Mr R Bialonski v National Oilwell Varco UK Ltd: 8001205/2024
EMPLOYMENT TRIBUNALS (SCOTLAND)
Case No 8001205/2024
Between
Mr R BialonskiClaimantNational Oilwell Varco UK LimitedRespondent
Before
Employment Judge J M HendryDate 20 February 2025
JUDGMENT
The claimant’s application to amend to include a claim for perceived race discrimination is refused.
REASONS
[1]The claimant in his ET1 sought findings that he had been unfairly (constructively) dismissed from his employment. He had completed the ET1 form himself. He had been employed as a Senior Design Engineer by the respondent company for some years. E.T. Z4 (WR)[2]The claimant resigned on 29 May with notice and his employment terminated on 21 June. The claimant took part in early conciliation on 25 June 2024. An ACAS Certificate was issued on 1 August 2024. His claim was lodged on 9 August 2024. These matters were not in dispute. The Respondents[3]The claimant in the narrative of his claim criticised the respondent’s Managers’ attitudes towards him alleging that he was intimidated and threatened by them.[4]The claims are resisted by NOV. They denied that the respondent’s Managers’ actions were intended to punish the claimant or that they had not acted reasonably throughout in their dealings with him.[5]The case was due to proceed to a case management hearing on 5 November 2024. On 29 September the claimant sent the Tribunal a list of files containing a list of documents in relation to his claim. He also wrote seeking to amend his claim: “I am writing to formally request permission to amend my ET1 form which was submitted in relation to my Employment Tribunal Claim against National Oilwell Varco (NOV). After further review and collection of evidence, it has become clear that my treatment by NOV is linked to discrimination based on my perceived status as a foreigner or outsider within the company. Whilst this discrimination is not directly related to my specific nationality, it has rooted my national origin and the perception that I was not part of the internal group within the company. I believe that this unfair treatment, which includes inclusion from team activities, mishandling of holiday requests, and the bias handling of the grievance and appeal processes, forms a valid basis for an amended claim of discrimination. I attach this letter as the addition to my original submission outlining the argument for discrimination based on my outsider/foreigner status which I respectfully request be included as part of my case.”[6]The claimant in a separate document sets out his amendment. He indicated that he was treated as an outsider. He had been excluded from decision making and that there was a perception “that I was a foreigner or not part of the established group”. The statement said that he was treated as expendable and alleged that there had been indirect discrimination and systemic bias and there had been preferential treatment given to the group that he described as “insiders”.[7]The respondent company lodged detailed objections to the application. They made reference to the case of Selkent Bus Co. Ltd v. Moore and then set out their submissions on the nature of the amendment, applicability of time limits, timing and manner of the application, the stage at which the application had been made and the likelihood of delay and additional expense. They emphasised that the matter was one for the discretion of the Tribunal.[8]It appears that the claimant lodged an amended ET1 form and the respondent’s agents pointed out that the claimant could not institute new proceedings with claims for discrimination without going through the ACAS process. However, they accepted that the claimant could seek to amend the existing competent process. They then set out what they believed would be the injustice and hardship to the respondent, the substantial amount of time and associated expense that adding a discrimination claim would entail.[9]At the outset of the hearing, I explained to the claimant the purpose of the hearing and broadly what was involved in an application to amend. I wanted to understand the claimant’s position, recognising that as a non-lawyer, he might not have set out his position as accurately as he might have done if he had taken legal advice in drafting it.[10]I would add that the claimant had taken the time to respond in detail to the respondent’s written objections. He disputed that there was a substantial alteration to the case suggesting that the facts, events and witnesses remain unchanged and it is simply a question of viewing the facts through the “lens” of the applicable discrimination laws. The position was that there were good reasons for the amendment and the balance of hardship was in granting it.[11]The claimant also wrote: “After discussions with Unite the Union and legal Counsel, I was led to believe that, as a white male, catholic, straight individual I could not be subject to discrimination under the Equality Act 2010 particularly as there was no overt racial slurs or derogatory terms directed at me.”[12]As noted earlier I was keen to understand the claimant’s claim and in particular why he had framed it as race discrimination by perception. I briefly explained what was involved in a claim for direct race discrimination. I cautioned him that unreasonable behaviour on the part of the employer was not enough and that there had to be something more that gave the suggestion or inference of race discrimination.[13]I rehearsed what I understood to be his position namely, that he’d been treated differently, and less favourably, than the “insiders” who he confirmed were all Scottish/British Managers. The claimant is Polish by nationality and has a Polish surname. I suggested to him that contrary to what he was saying this did on the face of it appear to be a claim for direct discrimination on the grounds of his nationality. I posed the question to him that it looked as if he was actually saying that he was treated less favourably because he was Polish. He remained convinced that the claim was for perceived discrimination.[14]I explained that I struggled with the fact that he had in his papers stated that he was not pursuing a claim for direct discrimination rather one for perceived race discrimination. I made reference to the case of Coffey which was mentioned by him and explained my understanding of the facts that had given rise to the claim for perceived discrimination there. I gave as an example of perceived race discrimination someone who was thought of, wrongly, as belonging a particular nationality and who suffered discrimination because of that wrongly perceived nationality. I also discussed with him the form of the amendment and whether there were any additional matters he could point to that might give an indication that the Managers were acting in a racially discriminatory way towards him other than in an unreasonable fashion as he contended.[15]We discussed the respondent’s objections. I challenged Mr Pollak to explain why the case would be more expensive and time consuming if a race discrimination claim was allowed to proceed as the Managers who were involved in these events are the same Managers who the claimant is accusing of discrimination. Mr Pollak pointed to the additional layer of complexity. He would have to take statements from these Managers and examine them in relation to their practices and views. He might have to call additional witnesses given that the claimant had called into question the probity of the HR Department and management in general. It was also clear that a claim for race discrimination would be out of time and the granting of dispensation under Section 123 of the Equality Act was ‘the exception rather than the rule’’ There was no good reason why this claim could not have been brought at the start.[16]I questioned the claimant on his knowledge of employment matters. He worked for the respondent for some years. He was proficient in English and although not knowledgeable about employment law practices he was able to carry out some research in order to raise proceedings on his own. He explained that he had joined the Union, Unite but they were unable to help him because the events he was complaining about occurred before him becoming a Union member. He had also at this point spoken to his solicitor and felt he had not been given incorrect advice by the Union and the solicitor. In his view there was no prejudice to the respondent. He had lodged the claim as soon as he had started putting together the paperwork for his dismissal claim and had taken the opportunity of reconsidering the events he was complaining about.[17]He took me through the circumstances of his resignation. It was the beginning of January, early February and he was trying to get help with the situation at work. In mid February he joined Unite. At work matters were moved on to a disciplinary meeting and a PIP. He lodged a grievance about the way in which he had been treated which was not properly dealt with. The grievance was refused and he appealed. He didn’t think the appeal manager had anything to do with the Managers who were subject to the grievance but he later discovered on LinkedIn that they were possibly known to each other. This deepened his suspicions of a cover up. His view is that the Appeal Manager was picked deliberately.[18]The Tribunal has wide powers of amendment and this includes allowing an amendment that brings in a claim that is otherwise out of time.[19]The starting point is the leading authority of Selkent Bus Co Ltd v Moore [1996] ICR 836. The approach set out there has since been affirmed by the Court of Appeal, for instance in Hammersmith and Fulham London Borough Council v Jesuthasan [1998] ICR 640.[20]In Selkent, the EAT confirmed that the Tribunal should take into account all the circumstances and should balance the injustice and hardship of allowing the amendment against the injustice and hardship of refusing it.[21]While the court observed that it was impossible and undesirable to attempt to list all the circumstances the EAT considered that the following to be relevant:(a) The nature of the amendment which can cover a variety of matters such as: i) The correction of clerical and typing errors; ii) The additions of factual details to existing allegations; iii) The addition or substitution of other labels for facts already pleaded; or iv) The making of entirely new factual allegations, which change the basis of the existing claim.(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.(c) The timing and manner of the application – it is relevant to consider why the application was not made earlier and why it is now being made: e.g. the discovery of new facts or new information appearing from documents disclosed on discovery.[22]In the present case the claimant faces a number of difficulties. The first is the nature or form of the amendment. The behaviour the claimant is describing does not appear to be discrimination by perception. He was aware of the case of Chief Constable of Norfolk v Coffey. Although the Equality Act does not refer to discrimination by perception it is an established prohibited type of conduct. In that case Underhill LJ offers a simple definition namely where A discriminates against B because he thinks that they have a particular protected characteristic when they do not. This is not what the claimant is saying in his amendment. Being an outsider is not a protected characteristic.[23]Because of the way the claimant has proceeded the amendment does not link the behaviour complained of to race discrimination. Even if I was to accept that the amendment was in reality an amendment to bring in facts capable of being direct race discrimination, and this is not what he is arguing, then it faces other difficulties. The facts/circumstances of being treated as an outsider were known to the claimant at the time he raised proceedings. I find it difficult to accept that a Trade Union and let alone a solicitor would tell him that he could not be discriminated against. I suspect that the advice may have been misconstrued but in any event it must be apparent that someone could be discriminated against because of their faith or nationality and so on.[24]The claimant is an able and intelligent person who has access to the internet and the advice on employment matters that can be obtained there. I am not convinced that there is a good reason why the claim for race discrimination in some form wasn’t made at the outset.[25]This impacts of the possible exercise of discretion and I accept the thrust of Mr Pollak’s argument that a new claim for race discrimination would add to the complexity of the case and be likely to incur the company in additional expenses in defending such a claim.[26]Looking at the matter in the round I am not convinced that it would be appropriate for the Tribunal to allow the new claim out of time and the application is refused.[27]The respondent’s agents objected on 29 November 2024 again setting out their objections in a written document. They pointed out that the incidents referred to by the claimant were time-barred and once more raised the issue of the timing and manner of the application arguing that the claimant could have raised proceedings many months ago. They made reference to what they regarded as a substantial amount of time and associated cost that the respondent would be put to if the amendment was allowed involving calling at least two additional witnesses (they originally anticipated 4 to deal with the unfair dismissal claim) and further investigations. Mr Bialonski responded on 2 December accusing the respondents of exploiting legal technicalities and procedural complexities to avoid their client’s accountability. He suggested that it was important to look at in effect the broader picture or context in which events had occurred. The core issues were he indicated, the PIP process, his manager’s contradictory statements, and HR’s involvement in the processes that impacted him.[28]A hearing was arranged for 6 February 2025 to hear parties in relation to the amendment.[29]At the outset, I summarised where we were in relation to the lodging of the amendment and the various documents that I had to consider. I explained that I wanted to focus on the amendment and clarify some issues. I asked the claimant for his broad understanding of direct and indirect discrimination. The claimant has clearly researched his position and it appears clear that he has a grasp of the differences namely direct discrimination is where someone is treated less favourably because of a protected characteristic (race) whereas indirect discrimination is where some PCP impacts someone with a protected characteristic and causes them substantial disadvantage.[30]We discussed the form of the amendment. I raised with him that his amendment refers to direct discrimination but also indicates indirect discrimination. The claimant suggested that there might have been communication difficulties which were exacerbated by English not being his first language and his cultural background. He has not said what these were or given examples. Essentially, he felt that he had been targeted in some way because of his Polish nationality.[31]In relation to the first paragraph the claimant raises the fact that British/Scottish Senior Engineers in his team were assigned zero days of “engineering support”. I asked him what this was. It appears that engineers took it in turns to provide engineering support outside the team to other parts of the organisation. This was an onerous activity. He felt that the work was not allocated properly. I asked him who would allocate this work. He said that it would be his line manager. I asked him over what period this took place and his position was that broadly all the difficulties he experienced started in 2003 and continued until the end of this employment.[32]In relation to paragraph 3 I pointed out that there was no detail of the longer deadlines to which he refers. If he was to lead evidence about these matters and if he was to go beyond this assertion he would have to give Mr Pollak notice of the incidents or circumstances to which he is referring and at least some examples of them.[33]We then discussed broadly the more important issue of the claimant feeling targeted. I asked him why he came to this conclusion. Essentially his position is that other staff were British/Scottish and they were treated more favourably in a number of ways than he was. They were taken more seriously and their position accepted uncritically. The complaints they made were treated seriously. He explained that if they made any allegation against him it was taken as correct.[34]The claimant accepted that towards the end of his employment relationships between him and senior managers was difficult. I asked him in relation to paragraph D why those allegations as he put it “targeted” his Polish nationality. The amendment was suggesting that the various actions that were taking place were because he was Polish.[35]The claimant confirmed that there were no slurs or other matters that he could point to from which a Tribunal could infer that there is a discriminatory motive behind the managers’ actions. His vehement position was that he was simply treated differently to his Scottish/British colleagues.[36]In relation to taking legal advice on his position he explained that he tried to obtain legal advice. Once he had left the company his union were not interested in assisting him. He did speak to a solicitor and his trade union before this occurred but he did not get in depth advice from them. He explained that their position essentially was that he did not have a sufficiently obvious claim and they were not prepared to investigate the matter. The claimant expressed the view that he does not believe that the respondents will be put to any significant additional expense.[37]We discussed witnesses. Mr Pollak indicated that he intended calling Jack Brewer, the claimant’s Line Manager, Phil Emslie, who was involved in the PIP, Shona Bruce, who investigated the grievance and the Appeal Manager, Andrew Robertson. The claimant wants to call a Miss Skelly from HR and the respondents have no difficulty. We discussed the length of any hearing and it was agreed that a five day, in-person Hearing would be assigned. If the amendment allowing the claim is allowed then both sides indicated a preference for a full panel. If it remains simply constructive dismissal then the final hearing will be for a Judge sitting alone. Discussion and Decision[38]The claimant in his second amendment has attempted to address the problems that were pointed out to him that his first amendment raised.[39]The Tribunal has wide powers of amendment. Allowing or refusing an amendment is discretionary. The law is well trodden but nonetheless it can sometimes be difficult to apply in practice. The common factors that a Tribunal has to deal with are set out in the case of Selkent Bus Co Ltd v Moore [1996] ICR 836. In Selkent, Mummery J stressed that this overall assessment involves consideration of all of the relevant factors and stated that it is impossible and undesirable to attempt to list them exhaustively. He noted a number of factors that will generally be relevant to the assessment: the nature of the amendment, the applicability of time limits and the timing and manner of the application. Those factors are not a checklist to be ticked off (Abercrombie v Aga Rangemaster Ltd [2014] ICR 209).[40]The paramount importance of balancing the injustice and/or hardship caused by allowing or refusing an amendment has been emphasised repeatedly (Vaughan v Modality Partnership [2021] ICR 535). It goes without saying that the Tribunal must be even handed in it’s approach and consider both sides positions.[41]Accordingly, in deciding if an amendment should be granted the first task is to identify the amendment being sought and the second to consider all the factors when considering the balance of injustice or hardship caused in refusing or granting the amendment. It is important to bear in mind that an amendment can be refused or granted. If granted it can be allowed in whole or in part.[42]The starting point is the ET1 which the claimant completed himself. It should contain a statement of all of his claims. It does not seek to make a claim for discrimination. It does reference ‘‘fabrication of false concerns’’, a ‘‘lack of impartiality’’ and generally bias. The second amendment gives some examples of different treatment (being apparently excluded from a group photograph, the allocation of engineering support work and unfairly being put on a ‘‘PIP’’). It is surprising that it has taken the claimant some time to come to the view that his race was an issue in his treatment. As Mr Pollak pointed out the form of the amendment leaves much to be desired as it is not as clear as it could be if the claims are for direct discrimination. In relation to indirect discrimination the claimant has given no examples of how there might be a PCP at work which disadvantages him other than to say there might be a language problem, He has given no examples. There is a lack of specification.[43]The claims are new and are out of time. This is not in itself a bar to amendment but an important consideration for the Tribunal to take into account. The Tribunal can extend the time in relation to claims for discrimination. It must be just and equitable to do so. The claimant’s position is that he was misled by the advice he had initially been given which he took to mean that as a white male he could not be discriminated against. The advice, such as it is, seems on closer examination appears to say no more that absent some obvious issue that points to race (e.g. racial slurs) that no claim is possible. It may be that the claimant misunderstood that advice but it is odd that he did not consider race discrimination given that the first amendment also focussed on what he regarded as being differences in treatment compared to Scottish/British colleagues and him being an outsider.[44]An important factor is that if allowed the respondent company would be put to considerable additional cost. The allegations are akin to institutional racism/bias. The hearing would be more complex, it would be lengthened as additional witnesses would have to give evidence about HR processes and the existing witnesses re-precognosced in relation to these new matters rather than being able to just focus on the issue of unfair dismissal. This is in my view an important factor favouring the rejection of the amendment.[45]The Tribunal has, as yet, heard no evidence. The respondent company have a clear position which they say justifies the treatment of the claimant (with which he disagrees). I am concerned about the merits of the potential new claims as even if taken at their highest. Leaving aside the form of the amendment the claimant’s principal position was really one of direct discrimination. The merits of such a claim are a factor here. I do not believe that it has reasonable prospects of success as stated.[46]I explained to the claimant that he had to show that the motivation for the apparent difference in treatment was his race. I asked him to consider any events that might assist him with this but he was unable to add anything to the amendment.[47]In the case of Madarassy v Nomura the Court of Appeal in England ruled in favour of the employers against a claimant making claims for sex discrimination. In particular, it said that to establish a prima facie case, there needs to be something more than a set of circumstances where the tribunal “could” conclude discrimination. The differences in status or treatment was not sufficient. In most areas, the court said that the claimant had not successfully demonstrated a prima facie case of discrimination and in those areas where she had crossed that threshold, Nomura had successfully explained the reasoning behind the treatment on grounds other than sex.[48]Although I have no doubt that the claimant feels genuinely aggrieved at his treatment and has come to the view that his colleagues were treated more favourably that he was that is not enough. For this and the other reasons I have set out above I am of the view that the balance of hardship favours the respondent. While the claimant will not be able to advance a claim for race discrimination he has an existing claim for unfair dismissal in which he can explore the reasons for his treatment which forms the basis of his claim for constructive dismissal.