MR L LEWIS v BLUE ARROW CARE LTD [1999] UKEAT 694_99_2306

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [1999] UKEAT 694_99_2306Case No Appeal No. EAT/694/99Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR L LEWISAPPELLANTBLUE ARROW CARE LTDRESPONDENT
Before
His Honour Judge Peter Clark Mr P A L ParkerDate 23 June 1999
[1]APPEARANCES For the Appellant MR S RAHMAN (of Counsel) Messrs Bart-Williams & Co Solicitors 97a Ilford Lane Ilford Essex IG1 2RJ For the Respondents MR C SHELDON (of Counsel) Instructed by: Mr C Martin The Corporate Services Group Plc Glaston Park Spring Lane Glaston Rutland LE15 9BX JUDGE PETER CLARK : This is an appeal by the applicant before the London (North) Employment Tribunal, Mr Lewis, against an interlocutory decision by the tribunal, promulgated on 12th April 1999, refusing his application for leave to amend his Originating Application to add a claim of victimisation under s. 2 of the Race Relations Act 1976 . Background On 29th September 1998 the appellant presented an Originating Application to the tribunal naming Blue Arrow Care Ltd as respondent. In Box 1 he identified the nature of his complaint as "race discrimination". In the Particulars of Complaint he averred that he is of African ethnic origin, born in the United Kingdom and was brought up in Sierra Leone. He has lived in the United Kingdom since 1984. He applied for registration with the respondent employment agency as a residential social worker. On 2nd July 1998 he was interviewed for the position by Carole Metcalfe at their Ealing Branch. His application was unsuccessful. He alleged that Ms Metcalfe said that she needed to see his passport. He pointed out that he had given the respondent his National Insurance number and offered to show her his National Insurance Card with birth certificate and work identification. He had said on his application form that he did not require a permit to work in the United Kingdom.[2]During the interview, he alleged, Ms Metcalfe pressed him to explain why he had come to the United Kingdom, the frequency of his visits to Sierra Leone and their duration. She asked whether he intended to stay in this country. He assured her that he had no intention of visiting Sierra Leone other than for holidays with his family there. He assured her that he had permission to work in the United Kingdom.[3]He complained that in those circumstances, and in refusing to register him, he had been treated less favourably on the grounds of his race than other applicants for registration. He claimed that he had suffered unlawful racial discrimination and sought a declaration, compensation including injury to feelings and interest.[4]Prior to lodging his Originating Application the appellant had written to Sue Pilgrim, the respondents' Area Manager, on 13th May 1998, complaining that he had been dismissed by the respondent on 5th May because he had been involved in Industrial Tribunal proceedings with Blue Arrow in August 1996, in which he had alleged racial discrimination. In that letter he alleged victimisation in terms. He requested certain information within 14 days, failing which he would issue IT proceedings without further notice.[5]The present claim was resisted. By a Notice of Appearance lodged with the tribunal on 21st October 1998 the respondent gave some of the history. It was said that the appellant was originally registered with the respondent as a temporary worker at their Putney branch between May 1997 and May 1998. During that year he received 44 bookings for work.[6]It then transpired, they claimed, that he had been previously registered with a subsidiary company of the respondent, a fact that he had not declared when registering with the Putney branch. That was in breach of the respondent's rules. He was suspended.[7]Following correspondence, including the appellant's letter of 13th May, the respondent decided to make an exception to their standard procedure by giving him the opportunity to reapply for registration on condition that he declared the whole of his work history.[8]As a result he made the application which led to his interview with Ms Metcalfe at the Ealing branch on 2nd July.[9]The respondent disputed the appellant's account of that interview and denied that he was told he would not be appointed to the position. He was told that his registration could not be completed until his full employment history had been verified.[10]The allegation of less favourable treatment was denied, it being contended that the respondent adhered to its internal procedures. Employment Tribunal hearing[11]The matter came on for hearing before a tribunal chaired by Mrs R S Martin on 23rd March 1999. The appellant was represented by a solicitor, Mr Murray. The respondent was also represented by a solicitor, Mr Martin. The appellant's solicitors, Bart-Williams & Co, had written to the tribunal on 22nd January 1999 stating that they were advising him under the Legal Advice and Assistance scheme. The tribunal found that from the 29th January the appellant had been represented by solicitors.[12]The hearing date had earlier been postponed, first from 30th November 1998, due to outstanding discovery issues, and then from 2nd-3rd February 1999 because the appellant had then been ill.[13]On 23rd March the appellant gave evidence. During his evidence he repeatedly claimed that he had been victimised by the respondent in that he had been on their register at the Lewisham branch between September 1995 and January 1996, and had brought a claim of race discrimination which had been settled ["the protected act"]. He made a link between the protected act and the treatment which he alleged that he received on 2nd July 1998.[14]At the end of the appellant's evidence the Chairman raised with the advocates the question as to whether the Originating Application contained any claim of victimisation. Mr Murray conceded that this was an oversight, but no application was then made for leave to amend. The tribunal went on to hear part of the respondent's case and then adjourned until the next day.[15]On the following morning, 24th March, Mr Murray made a formal application for leave to amend the Originating Application to include a specific complaint of victimisation. We are told that no draft form of amendment was placed before the Employment Tribunal. Indeed, none has been put before us. The application was resisted on behalf of the respondent by Mr Martin, who referred the Employment Tribunal to the Court of Appeal decision in Bryant v The Housing Corporation 21st May 1998 , now reported at [1999] ICR 123 .[16]Having considered the parties' representations, the tribunal refused the application. Their reasons for doing so are set out at paragraph 9 of their reasons thus:
"(i) The Originating Application contains no ambiguity and no narrative to give any indication that a claim for victimisation was being pursued. (ii) We have taken account of the fact that in the early stages of these proceedings the Applicant was not represented by solicitors, although there is a letter on the file dated 13 May 1998 from Mr Lewis to Mrs Pilgrim, the area manager at Blue Arrow Care, in which he stated that he had taken legal advice about his position and the possibility that he could bring a claim to an Employment Tribunal which would include a claim of victimisation. (iii) By 29 January 1999 Mr Lewis was certainly receiving legal advice and no application was made at that stage or at any other time subsequently, or at the beginning of this hearing on 23 March for the Originating Application to be amended. (iv) The Tribunal has a discretion under the Race Relations Act 1976 section 68(6) to consider an application which is out of time if in all the circumstances it considers it to be just and equitable to do so, and we have to consider the circumstances from the position of both parties. (v) We accept that for some time after he lodged his complaint Mr Lewis was an Applicant in person. However from 29 January 1999 he had the benefit of legal advice. His solicitors conceded on 23 March that it was their oversight that no earlier application to amend the Originating Application had been made. (vi) We therefore find that it is not just and equitable for this amendment to the Originating Application to be made and we have therefore refused it."
The tribunal then adjourned the substantive hearing pending the outcome of a proposed appeal to the Employment Appeal Tribunal. That is the matter which is before us today. Amendment[17]In Selkent v Moore [1996] IRLR 661 the then President of the EAT, Mummery J, gave guidance as to the principles to be applied by Employment Tribunals when considering applications for leave to amend an Originating Application. The decision whether to grant or refuse leave involves an exercise of discretion. In deciding how to exercise that discretion, the tribunal should balance the injustice and hardship of allowing the amendment against the injustice and hardship of refusing it. Relevant factors include:(1) The nature of the amendment. Is it a matter of correcting errors, adding detail to existing allegations or the addition or substitution of other labels for facts already pleaded? Alternatively, does the amendment involve a substantial alteration making entirely new factual allegations which change the basis of the existing claim?(2) If a new cause of action or complaint is to be added it is essential for the tribunal to consider whether the proposed new complaint is out of time and if so, whether time should be extended under the applicable statutory provisions, either the reasonable practicability or the just and equitable ground.(3) The timing and manner of the complaint. Although there is no time limit for making an amendment, and an application should not be refused solely because there has been a delay in making it, it is relevant to consider why the application was not made earlier. An application made close to the hearing date (or, as in this case, during the hearing) usually calls for an explanation as to why it was not made earlier, particularly when the new facts alleged must have been within the knowledge of the applicant when the Originating Application was first presented.[18]The facts and determination by the EAT in Selkent are instructive. This was an employer's appeal against a Chairman's order granting leave to amend the Originating Application in the following circumstances. On 20th October 1995 the applicant employee was dismissed by the respondent, Selkent. On 1st December 1995 he presented an Originating Application complaining of "Unfair dismissal". The particulars of his complaint made no mention of any claim that he had been dismissed for a reason connected with his trade union activities. The respondent, by its Notice of Appearance, contended that he had been dismissed by reason of conduct. A hearing date was fixed for 14th February 1996.[19]On 20th January 1996 the applicant's solicitor wrote to the tribunal applying to amend Box 1 of Form IT1 to read "Unfair dismissal by reason of s. 57 of the Employment Protection (Consolidation) Act 1978 and/or s. 152 of the Trade Union and Labour Relations (Consolidation) Act 1992", that is, dismissal by reason of trade union activities or membership. He gave Particulars of that claim under s. 152.[20]A Chairman granted leave to amend before receiving a response from the respondent's solicitors opposing the proposed amendment. The hearing was then adjourned pending an appeal by the employer.[21]The EAT allowed the appeal on the grounds that the amendment relied on facts not earlier pleaded, in support of a new case of automatically unfair dismissal for trade union activities. There was no explanation as to why those facts, which must have been made known to the applicant at the time of lodging the Originating Application, were not then alleged. Refusal of leave to amend would not cause hardship to the employee since it would not prevent him from pursuing his claim of unfair dismissal, indeed, he would suffer greater hardship if the amendment was granted because of the increased costs. The EAT substituted its own decision that the amendment be refused.[22]In the course of argument it had been submitted on behalf of the applicant employee that the amendment raised no new course of action, relying on previous EAT decisions in Dodd v British Telecommunications Plc [1988] IRLR 16 and Quarcoopome v Sock Shop Holdings Ltd [1995] IRLR 353 . In that latter case, which in turn referred to Dodd , the Originating Application, presented in time, referred to "Unfair dismissal, race discrimination, unlawful deductions of wages". Two paragraphs in the Particulars of Complaint related to race discrimination, however there was no specific reference to indirect discrimination. At the hearing before the Employment Tribunal Counsel for the applicant indicated that he wished to present a claim of indirect race discrimination. The employers objected on the ground that the applicant was seeking to raise a new claim out of time. The Chairman refused to grant leave to amend, holding that it was for the applicant to make a complaint of indirect discrimination at an early stage in the proceedings and that it was not just and equitable to consider that complaint.[23]The applicant appealed successfully to the EAT, which held that the Chairman was wrong to find that the original claim of race discrimination did not cover the later claim of indirect race discrimination. The case was remitted for the Employment Tribunal to determine whether the employer would suffer hardship or prejudice sufficient to justify rejecting the application for leave.[24]In the course of his judgment, given on behalf of the EAT in that case, Buckley J said this, at paragraphs 12 to 13:
"… An originating application that makes a claim, as this one did, for race discrimination, in our view incorporates any claim for race discrimination, whether it be under 1(1)(a) or (b) or s.2, discrimination by way of victimisation, or any other claim that may be made on the grounds of race under that Act. The fact that there are different sections and different ways that people can discriminate cannot, in our view, detract from that and one of the cases to which we have been referred turn us away from that view. Indeed, they support us in it. We therefore conclude that the application to amend or to particularise, whichever it was, was not time barred; and the test that the tribunal should have applied at the very highest, and this is on the basis that it was an application to amend rather than just to particularise, was to see whether any hardship or prejudice would be incurred by the respondents sufficient to justify rejecting the application and, in answering that question, of course, the tribunal would have to have in mind that if they reject the application they are, in effect, shutting out a claim which the applicant wishes to make. That is a very strong action to take and one which we would imagine tribunals would be very slow to adopt. …"
[25]In Bryant the applicant presented an Originating Application alleging a claim of unfair dismissal in time and a claim of direct sex discrimination out of time. An application for an extension of time to bring the latter claim was refused by a Chairman of tribunals. The applicant's representative then applied for leave to amend the Originating Application to bring a claim of victimisation under the Sex Discrimination Act 1975 , relying on the dismissal as the act of victimisation by reason of an earlier protected act not originally pleaded. That application was refused by the same Chairman on the basis that the proposed victimisation claim was out of time and it was not just and equitable to extend time.[26]Against that decision the applicant appealed successfully to the EAT, this Court holding that the claim as originally pleaded did reveal some grounds for a claim of victimisation and that the Chairman had erred in not extending time on the ground that he had failed to notice the different periods by which the claims of direct discrimination and victimisation were out of time.[27]On appeal by the employer the Court of Appeal restored the Chairman's decision. In particular, the Court of Appeal held that the proposed amendment raised a new claim; nowhere in the original pleading was any link made between any protected act (none being pleaded) and the dismissal. We observe that the case of Quarcoopome is not referred to in the judgments in the Court of Appeal. The Appeal[28]Mr Rahman relies heavily on the dictum of Buckley J in paragraph 12 of the judgment in Quarcoopome , a case not cited to the Employment Tribunal below. He submits that the Originating Application in this case, which refers to a claim of race discrimination brought within time, necessarily incorporates a claim of victimisation under s. 2 of the Race Relations Act 1976 . The tribunal erred in finding, in paragraph 9(i) of their reasons, that there is no indication that a claim of victimisation was being pursued. Further, a victimisation claim had been intimated to the respondent in the appellant's letter of 13th May. The point could be put to Ms Marlowe in cross-examination without significantly broadening the factual issues.[29]As to the balance of hardship, that plainly favoured the appellant who would be prevented from running a strong claim of victimisation on its merits.[30]As a matter of policy, he submits, the Employment Tribunals should avoid an over-legalistic approach to matters of pleading, particularly by an applicant in person, as was this appellant when the Originating Application was lodged.[31]Mr Sheldon, relying on the Court of Appeal's approach in Bryant , submits that the tribunal's finding at paragraph 9(i) was wholly justified on a fair reading of the Particulars of Complaint set out in the Originating Application. The proposed amendment raised a new claim. Further, as a matter of law, there is a material difference between a claim of direct race discrimination and one of victimisation. The former requires a comparison to be made between the applicant and a person of different racial origins in similar circumstances; for victimisation, the comparison is between a person who did the protected act, the applicant, and a person who did not. There is no racial element in the comparison. Further, the act complained of must be done by reason of the protected act. That differs from the 'but for' test to be applied in cases of direct discrimination. He relies particularly on the judgment of Peter Gibson LJ in Bryant for the distinction. Conclusion[32]We have concluded that, in the light of the authorities, this is a new claim as the tribunal found. The observation by Buckley J in Quarcoopome that a claim of race discrimination includes a claim of victimisation was not necessary for the detemination in that case and should be treated as an obiter remark. In our view, it cannot properly stand in the light of the Court of Appeal's judgment in Bryant . Further, the fact that the appellant raised a potential claim of victimisation in his letter to the respondent of 13th May 1998 makes it all the more clear that he was not pursuing such a claim in relation to the interview held subsequently on 2nd July on a fair reading of the Particulars of Complaint contained in the IT1.[33]As to the balance of hardship, we think it implicit in the tribunal's reasoning that the hardship to the respondent of meeting a new as yet still unparticularised claim on a wider factual footing halfway through the substantive hearing of the case, outweighed the prejudice to the appellant, who is still able to pursue an extant claim of direct racial discrimination. See Selkent .[34]Finally, we bear in mind that matters of case management will normally be left to the Employment Tribunal. We can only interfere where an error of law is made out. We are not satisfied that this tribunal fell into error in refusing the application for leave to add a claim of victimisation and in these circumstances we shall dismiss this appeal and direct that the original tribunal hearing be resumed on the basis of the claim as pleaded in the Originating Application.[35]Legal Aid taxation granted to the appellant.