MR P MCKENZIE v TEEN SPIRIT LTD [2008] UKEAT 0599_07_1101

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2008] UKEAT 0599_07_1101Case No Appeal No. UKEAT/0599/07Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR P MCKENZIEAPPELLANTTEEN SPIRIT LTDRESPONDENT
Before
His Honour Judge McMullenSir Alistair Graham Kbe Mr H SinghDate 11 January 2008
[1]APPEARANCES For the Appellant MS C CASSERLEY (of Counsel) Instructed by: Equality and Human Rights Commission Legal Services 2nd Floor Arndale House The Arndale Centre Manchester M4 3AQ For the Respondent MR M WEST (Representative) Peninsula Business Services Ltd Litigation Department Riverside New Bailey Street Manchester M3 5PB SUMMARY Practice and Procedure - Amendment The Claimant brought claim 1 on the basis of victimisation on account of his concern for a disabled customer, and claim 2 on the grounds of his dismissal. In dealing with the Claimant's application seeking within the three month period to amend claim 2 to add new claims relating to his own disability, the Employment Judge erred in looking exclusively at claim 1. Remitted to a different Employment Judge to determine the amendment and whether claim 3 which includes the new grounds should be admitted. HIS HONOUR JUDGE McMULLEN QC Introduction This case is about the exercise of discretion by an Employment Judge in refusing to allow amendments to a claim form to add claims under the Disability Discrimination Act 1995 ("DDA") in respect of the Claimant's own disability, as opposed to another's disability or victimisation of himself for raising protected matters. I will refer to the parties as the Claimant and the Respondent.[2]It is an appeal by the Claimant in those proceedings against a judgment of Employment Judge Walker sitting alone at a PHR on 24 September, sent to the parties on 11 October 2007. The Claimant was represented by a legal officer of the DRC, the Respondent by a consultant. Today they are represented respectively by Mrs Catherine Casserley of Counsel, instructed by the CEHR and Mr Martyn West, consultant of Peninsula. The facts[3]The procedural background to this is complicated and I will give only the minimum factual material.[4]On 30 March 2007, the Claimant presented a claim alleging victimisation contrary to the DDA in relation to his employment in the Respondent's arcade business. I call this claim 1. On 5 May 2007 the Respondent, gave him notice of dismissal with effect from 1 June 2007. Reasons for the dismissal were given on 22 May 2007. The Claimant asserts that as a result of theses reasons for dismissal, a second claim, claim 2, was presented on 5 June 2007 alleging dismissal and victimisation contrary to the DDA. The Respondent's response was presented on 3 July 2007.[5]The Claimant quickly formed the view that there should be an application to amend claim 2. The scope of the amendment has been accurately summarised as consisting of the following (which I will call grounds, as distinct from claims):• Ground 1 – that the Claimant was dismissed contrary to s.4(2)(d) and within the meaning of s.3A(1) of the Act• Ground 2 – that the Claimant was discriminated against by being subjected to a detriment, contrary to s.4(2)(d) and within the meaning of s.3A(1), in that the Respondent failed to arrange a hearing to address his grievance• Ground 3 – that the Claimant was discriminated against by being subjected to a detriment, contrary to s.4(2)(d) and within the meaning of s.3A(1) in that job advertisements were placed in the local press on two occasions for his job• Ground 4 – that the Respondent discriminated against the Claimant in that he failed to comply with the duty to make reasonable adjustments to enable the Claimant to return to work, within the meaning of s.3A(2), thereby subjecting him to a detriment contrary to s.4(2)(d). At least one of these relates to associative discrimination, that is being unfairly treated as a result as your attitude to somebody else's disability and it is presently the subject of a reference to the European Court of Justice. [Now see the Advocate-General's opinion Coleman (Social policy) [2008] EUECJ C-303/06_O (31 January 2008) ][6]The applications for amendment were presented on 22 August 2007. A CMD was due to occur on 30 August 2007, which was vacated in response to an application by the Respondent. Had that hearing taken place it would have been within the three-month time scale for the presentation of a claim. If it is just and equitable to extend the period a Tribunal may do so: DDA schedule 3 paragraph 3. Instead, a PHR was set up and took place on 24 September 2007, which resulted in the Employment Judge's refusal to allow the amendments as sought. He did however indicate that it was open to the Claimant to launch fresh proceedings in relation to the four new grounds. He ordered that this be done by no later than 5 October 2007, in which case there would be the usual 28 days for the Respondent to respond and he ordered a stay until 8 October 2007. If a new claim were submitted, the stay would remain until the response then consideration would be given. No objection was taken by the Respondent to that stay and to those steps.[7]As a matter of fact a new claim, claim 3, has now been submitted to the Tribunal and there has been a response. Claim 3 contains the four new grounds. It is subject to some further barriers. The Respondent raises time points, of course, and raises issue relating to the failure by the Claimant to go through the statutory grievance procedure before presenting these claims. Those matters would need to be determined at some stage.[8]The Employment

Judge reached the conclusion that there should be no amendment, saying this:

"13 In my judgment this Application to Amend raises, in the case of the First and Fourth grounds, entirely new matters completely different in nature from his original claims presented on 30 March 2007 and raise completely new issues. On balance, I consider that in all the circumstances the prejudice to Teen Spirit would be greater than to Mr Mackenzie in allowing them to proceed by way of amendment to his existing claims. In relation to the Second and Third grounds, these also raise new issues although said to be connected to his existing claims. Again, I consider the prejudice to Teen Spirit in allowing these claims now to be added outweigh the prejudice to Mr Mackenzie in refusing his Application to Amend."
He was addressed in relation to the principles in Selkent Bus Co Ltd v Moore [1996] IRLR 661 where Mummery P gave guidance on how to deal with amendments to a claim. In particular Mummery P focused on the nature of the application, the applicability of time limits and the manner and timing of the application. With respect to the Employment Judge, he did not descend into a detailed analysis of the application based upon those three heads. More fundamentally it is accepted by Mr West that the judge fell into legal error for he did not specifically cite or refer to claim 2.[9]From the application and the notice of hearing it is plain that the Claimant was seeking an amendment to claim 2. The Employment Judge has focused upon claim 1 as is apparent from his reference on several occasions to the date of 30 March 2007. That clearly affected his thinking since he was dealing with an application, made in August, to amend a claim which was apparently made in March. It was actually an amendment to amend a claim made in June and thus, at the time of the application in August, it was within time. That is accepted to be an error of law. A relevant Selkent factor was not considered.[10]Also, as a matter of fairness, it seems to me that when the Employment Judge granted the Respondent's application in August, and ordered a stay in September, that affected the Claimant's application made on 22 August, and the order vacating the hearing on 30 August. An Employment Judge has discretion to adjust time limits and he did so here by vacating the hearing and ordering a stay. The clear implication is that time should be frozen by order of the Employment Judge while these matters were dealt with. It would be unfair to count time against the Claimant. Discretion[11]Having found those errors of law, the discretion falls to me. I have an option either to refer the matter back to this or to a different Employment Judge or to make my own decision. The arguments upon which I have been addressed initially suggested that I should refer this back if I were in favour of the Claimant. But in argument Ms Casserley relied upon the judgment of Underhill J in TGWU v Safeway Stores Ltd UKEAT 0092/07 to show an EAT judge in this situation should make the decision.[12]The issue on which it seems to me the Employment Judge has misdirected himself must be subjected to further analysis. There never has been a judgment upon the merits of the Claimant's amendment to claim 2, and the Respondent's objection. In respect of ground 1 of the amendment, there are very strong reasons for allowing this to be decided conclusively today. When the application was made it was still within the primary limitation period for bringing a claim contesting the dismissal on 1 June 2007. It is a doctrine of the common law that a judge will not strike out a claim for delay where there is still time available to launch a fresh claim. The position here is that the Claimant could have presented a new claim on 22 August; or on 30 August, if the hearing had gone ahead and the application had gone against him. He should not be prejudiced by the successful application of the Respondent to adjourn that hearing, as the approach of the Judge acknowledged when he allowed the matter to be vacated then stayed. Thus there was still life in grounds 1-4.[13]There is always a decision to be made when time is still available to present a claim as to whether it is more utilitarian to amend or to issue a fresh claim. I am quite certain that a pragmatic approach, consistent with the overriding objective, is to apply to amend. Since this was done within time, was to be heard within time and was on my analysis simply stayed, the simple solution is to determine ground 1 in the Claimant's favour. I am confident about doing this because no issue in relation to the grievance procedure is raised since it does not apply to a dismissal. Claim 2 is amended to include ground 1.[14]As to grounds 2, 3 and 4 - whether in form an application to amend claim 2, or to present claim 3 out of time - the substance will be determined by an Employment Judge. It is not necessary for me to determine it, but I have had full argument, and there seem to me to strong arguments in the Claimant's favour based upon the chronology which I have set out and the way in which the applications were made. But the Respondent's arguments on timing, and on the statutory grievance procedure, are matters for an Employment Judge.[15]Having heard from both representatives, applying the factors in Sinclair Roche & Temperley v Heard [2004] IRLR 763 EAT, there is no utility in locking this case up any further. The appeal is allowed and the matter of grounds 2, 3 and 4 is remitted a new Employment Judge.