MR D R BARWICK v AVON & SOMERSET CONSTABULARY [2009] UKEAT 0009_09_3103

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2009] UKEAT 0009_09_3103Case No Appeal No. UKEAT/0009/09Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR D R BARWICKAPPELLANTAVON & SOMERSET CONSTABULARYRESPONDENT
Before
His Honour Judge SerotaDate 31 March 2009
[1]APPEARANCES For the Appellant MR D R BARWICK (The Appellant in Person) For the Respondent MR ALASTAIR HODGE (of Counsel) Instructed by: Avon & Somerset Police (Legal Services Dept.) PO Box 37 Valley Road Portishead North Somerset BS20 8QJ SUMMARY UNFAIR DISMISSAL: Constructive dismissal PRACTICE AND PROCEDURE: Amendment The substance of the claim brought by the Claimant, a police officer, was that he had been forced to resign as a result of racially instituted discrimination and had then been constructively dismissed. He had, however, incorrectly completed the boxes in his ET1 as he completed the box for dismissed rather than for discrimination. Police officers are only permitted to claim for unfair dismissal if the dismissal is on discriminatory grounds. The Employment Judge was wrong to refuse the Claimant permission to amend. He was not seeking to add a new cause of action but to correctly label his existing claim. Appeal allowed. HIS HONOUR JUDGE SEROTA QC This is an appeal from a decision of Employment Judge Sara sitting in Bristol on 16 October 2008 whereby he refused permission to the Claimant to amend his claim by adding an allegation of discrimination on the grounds of race and he, therefore, struck out the Claimant's claim under Rule 18(7)(b) of the Employment Tribunal Rules of Procedure. The hearing took place by telephone and his decision was sent to the parties on 22 October. Introduction[2]To complete the procedural history, the appeal came before HHJ McMullen QC on the "sift" and Judge McMullen referred the questions before me today to a Full Hearing but he did dispose of part of the Notice of Appeal with which I am not concerned under Rule 3(7) of the Employment Appeal Tribunal Rules . .[3]The background to this matter can be stated very shortly. The Claimant was a police constable and although the law permits police officers to make claims against, I will not say their employers because police officers are office holders, but against chief constables or the police force in a case of discrimination on the grounds of race, they are not, however, permitted to make claims for unfair dismissal including constructive dismissal (see Employments Right Act , Section 200). There is, however, an exception in that it is accepted that a police officer can raise a claim for constructive dismissal provided that the grounds giving rise to the constructive dismissal are grounds of discrimination on the grounds of race. The Facts[4]On 31 January 2008, the Claimant commenced two claims for discrimination while he was still employed as a police constable. On 16 March, he raised a grievance in relation to certain documents. That does not form any part of his claim. He had joined the police force, I think, about four years ago. The matter came before Employment Judge Tickle on 1 April 2008 in relation to some earlier claim. I believe that Employment Judge Tickle held that the Claimant was not a worker as he was a serving police constable, so he was not able to claim in respect of deductions from his pay and that any claim he wished to bring would have to be limited to discrimination. Subsequently, on a date unknown to me, there was a case management discussion at which various allegations made by Mr Barwick were dismissed as being out of time and there being no link between them.[5]That left three claims for hearing. They all related to failure to pay various medical expenses and an alleged overpayment. On 23 June 2008 the Claimant resigned and claimed that in the circumstances he had been constructively dismissed. He produced his originating application (ET1) in person. I refer to his ET1, which after giving details of his name, asked, "Is your claim or part of it about a dismissal by the Respondent?" That is 3.3 and he has ticked the box marked "Yes". If one then goes to paragraph 5, one finds the part of the form to be completed in cases of unfair dismissal or constructive dismissal. Under paragraph 5.1 Mr Barwick has said this:
"Since joining the service in 2001 the claimant has been a victim of several very serious incidents of racially motivated discrimination, harassment & bullying and now feels that he has no option other than to resign."
[6]I move ahead and I then quote again:
"The Claimant makes no attempt to introduce any issue other than constructive dismissal into this claim."
Before leaving the Employment Tribunal I note that part 6 of the application, which deals with discrimination, has not been completed.[7]On 20 August 2008 the Respondent emailed the Claimant saying that there was no jurisdiction in the Employment Tribunal to permit claims to be brought for constructive dismissal under the Employment Rights Act 1996 . The Claimant's response was that his claim was under the Race Relations Act and he intended to make that clear to the Employment Tribunal. On the same date, the Claimant applied to amend his ET1 to add a claim for discrimination. The matter came before Employment Judge Sara as I have already mentioned. Employment Judge Sara had this to say:
"The Claim as it stands is specifically a claim of constructive unfair dismissal. It makes clear that, while the Claimant had brought a previous claim of racial discrimination while still employed, this present Claim was only about constructive unfair dismissal."
The Employment Judge correctly stated that the Tribunal had no jurisdiction to consider claims of unfair dismissal by police officers and the Claimant's belief that there was an exception for constructive dismissal was wrong. He then refers to the application of 20 August to amend, and the Judge said correctly that the Tribunal has jurisdiction to consider claims for racial discrimination by police officers including claims of constructive dismissal.[8]The nub of the decision is to be found at paragraph 7:
"Since bringing the second claim, the claimant has set out his case in two documents sent to the tribunal and an e-mail of 20 th August, an e-mail of 20 th August (enclosing his resignation letter). He has also set out oral representations today. In none of these has he made any reference to any new matters except for the failure to supply his personnel file."
I need not say anything in relation to the personnel file.

Judge Sara then concludes at paragraph 9:

"I do not consider it is in the interests of justice to allow an entirely new cause of action to be incorporated into his existing claims. I have therefore decided not to allow the amendment. It follows that his existing claim must fail and, accordingly, it is struck out on the grounds that it has no reasonable prospect of success."
Judge Sara considered that the existing claim for constructive dismissal simpliciter was not a claim for constructive dismissal brought about by discrimination on the grounds of race or which constituted an act of discrimination on the grounds of race. Therefore it was an action that could not be brought by a police officer and thus the claim, if one stripped away the allegation of discrimination on the grounds of race, was bound to fail.[9]In his Notice of Appeal, Mr Barwick said if he gave the impression his claim was limited to a claim under the Employment Rights Act , he was mistaken. He said that previous proceedings in which he had attempted to raise claims other than discrimination had been dismissed. He relied on two authorities, Ashworth Hospital Authority [2003] EWCA Civ 547 and Transport and General Workers Union v Safeway Stores [2007] WL 1623241 in relation to the way in which it is appropriate to look at documents or ET1s prepared by litigants in person and he submitted that the Employment Tribunal failed to accede to his submission that the case was one of constructive dismissal based on discrimination on the grounds of race. The Respondent's Case[10]The Respondent: in skeleton argument and very briefly today Mr Hodge has made clear that it supports the reasoning of Employment Judge Sara and points out that the question of whether or not an amendment should be granted is one of discretion. He also raises questions as to whether or not the claim can succeed on the grounds of res judicata and issue estoppel having regard to the earlier proceedings but that is clearly something that does not appear to form part of the decision of Employment Judge Sara and I am, therefore, unable to deal with that matter. The Legislation[11]It seems to me that the law in this matter is quite clear.

(c) :

"Ensuring that it is dealt with expeditiously and fairly."
I also note Rule 3(3):
"A tribunal and chairman shall seek to give effect to the overriding objective when it or he (a) exercises any power given to it or him by these Regulations or the rules in Schedule 1, 2, 3, 4 and 5…"
Sub-rule 4 requires the parties to assist the tribunal or the chairman [now employment judge] to further the overriding objective.[12]It is perhaps helpful to have regard by way of analogy to the question of amendment in civil proceedings under the CPR. In this regard, I draw attention to the judgment of Peter Gibson LJ in Cobbold v London Borough of Greenwich [9 August 1999] CA referred to in the 2008 White Book at paragraph 17.3.5 and the decision itself was given on 9 August 1999 and is not referred to. What Peter Gibson LJ had to say was this:
"The overriding objective is that the court should deal with cases justly. That includes, so far as practicable, ensuring that each case is dealt with not only expeditiously but also fairly. Amendments in general ought to be allowed so that the real dispute between the parties can be adjudicated upon provided that any prejudice to the other party or parties caused by the amendment can be compensated for in costs, and the public interest in the efficient administration of justice is not significantly harmed. I cannot agree with the judge when he said that there would be no prejudice to Greenwich in not being allowed to make the amendments which they are seeking. There is always prejudice when a party is not allowed to put forward his real case, provided that that is properly arguable."
[13]Now in the present case no prejudice whatever has been suggested or would be suffered by the Respondent if the amendment were allowed, and I also have regard to the general principle in cases involving discrimination, as noted by Lord Steyn in the House of Lords in Anyanwu & Another v South Bank Student Union [2001] UKHL 14 , that generally speaking cases involving discrimination should be heard as a matter of public interest.[14]Now again, it is helpful to look again at what is actually said in the ET1. It is clear, if one looks at paragraph 5, that the Claimant was saying that his constructive dismissal was as a result of his having been a victim of several very serious incidents of racially motivated discrimination, harassment and bullying. Now, it seems to me that if one has regard to what was said, for example, by Diplock LJ in Letang v Cooper [1965] 1QB 232 at page 242, that a cause of action is, and I quote:
"…. simply a factual situation the existence of which entitles one person to obtain from the Court a remedy against another person."
It seems to me following that dictum that a cause of action for constructive dismissal on the grounds of racially motivated discrimination is clearly set out in the ET1.[15]When one comes to the principles which are applied in amendments, it is, of course, helpful to consider the decision of Mummery J, as he then was, in Selkent Bus Company Ltd v Moore [1992] IRLR 661. Amendments are subject to a judicial discretion and in the words of Mummery J:
"… in a manner which satisfies the requirements of relevance, reason, justice and fairness inherent in all judicial discretions."
As Harvey points out, and I now quote from paragraph 311.01 of part T:
"[Before making that decision however,] 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."
I also cite from paragraph 311.3 of Harvey :
"A distinction may be drawn between: (1) Amendments which are merely designed to alter the basis of an existing claim but without purporting to raise a new distinct head of complaint. (2) Amendments which add or subject a new cause of action upon which is linked to or rises out of the same facts as the original claim. (3) Amendments which add or subject the wholly new claim or cause of action which is not connected to the original claim at all."
[16]It seems to me that the amendment which was sought in this case was essentially no more than relabeling. It either fell within(1) or(2) of Harvey's classification. It certainly did not fall within (3). This is a case in which the Respondent can have had no illusion but that the factual basis of the claim was, "I have been forced to resign as a result of serious incidents of racially motivated discrimination". As Harvey makes clear (I now have regard to paragraph 312.01) that so far as the second category of cases of were concerned, Tribunals and Courts, and I quote:
"… have always shown a willingness to permit a Claimant to amend to allege a different type of claim from the one pleaded if this can be justified by the facts set out in the original claim. It is usually described as putting a new label on facts already pleaded."
I regard that as applying to the present case.[17]It follows, and again from the authorities which are all referred to in Harvey, and I now quote from paragraph 312.02:
"The position is, therefore, that if the new claim arises out of facts that have already been pleaded in relation to the original claim, the proposed amendment will not be subjected to scrutiny in respect of the time limits but we considered under the general principles applicable to amendments as summarised in Selkent ."
[18]I do not propose to read it out but I have had regard and rely upon the passage in Harvey at paragraph 312.01 and 312.02. I have also obviously considered what was said in the Selkent case. I do not propose to go through that decision but, in my opinion, had the Employment Judge had regard to the passages which I have read out and the passages in Harvey and the relevant passages in Selkent , he could not properly have come to the conclusion that he had. Conclusion[19]The order, therefore, that I propose to make is as follows. The appeal will be allowed. This matter will be remitted to the Employment Tribunal and I make clear that nothing in this order is intended to preclude the Respondent in any way from raising the matters that are referred to in the skeleton argument of Mr Hodge that it would have been contrary to the principles of res judicata and issue estoppel to permit the Claimant to relitigate matters which have been disposed of in earlier proceedings.