitted a document titled “Claimant’s Submissions” [14-18] with her ET1.[4]In its response to the claimant’s ET1 dated 10 November 2021 [27-42], the respondent noted that (§60): “The Claimant has failed to set out any detail in either her ET1 or accompanying Submissions document as to the allegations relied upon by her in support of her contention that she has been discriminated against on the grounds of her race; or as to the precise form of race discrimination she alleges she has been subjected to by the Respondent. In addition, the Claimant has failed to identify any actual and/or hypothetical comparator.”[5]A telephone private preliminary hearing was held by telephone before EJ Martin on 9 May 2022. The claimant did not attend. She had not indicated that she was not going to attend, nor did she apply for an adjournment. The case management order dated 7 June 2022 [48-51] required the claimant to provide medical evidence explaining her absence.[6]A further telephone private preliminary hearing was held before EJ Frazer on 6 July 2022. The claimant attended and represented herself. The respondent was represented by Ms Gray, as it was today. In the narrative of the case management order dated 6 July 2022 [52-57, EJ Frazer noted (§§2 and 4): “I clarified with her as to whether she was bringing a race discrimination claim as she had ticked the box on the form. However, the way the allegations were worded made them appear as disability discrimination claims. She stated that she was bringing claims of both race and disability discrimination.” “Ms Grey indicated that the Respondent may wish to assert that some or all of the further information provided would require an amendment application. I have therefore directed it to say so at the time of filing the amended response. Then I have given the Claimant an opportunity to object and/or to provide an amendment application before the next hearing. If there is an amendment issue that can be considered by the judge at the next hearing.”[7]EJ Frazer ordered the claimant to provide further information about her race discrimination claims; ordered the respondent to file an amended response; and listed the case for a public preliminary hearing to decide: 1) whether the complaint(s) of unlawful disability discrimination contrary to the Equality Act 2010 should be dismissed if the claimant is not entitled to bring it if she does not have a disability within the meaning of section 6 and schedule 1 of the Act; 2) whether anything raised in the provision of further information submitted by the Claimant requires an amendment application to proceed and if so, to determine that application; 2 of 13 3) to identify the claims and issues and 4) to list for a final hearing and make any directions for the case to proceed to a final hearing.”
Law
[8]The claimant provided the further information in a document titled “Race Discrimination Claim” [130-132]. The respondent provided an amended response [60-87].[9]At an open preliminary hearing on 1 December 2022, EJ Brewer found that the claimant did not meet the definition of disability in section 6 of the Equality Act 2010 at the relevant time and struck out all her disability discrimination claims. The claimant’s claim for ‘other payments’ was dismissed upon withdrawal [88- 99].[10]EJ Brewer then converted the hearing to a private preliminary hearing to deal with the issue of amending the claimant’s race discrimination claim and produced a case management order date 2 December 2022 [126-131] that listed the hearing that I have conducted; set out 19 allegations of direct race discrimination; drafted a List of Issues; and made orders for the preparation of today’s hearing before me.[11]The respondent’s representatives wrote to the Tribunal on 2 February 2023 [100- 102] to oppose the claimant’s application to amend and seek a strike out under Rule 37(1)(a)(b) and (c). Ms Gray added subsection (d) this morning.[12]On 13 February 2023, the requested a postponement because of ill health (but did not copy in the respondent). EJ Crosfill rejected the application in a letter emailed to the claimant and respondent on 13 February. The letter indicated that the fact that the claimant was unfit for work did not mean that she was unable to attend the hearing and that she would need to explain what the difficulties are if she renewed her application.[13]On 15 February 2023 at 06:52am, the claimant emailed the Tribunal. Her email said “Please find attached my sick note from my doctor, due to my health and mental health I cannot attend the hearing for the 16 Feb as I am unwell.” The claimant attached a Form Med 3 (fit note) dated 14 February 2023 certifying that the claimant was unfit for work between 14 February 2023 and 15 March 2023 because of stress anxiety and depression.[14]EJ Crosfill refused the application by a letter dated 15 February 2023 that was emailed to the parties. The letter included a link to the Presidential Guidance – Seeking a Postponement of a Hearing dated 4 December 2023 and set out the reasons for refusal: “If you want a postponement you need to do more than supply a fit note saying you are unfit for work. If you follow guidance (linked) then your application will be considered. You must copy in the respondent.”[15]The case remained listed for today. 3 of 13 The hearing[16]The claimant is unrepresented. If she had attended, I would have reminded her that the Tribunal operates on a set of Rules (I have set out the link to those Rules below). Rule 2 sets out the overriding objective of the Tribunal (its main purpose), which is to deal with cases justly and fairly. It is reproduced here: The overriding objective of these Rules is to enable Employment Tribunals to deal with cases fairly and justly. Dealing with a case fairly and justly includes, 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 the proceedings;(d) avoiding delay, so far as compatible with proper consideration of the issues; and(e) saving expense. A Tribunal shall seek to give effect to the overriding objective in interpreting, or exercising any power given to it by, these Rules. The parties and their representatives shall assist the Tribunal to further the overriding objective and in particular shall co-operate generally with each other and with the Tribunal.[17]The purpose of this hearing, as ordered by EJ Brewer, was for me to consider the following matters:17.1 claimant’s application to amend her claim to include the complaints of race discrimination set out in paragraph 2.2 of the List of Issues:17.2 any applications made by the respondent consequent upon that application;17.3 if the case is to proceed to a final hearing, to consider the listing; and17.4 to make any necessary case management orders.[18]The respondent had produced a bundle of 125 pages with an index. The bundle did not have EJ Brewer’s case management order of 1 December 2022, so I obtained a copy from the office and added it to the bundle at pages 126 to 131. Where I have made reference to any of the pages in the bundle in these reasons, I have put the page numbers in square brackets (e.g. [23-34]).[19]The claimant was not in the waiting room of the CVP hearing at 10:00am. I asked my clerk to ring the clamant and determine if there was an issue. I was advised that the claimant did not answer the call and that my clerk had left her a message. 4 of 13[20]I then asked my clerk to send the claimant an email in the following terns: “Further to the telephone message I left for you earlier today, I have been asked to write to you by Employment Judge Shore, who is hearing your case today. EJ Shore has asked that you log in to the hearing as soon as possible. I have set out the joining details below. [log in details] If there is a reason why you cannot attend and wish to apply for an adjournment, then you should join the hearing and make the application, as your previous application to adjourn was refused on 13 February. If you have not responded to the telephone message or this email by 10:30am this morning, the Tribunal may proceed in your absence.”[21]At 10:25, I opened the hearing room and advised Ms Gray of what was happening. I also introduced EJ Comfort, who is a newly appointed Employment Judge, who is required to observe a number of hearings before his indication course. I explained that EJ Comfort was there as an observer only and would take no part in the decision-making process I had to undertake. I asked Ms Gray to log back in at 10:40am. At 10:40am, the Tribunal had heard nothing from the claimant and she was not logged into the CVP hearing.[22]I began the hearing by considering the claimant’s applications for postponement. I find that the claimant had failed to comply with the Presidential Guidance, even though it had been specifically drawn to her attention. EJ Crosfill had correctly advised the claimant that submission of a fit note was insufficient to obtain a postponement – more details were needed.[23]I find that the claimant failed to provide sufficient details about her health and its impact on her ability to attend the hearing to warrant a postponement. The overriding objective of dealing with cases justly and fairly must be applied by a balancing the interest of the parties. This is the fourth preliminary hearing in this case and the respondent and taxpayer have been put to expense and time in dealing with the claimant’s claims. I find that a further delay, whilst clearly disadvantaging the claimant, has not been shown by her to disadvantage her to a greater extent than the imperative not to waste time and costs. This is especially so when the Tribunal has tens of thousands of cases waiting to be heard.[24]I repeated the previous refusal of the application for postponement.[25]I find that the claimant knew of the hearing and the arrangements for joining it. She had known of the date and the matters to be considered since 1 December 2022. I find that she had made a conscious decision no to attend. I decided to proceed in the claimant’s absence. 5 of 13 Application to amend claim[26]I heard Ms Gray’s submissions on the claimant’s application to amend her claim to include 19 allegations for direct race discrimination. I find that the claimant had made an application to amend because I read the words of EJ Brewer in his case management order of 1 December 2022 (§21) to mean that the 19 allegations set out in the order are the subject of applications to amend.[27]I find that there is a need for the claimant to make application to amend, as the 19 allegations set out by EJ Brewer are not cited as allegations of direct race discrimination in the claimant’s ET1 and Claimant’s Submissions [14-18]. I make the following findings in respect of the Claimant’s Submissions:27.1 The claimant limits her claims to those incidents that started on 18 August 2020 (the document says 2021, but this must be a typo) (§3);27.2 The claimant makes 10 allegations (§§6.1 to 6.10);27.3 None of the 10 allegations are dated;27.4 There is no mention in the document of the phrase “race discrimination”. The only term used that implies a race discrimination claim is “Since starting work with the Respondent there have been various incidents concerning my ethnic background, gender and disability.” (§2);27.5 I find that the timescale of the claim as set out in paragraph 3 (starting on 18 August 2020), is different to the claim that there had been various incidents concerning the claimant’s ethnic background “since starting work with the respondent” (which was in 2014);27.6 Allegation 2 (§6.2) refers to the claimant being shouted at and being addressed as “a stereotypical angry black woman”;27.7 Allegation 8 (§6.8) refers to the claimant being denied an apprenticeship; and27.8 The claimant fully particularises her claim of disability discrimination.[28]I therefore find that, save for ticking the race discrimination box in paragraph 8.1 of her ET1, the claimant has not set out sufficient particulars of any claim of race discrimination in her ET1 or Claimant’s Submissions documents. I find that the claimant must successfully apply for amendment of her claim to be able to pursue any claim of race discrimination.[29]I make the following findings on the 19 allegations listed in EJ Brewer’s List of Issues dated 12 December 2022:29.1 None of the allegations in the List are contained in the ET1 and/or Claimant’s Submissions; 6 of 1329.2 Paragraph 6.8 of the Claimant’s submissions alleges denying the claimant an apprenticeship. Paragraph 2.2.19 of the List of issues alleges that RD told SJC not to support the claimant’s application for apprenticeship. Neither allegations are dated;29.3 The allegations in paragraphs 2.2.3, 2.2.4, 2.2.5, 2.2.9, 2.2.13, .2.2.14, 2.2.15, 2.2.16, 2.2.17 and 2.2.18 are also undated;29.4 The allegations in paragraphs 2.2.6, 2.2.7, 2.2.8 (all 2017), are dated, but predate 18 August 2020;29.5 I find the allegations at 2.2.4, 2.2.14, 2.2.15, 2.2.15 and 2.2.16 to be vague and insufficiently particularised;29.6 I find that the only claims that are particularised with sufficient clarity to enable the respondent and Tribunal to clearly determine the claims (i.e. who, what where and when) are 2.2.1, 2.2.2, 2.2.10, 2.2.12.[30]There is extensive jurisprudence on the question of amendments to Tribunal claims. The authorities regarding amendments are set out in a number of cases including Cocking v Sandhurst [1974] ICR 650, British Newspaper Printing Corporation (North) Ltd v Kelly [1989] IRLR 222, Selkent Bus Co v Moore [1996] IRLR 661, Housing Corporation v Bryant [1999] ICR 123, Harvey v Port of Tilbury (London) Ltd [1999] ICR 1030, Ali v Office of National Statistics [2005] IRLR 201, Abercrombie v Aga Rangemaster plc [2013] EWCA 1148. It was most recently considered by the EAT in Vaughan v Modality Partnership [2021] IRLR 97.[31]Mr Justice Underhill considered the appropriate conditions for allowing an amendment in Transport and General Workers Union v Safeway Stores Ltd UKEAT/009/07. In particular, he referred to the guidance of Mr Justice Mummery in Selkent Bus Company Ltd v Moore [1996] IRLR 661 where he set out some guidance. That guidance included the following points: (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 of 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 has to decide whether the amendment sought is one of a minor matter or is a substantial alteration pleading a new cause of action. 7 of 13(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 the 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 1978 Act.(c) The timing and manner of the application. [An application should not be refused solely because there has been a delay in making it. There are no time limits laid down in the Rules for the making of amendments. The amendments may be made at any time – before, at, even after the hearing of the case. Delay in making the application is, however, a discretionary factor. It is relevant to consider why the application was not made earlier and why it is now being made; for example, the discovery of new facts or new information appearing from documents disclosed in discovery. Whenever taking any factors into account, 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].”.[32]In the Safeway judgment, Mr Justice Underhill also referred to the judgment of the Court of Appeal in Ali v Office of National Statistics [2005] IRLR 201 where Lord Justice Waller referred to Mr Justice Mummery’s guidance in Selkent, pointing out that, in some cases, the delay in bringing the amendment where the facts had been known for many months made it unjust to do so. He continued: “There will further be circumstances in which, although a new claim is technically being brought, it is so closely related to the claim already the subject of the originating application, that justice requires the amendment to be allowed, even though it is technically out of time.” As Mummery J emphasised in Selkent: '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'.[33]In Evershed v New Star Asset Management UKEAT/0249/09, Underhill J stated that it was 'necessary to consider with some care the areas of factual inquiry raised by the proposed amendment and whether they were already raised in the previous pleading'. He carried out this exercise himself and concluded that the new evidence would be substantially the same as would be given in respect of the original claim, and, accordingly, allowed the amendment. The Court of Appeal approved this approach and agreed that the amendment did not raise 'any materially new factual allegations'. ‘[T]he thrust of the complaints in both is essentially the same'.[34]In Chandhok v Tirkey [2015] IRLR 195, the Langstaff J referred to the importance of the ET1 claim form setting out the essential case for a claimant, as follows: 8 of 13 “... The claim, as set out in the ET1, is not something just to set the ball rolling, as an initial document necessary to comply with time limits but which is otherwise free to be augmented by whatever the parties choose to add or subtract merely upon their say so. Instead, it serves not only a useful but a necessary function. It sets out the essential case. It is that to which a Respondent is required to respond. A Respondent is not required to answer a witness statement, nor a document, but the claims made – meaning, under the Rules of Procedure 2013, the claim as set out in the ET1. I readily accept that Tribunals should provide straightforward, accessible and readily understandable for a in which disputes can be resolved speedily, effectively and with a minimum of complication. They were not at the outset designed to be populated by lawyers, and the fact that law now features so prominently before Employment Tribunals does not mean that those origins should be dismissed as of little value. Care must be taken to avoid such undue formalism as prevents a Tribunal getting to grips with those issues which really divide the parties. However, all that said, the starting point is that the parties must set out the essence of their respective cases on paper in respectively the ET1 and the answer to it. If it were not so, then there would be no obvious principle by which reference to any further document (witness statement, or the like) could be restricted. Such restriction is needed to keep litigation within sensible bounds, and to ensure that a degree of informality does not become unbridled licence. The ET1 and ET3 have an important function in ensuring that a claim is brought, and responded to, within stringent time limits. If a “claim” or a “case” is to be understood as being far wider than that which is set out in the ET1 or ET3, it would be open to a litigant after the expiry of any relevant time limit to assert that the case now put had all along been made, because it was “their case”, and in order to argue that the time limit had no application to that case could point to other documents or statements, not contained within the claim form. Such an approach defeats the purpose of permitting or denying amendments; it allows issues to be based on shifting sands; it ultimately denies that which clear-headed justice most needs, which is focus. It is an enemy of identifying, and in the light of the identification resolving, the central issues in dispute. In summary, a system of justice involves more than allowing parties at any time to raise the case which best seems to suit the moment from their perspective. It requires each party to know in essence what the other is saying, so they can properly meet it; so that they can tell if a Tribunal may have lost jurisdiction on time grounds; so that the costs incurred can be kept to those which are proportionate; so that the time needed for a case, and the expenditure which goes hand in hand with it, can be provided for both by the parties and by the Tribunal itself, and enable care to be taken that any one case does not deprive others of their fair share of the resources of the system. It should provide for focus on the central issues. That is why there is a system of claim and response, and why an Employment Tribunal should take very great care not to be diverted into thinking that the essential case is to be found elsewhere than in the pleadings.” 9 of 13[35]In Abercrombie & Others –v- Aga Rangemaster Ltd [2013] EWCA Civ 1148 Lord Justice Underhill pointed out that the Selkent factors are neither intended to be exhaustive nor should they be approached in a tick-box fashion. There is nothing in the Rules or the caselaw to say that an amendment to substitute a new cause of action is impermissible. Further, at paragraphs 48 and 49 of the Abercrombie judgment, Lord Justice Underhill went to say: “Consistently with that way of putting it, the approach of both the EAT and this Court in considering applications to amend which arguably raise new causes of action has been to focus not on questions of formal classification but on the extent to which the new pleading is likely to involve substantially different areas of enquiry than the old: the greater the difference between the factual and legal issues raised by the new claim and by the old, the less likely it is that it will be permitted. It is thus well recognised that in cases where the effect of a proposed amendment is simply to put a different legal label on facts which are already pleaded permission will normally be granted.... We were referred by way of example to my decision in Transport and General Workers Union v Safeway Stores Ltd (UKEAT/0092/07), in which the claimants were permitted to add a claim by a trade union for breach of the collective consultation obligations under section 189 of the Trade Union and Labour Relations (Consolidation) Act 1992 to what had been pleaded only as a claim for unfair dismissal by individual employees. (That case in fact probably went beyond "mere relabelling" – as do others which are indeed more authoritative examples, such as British Printing Corporation (North) Ltd v Kelly (above), where this Court permitted an amendment to substitute a claim for unfair dismissal for a claim initially pleaded as a claim for redundancy payments.) It is hard to conceive a purer example of "mere re-labelling" than the present case. Not only the facts but the legal basis of the claim are identical as between the original pleading and the amendment: the only difference is, as I have already said, the use of the section 34 gateway rather than that under section 23. In my view this factor should have weighed very heavily in favour of permission to amend being granted. As the present case only too clearly illustrates, some areas of employment law can, however regrettably, involve real complication, both procedural and substantial; and even the most wary can on occasion stumble into a legal bear-trap. Where an amendment would enable a party to get out of the trap and enable the real issues between the parties to be determined, I would expect permission only to be refused for weighty reasons – most obviously that the amendment would for some particular reason cause unfair prejudice to the other party. There is no question of that in the present case.”[36]Most recently, in Vaughan v Modality Partnership [2021] IRLR 97 at [24], HHJ Tayler reviewed the authorities on amendment. The following principles emerged:36.1 the fact that an amendment would introduce a complaint which is out of time is a factor to be taken into account in the balancing exercise, but is not decisive [§15]; 10 of 1336.2 the Selkent factors should not be treated as a checklist, but must be considered in the context of the fundamental consideration: the relative injustice and hardship in refusing or granting an amendment [§16];36.3 the Tribunal may need to adopt a more inquisitorial approach when dealing with a litigant in person [§19];36.4 that balancing exercise should be underpinned by consideration of the real, practical consequences of allowing or refusing an amendment [§21];36.5 It is important to consider the Selkent factors in the context of the balance of justice [§24] - a minor amendment may correct an error that could cause a claimant great prejudice if the amendment were refused because a vital component of a claim would be missing; - an amendment may result in the respondent suffering prejudice because they have to face a cause of action that would have been dismissed as out of time had it been brought as a new claim; - a late amendment may cause prejudice to the respondent because it is more difficult to respond to and results in unnecessary wasted costs.36.6 where the prejudice of allowing an amendment is additional expense, consideration should generally be given to whether the prejudice can be ameliorated by an award of costs, provided that the other party will be able to meet it [§27].36.7 an amendment that would have been avoided had more care been taken when the claim or response was pleaded is an annoyance, unnecessarily taking up limited tribunal time and resulting in additional cost; but while maintenance of discipline in tribunal proceedings and avoiding unnecessary expense are relevant considerations, the key factor remains the balance of justice [§28].[37]I followed the jurisprudence set out above when making my decision, Particularly, I considered all the circumstances and the balance of justice. I make the following findings:37.1 The claim of race discrimination was not set out by the claimant in her ET1 or Claimant’s Submissions, other than by ticking the race discrimination box at paragraph 8.1.37.2 In order to proceed with any claim of race discrimination, the claimant has to amend her claim.37.3 I find that the claimant’s application for amendment was, at the earliest, her response to the order of EJ Frazer [52-37] requiring her to provide further information. That order was dated 6 July. I was not told the exact date that the claimant’s document “Race Discrimination Claims” was filed and served, so I will assume that it was filed and served on the first 11 of 13 possible date – 7 July 2022 – to give the claimant the greatest possible benefit of the doubt.37.4 I find that the claimant stared early conciliation on 26 July 2021 and obtained a conciliation certificate on 6 September 2021. She presented her claim on 3 October 2010.37.5 I find all the allegations of race discrimination first set out in the claimant’s document “Race Discrimination Claims” to be out of time – the time limit set out in section 123 of the Equality Act 2010. I do not find it just and equitable to extend time to allow the claims.37.6 On the Selkent points, I make the following findings:37.6.1 I find that this is not a rebadging exercise.37.6.2 I find that the race discrimination claims were not identified until July 2021, nearly 12 months after early conciliation started.37.6.3 The timing and manner of the application – The application was only effectively made when the “Race Discrimination Claims” document was filed and served. The respondent had made it clear in its ET3, filed in November 2021 that it required further information about the claim.37.6.4 I find that the claimant only actively sought to pursue the race discrimination claim after her disability discrimination claims had been dismissed37.6.5 For the reasons set out below, I find the balance of injustice and hardship supports the respondent’s position.37.7 The claimant is not represented.37.8 The real practical consequences of granting the application would be to save the claimant’s case, as all but the race discrimination claim has now been dismissed or withdrawn. It is therefore of crucial importance to her. If the application is granted, it will require the respondent to proof witnesses from its employees. It will add to the documents required for the final hearing and extend the time required for the hearing.37.9 Following the guidance of HHJ Tayler, I find that the amendment sought is not a minor amendment. Granting the application would ‘correct an error that could cause a claimant great prejudice if the amendment were refused because a vital component of a claim would be missing’.37.10 The amendment sought is late and would cause the respondent more cost and expend more time.37.11 The amendment may result in the respondent suffering prejudice because it may have to face a cause of action that would have been dismissed as out of time had it been brought as a new claim. 12 of 1337.12 I find that the prejudice cannot be ameliorated by an award of costs, or other sanction as the entire case now rests on granting or refusing the application.37.13 I find that this amendment would have been avoided had more care been taken when the claim was pleaded or defined. That is an annoyance, unnecessarily taking up limited tribunal time and resulting in additional cost. However, the key point is the balance of justice and hardship and I find that the injustice and the hardship is greater on the respondent than the claimant.
Findings of fact
[38]The application for amendment is refused. That means that the claimant’s claim of race discrimination is struck out, as it does not exist as a claim as set out in the ET1 alone.[39]I would add that had I allowed the amendment, I would have been minded to strike out the claimant’s claims for failure to actively pursue them.