MR L C BAKER v THE COMMISSIONER OF POLICE OF THE METROPOLIS [2010] UKEAT 0201_09_0502

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2010] UKEAT 0201_09_0502Case No Appeal No. UKEAT/0201/09Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR L C BAKERAPPELLANTTHE COMMISSIONER OF POLICE OF THE METROPOLISRESPONDENT
Before
Mrs Justice Slade Mr D Chadwick Ms P TatlowDate 5 February 2010
[1]APPEARANCES For the Appellant MR MOHINDERPAL SETHI (of Counsel) Instructed by: Messrs Russell Jones & Walker Solicitors Swinton House 324 Gray's Inn Road London WC1x 8DH For the Respondent MR DIJEN BASU (of Counsel) Instructed by: Metropolitan Police Service Legal Services New Scotland Yard Broadway London SW1H OBG SUMMARY PRACTICE AND PROCEDURE Application/claim Amendment VICTIMISATION DISCRIMINATION An originating application must be read as a whole to ascertain whether it contains a particular complaint. The Claimant who was black and dyslexic completed an ET1 without legal assistance. He ticked the Disability and the Race boxes in paragraph 6.1. In the particulars of complaint in Box 6.2 he referred to race discrimination but made no complaint obviously related to disability discrimination. Two further ET1s were presented by solicitors. These clearly raised complaints under the Race Relations Act 1976 and the Disability Discrimination Act 1975 . All three ET1s were considered at a CMD at which issues were identified some of which applied to the DDA as did information ordered to be provided. Reading the first ET1 as a whole applying Office of National Statistics v Ali [2005] ICR 201 paragraph 39 the ET did not err in concluding that the first ET1 did not contain a claim under the DDA . However, the ET erred in refusing to hear and/or determine an application to amend the first ET1 to 're-label' events as falling within the DDA on the basis that the application was made at a very late stage in the proceedings. This is but one of the considerations to be taken into account in determining an application to amend. Selkent Bus Co Ltd T/A Stagecoach Selkent v Moore [1996] IRLR 661 applied. Whilst it is preferable for an ET not to introduce characteristics relevant to the reason why a Respondent took the action complained of in a victimisation claim in determining whether a Complainant has been treated less favourably than a comparator, it is not an error of law to do so: see Lord Nicolls in Chief Constable of West Yorkshire v Khan [2001] ICR 1065 at paragraph 27. Even if the ET had erred in this regard it made clear findings of fact that the reasons for the actions complained of were nothing to do with protected acts under RRA Section 2(1)(a) to (d) and would have dismissed the claims applying the preferred approach. Appeal dismissed save in respect of the refusal of the ET to consider and determine the application to amend. Case remitted to the ET to consider the application to amend the first ET1. THE HONOURABLE MRS JUSTICE SLADE: One of the issues in this appeal is whether claims under the Disability Discrimination Act 1995 ('DDA') had been made in an ET1. The Employment Tribunal ('ET') held that they were not. What must be included in an ET1 for claims under the DDA to be made? In addition it is contended that the ET erred in not permitting counsel for the Claimant to apply on the final day of the hearing to amend an ET1 to allege disability discrimination under the DDA. The approach of the majority of the ET in dismissing victimisation claims under the Race Relations Act 1976 ('RRA') is also challenged. It is said that in considering such claims the ET erred in identifying the characteristics of an appropriate comparator. The Grounds of Appeal[2]The following grounds of appeal are raised in the Notice of Appeal:(1) the ET erred in holding that the first ET1 did not include a claim of disability discrimination;(2) the ET erred in refusing to hear and/or determine an application to amend the first ET1;(3) the ET erred in identifying the characteristics of the comparator for the purposes of the victimisation claims under the RRA. We will consider the first two grounds separately although they are grouped together as Ground 1 in the Notice of Appeal and in this judgment we will refer to three rather than two Grounds of Appeal.[3]We will refer to the parties by their titles in the ET.[4]The Claimant, a probationer police officer, presented three ET1s: on 10th November 2006 (the first ET1), 22nd February 2007 (the second ET1) and 18th September 2007 (the third ET1). He completed the first ET1 without assistance of solicitors. The second and third were completed with the assistance of solicitors experienced in employment law. On the evening before the conclusion of the case the Claimant withdrew his claims of discrimination under the RRA maintaining his claims of victimisation under that Act. After a hearing over 16 days the ET dismissed all the claims.[5]The decisions under appeal were reached in a judgment entered in the register on 11th February 2009 on the three joined cases brought by the Claimant in the three ET1s ('the judgment'). Whilst the ET made findings in relation to other aspects of the claims the decisions under appeal are that:
"1. The Claimant did not, by his Claim No 33018735/2006 [ the first ET1 ], bring a claim of Disability Discrimination. … 11. By a majority, the Respondent did not victimise the Claimant by reference to the Race Relations Act."
[6]The decision challenged in the second ground of appeal is recorded in a Note dated 26th May 2009 supplied by the Employment Judge ('EJ') who chaired the full hearing of the claims. He records that Ms Brown, counsel for the Claimant, applied 'to ascribe the label 'disability discrimination' to what appears in claim form 1.' His response was:
"We will not hear an application at this stage. A DDA claim is either on the claim form or it is not. That is a matter for us to decide."
Facts[7]We will set out a summary of those facts relevant to the issues before us. The hearing before the ET occupied 16 days and the judgment 59 pages. Both parties were represented by counsel before the ET. Mr Sethi who appeared for the Claimant before us did not appear before the ET. The Respondent was represented by Mr Basu who also appeared before us.[8]The Claimant is a black man of British origin and suffers from dyslexia. He joined the Respondent on 9th January 2005 and commenced training at the Recruit Training School at Hendon the following day. On his failing an essential part of the training, the emergency life saving course ('ELS') for the second time on 9th February 2005 he was issued with a formal warning under Regulation 13 of the Police Regulations 2003 . Regulation 13 provides that during a period of probation the services of a constable may be dispensed with at any time if the Chief Officer of Police considers that he is not fitted physically or mentally to perform the duties of his office or that he is not likely to become an efficient or well-conducted constable.[9]The Claimant passed his ELS on the third attempt on 11th February 2005 and the Regulation 13 procedure was not pursued. The Claimant's tutor, Sergeant Fisher, was concerned that that the Claimant only just passed module 2 theory and practical exams and his two pieces of written work were unsatisfactory. The Claimant, who was unaware that he suffered from dyslexia, was assessed by Dr McLoughlin, an Educational and Occupational Psychologist appointed by the Respondent, who saw the Claimant on 26th April 2005. Dr McLoughlin concluded that the Claimant was dyslexic and made a series of recommendations. He wrote that these were to apply 'when he moved from Hendon to street duty'. Recommendations were also made by Carole Leather, a dyslexia advisor.[10]By 11th May 2005, week 17 and the scheduled end of his training, the Claimant had failed two out of three assessments and had not maintained a satisfactory performance. The ET record at paragraph 27.19 of the judgment that:
"Sergeant Fisher's conclusion was that the Claimant will continue to struggle and is "not at this time suitable to go out to his borough"
. He gave the reason that the Metropolitan Police is an accountable organisation and that the Claimant's shortcomings would leave him vulnerable to discipline and civil action and would also leave the organisation vulnerable to such action and the possible failure of cases brought to court. He recommended that consideration should be given to whether there should be further development or dispensation with the Claimant's services. That assessment was referred to the Intake Manager who was Inspector Marriott. He recommended that the Claimant be 're-coursed', which means that he should go back five weeks in the course and redo work that he had previously done badly in that period, so that he would have the opportunity to revisit two pieces of written work and obtain additional support as detailed in the report from Dr McLoughlin."[11]After a case conference on 13th May, Chief Inspector Batt concluded that re-coursing would not enable the Claimant to achieve the necessary level of competence. He recommended that the Respondent dispense with the Claimant's services.[12]The Claimant appealed Chief Inspector Batt's decision. The appeal was heard on 27th May 2005 by Superintendent Parker. He decided to transfer the Claimant from Hendon to an Initial Police Learning Development Programme ('IPLDP') in Westminster.[13]The Claimant did not do well on the IPLDP. At paragraph 27.34 of the judgment the ET record the evidence of a tutor on the course:
"I can honestly say having trained many students (300 plus over a five year period) that Mr Baker was by far and away the weakest student I have ever seen come through MPS training."
An action plan was produced for the Claimant and adjustments were made which the Respondents said were in keeping with suggested adjustments in the dyslexia assessment.[14]By September the Claimant was assessed as still not competent in certain areas. Sergeant Coppitters, who was in charge of running the IPLDP course at Westminster, produced a report detailing the Claimant's failings and recommended that a decision be made to dispense with the Claimant's services.[15]No action was taken on Sergeant Coppitter's recommendation as on 22nd September 2005 the Claimant was arrested for an alleged assault on a member of the public in an Argos store whilst he was off duty. He was suspended on 26th September 2005. The prosecuting authority eventually decided that there was insufficient evidence to proceed and the charges against the Claimant were dismissed on 2nd May 2006. In the light of comments made by the Claimant at the time of his arrest, which included allegations that there was a conspiracy and the others involved in the incident were 'all Muslim and the manager is Muslim', the Directorate of Professional Standards recommended that the Claimant should be confined to restricted duties and should have no direct contact with the public. The recommendation was accepted. The suspension was lifted but the restrictions meant that the Claimant could not resume his training. Thereafter the Claimant was employed on clerical and administrative duties.[16]On 6th May 2006 Inspector Turnbull suggested to the Claimant that he might undertake some security patrols in the Hendon area. This was not pursued.[17]On 20th July 2006 the Commander responsible for Professional Standards recorded that a decision had been taken that the Claimant should face a misconduct hearing and that in the meantime he should remain on restricted duties.[18]On 26th July 2006 the Claimant sent an email to Inspector Jane Scales who had responsibility for the Claimant's welfare. He told her that he had lost confidence in his Police Federation representative and that he had told the representative that:
" my experience at Hendon was one of where racist bullying and intimidation had been show (sic) towards me on various occasions and that the Met should tell people from ethnic minorities that this is the experience they may face."
This is the first protected act on which the Claimant relies in his victimisation claims.[19]The Claimant told the ET that he had fallen out with his Police Federation representative because he was not willing to support him in allegations of racism against the Respondent. In an email of 4th September 2006 to Inspector Scales the Claimant alleged that whilst he was at Hendon there had been 'intimidation, racial and undermining tactics shown towards him by a few members of staff'. One of these was Sergeant Fisher. This email was the second protected act. On 27th September the Claimant submitted a Fairness at Work complaint. He referred to his gender and ethnicity on the first page.[20]On 4th October 2006 the Claimant sent a letter to Tony Robinson, Chief Superintendent at Hendon. The ET record at paragraph 27.66 that he referred to a selection of emails and to the Fairness at Work complaint to which he had not received a response and wrote:
"This is how I have been treated and things have been covered up. Each time I mention racism and intimidation and abuse that I have suffered no one want to do anything and the buck passing starts."
The Claimant relied upon this letter as a further protected act within the scope of the RRA .[21]On 18th October 2006 the Claimant attended a further review meeting with Inspector Scales. He had been advised that the disciplinary charges against him had been dropped and that he would be dealt with by 'words of advice'. It was agreed that the Claimant would carry on working in the PCSO recruitment office.[22]On 20th October 2006 the Claimant sent an e-mail to a member of the Metropolitan Black Police Association in which he complained of intimidation and a form of indirect racism. The ET found that by a 'roundabout route' the complaint of indirect racism reached Chief Superintendent Robinson.[23]On 6th November 2006 it was decided that the Claimant should be offered a new 17 week course at Hendon or the IPLDP courses at either Barnet or Sunbury.[24]At a meeting with the Claimant on 9th November 2006 he was notified that no formal disciplinary proceedings were to be taken against him. During the following discussion on options available to the Claimant including a return to training at Hendon or on one of two IPLPD courses, he made some comments prefacing them with the words:
'if you are being racist'
. After the meeting his Metropolitan Black Police Association representative said to a Deputy Assistant Commissioner that it must be noted that the Claimant had already claimed that he was being racially discriminated against within the Hendon environment.[25]On 10th November 2006 the Claimant presented his first ET1.[26]By email of 13th November 2006 the Claimant was pressed to make a decision about his training. He informed Superintendent Terry that he was not taking up any of the options. On 15th November 2006 the Claimant had a short impromptu meeting with Inspector Turnbull at which he was advised that if he failed to commence training on 20th November 2006 his services would be dispensed with.[27]Thereafter the Claimant did not report for training and he was served with a further Regulation 13 notice. He continued to say that he was being discriminated against on the grounds of his colour.[28]On 14 th December 2006 Inspector Scales wrote to the Claimant informing him that his probationary period had been extended to 9 th July 2007. At a meeting on 19 th December 2006 attended by the Claimant his allegations of racism were discussed.[29]On 22nd February 2007 the Claimant presented his second ET1. At a meeting on 19th June 2007 the Claimant was told that he could recommence a training course on 5 th August 2007. On 7th July 2007 the Claimant rejected the offer to re-enter training. On 2nd August 2007 a Case Management Discussion was held by an EJ to deal with the first two ET claims. The Claimant did not attend for training.[30]On 15th August 2007 the Claimant attended what he described as a final Regulation 13 meeting with Assistant Commissioner Godwin. The ET commented in paragraph 27.105 of the judgment:
"We think that Assistant Commissioner Godwin was not aware that the Claimant had made complaints of race discrimination."
At that meeting the Assistant Commissioner took the decision to dispense with the Claimant's services under Regulation 13. At paragraph 27.108 the ET recorded that:
"He told us that he had given the Claimant every opportunity to re-enter training with appropriate support mechanisms in place and that he had failed to do so. He said that under those circumstances he had no alternative but to dispense with the Claimant's services."
[31]On 18th September 2007 the Claimant filed his third ET1.[32]On 10th January 2008 a further CMD was held to consider the management of the three ET1s which by then had been presented. By Order of 14th January 2008 a Schedule of agreed issues was drawn up ('the Schedule'). We will make frequent reference to the issues identified in the Schedule.[33]Before the hearing the Claimant provided further particulars of his claims in response to Orders made on the CMD of 10th January 2008. Replies to requests for further and better particulars by the Respondent were also served by the Claimant. First Ground of Appeal: did the ET err in holding that the first ET1 did not include a claim of disability discrimination.[34]In paragraph 120 of his closing submissions to the ET Mr Basu, counsel for the Respondent, contended that there was no pleaded DDA claim in the first ET1 and no 'attempt has been made to remedy this defect'.[35]Of the issues it had to decide, the ET considered first whether the first ET1 included a claim of disability discrimination 'because of the effect our decision would have on our decisions in relation to the many issues that we would have to determine'. Mr Basu had submitted that the ET did not have jurisdiction to hear and determine a claim for reasonable adjustments under the DDA insofar as it relates to a period before 23rd November 2006, six months before the presentation of the second ET1 in which a reasonable adjustments claim was raised.[36]The ET examined in detail the matters complained of in the first ET1. It held at paragraph 28:
"We reached the view that although the Claimant ticked the box marked 'Disability' in Section 6 of that claim form, nowhere in the notes attached to the claim form (which as mentioned above, contain a list of events in reverse chronological order) does the Claimant make a complaint which is recognisably a complaint of disability discrimination. By way of example, in the entry for 8 June 2006 whilst the Claimant mentions that Inspector Scales' requirement that he should come back into training and would have to start at the beginning is, he felt 'discrimination', he did not say that the discrimination had anything to do with his learning difficulties or dyslexia. By contrast, the history of events is recognisably a claim for race discrimination, especially having regard to the entry for 5 October 2006. The Tribunal reached the view that they could not conclude that, by his first claim, the Claimant had made a claim of disability discrimination, despite his tick in the box marked 'Disability' at Section 6."
The contentions of the parties[37]Mr Sethi on behalf of the Claimant contended that the conclusion of the ET that the first claim did not include a claim of disability discrimination was wrong in law and/or a finding that no reasonable tribunal properly directing itself would have reached. The Claimant had ticked the box marked 'Disability' as well as 'Race' in Section6.1 in which the form invites a claimant to ' indicate what discrimination (including victimisation) you are complaining about '. Box6.2 invites the Claimant to describe the incidents which are believed amounted to discrimination, the dates of these incidents and the people involved.[38]Whilst Mr Sethi contended that in certain respects the text in Section 6.2 referred to acts of disability discrimination he realistically recognised that the first claim insufficiently particularised claims of disability discrimination. However he submitted that the Respondent understood that a claim under the DDA was being made in the first ET1. In his Answer the Respondent denied that he had discriminated against the Claimant contrary to the RRA or the DDA. He averred that if the Claimant was treated less favourably for a reason relating to his dyslexia that treatment was justified. Further a Questionnaire relevant to both the RRA and the DDA was served on him on 3rd December 2006.[39]The Employment Judge on 10th January 2008 noted 'that the pleaded cases, particularly the first one (3300467/07) are not very clear.' Mr Sethi contended that the Respondent was fully aware of the allegations of disability discrimination which were being made. These were particularised in the list of issues in the Schedule to the Order of the Employment Judge of 14th January 2008 following the CMD. Further particulars were provided in the Claimant's response to paragraphs 3 and 4 of the Case Management Order of 14th January 2008. Paragraph 3 required the Claimant to provide details of the provision, criteria or practice which he alleged placed him at a substantial disadvantage in relation to the timescale and process by which training was carried out. By paragraph 4 he was required to provide details about what extra time training and support he says would have been a reasonable adjustment to enable him to complete his training satisfactorily including details of which part of the training required what adjustments. These questions were relevant to claims under the DDA.[40]Both the EJ in her Order of 14th January 2008 and the ET hearing the case referred to three claims under DDA as well as RRA. The second ET1 cited the lodging of the first ET1 as a protected act under the DDA in support of a victimisation claim under that Act.[41]Mr Basu for the Respondent contended that the ET did not err in law in concluding that the first ET1 did not contain a claim under the DDA. If it had erred in this regard, on the basis of its findings in dealing with them as claims under the second ET1 it would have dismissed all the claims which could have been advanced in the first ET1 as being under the DDA.[42]It was contended on behalf of the Respondent that claims to the ET must comply with the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 (the 'Rules'). These require a claimant to give particulars of the claim. The Claimant had failed to give any particulars of a claim under the DDA in the first ET1.[43]As for the reliance placed by Mr Sethi on the agreed list of issues as indicating that a DDA claim was included in the first ET1, Mr Basu pointed out that the list of issues in the Schedule to the Order of the EJ of 14th January 2008 did not ascribe a particular issue to a particular ET1. By the time of the CMD of 4th January 2008 three ET1s had been presented, two of which contained claims under the DDA. The issue of whether certain claims were presented in time was included in the Schedule.[44]Mr Basu pointed out that a claim under the DDA alleging a failure to make reasonable adjustments was made in the second ET1. Issues relating to that claim are identified in paragraphs 3 and 4(a)-(i) of the Schedule. At paragraph 31 of its judgment the ET were prepared to accept that the second ET1 encompassed all the reasonable adjustments claims which were identified in the agreed list of issues in the Schedule. However it held that all such claims in respect of the period before 18th October 2006 were out of time. It considered claims in respect of events between 18th October and 22nd November 2006 under the second ET1 on the basis that the facts to support such a claim were likely to have continued beyond that date'. Thus claims which would have been within time if the first ET1 had been considered to include a reasonable adjustments claim were considered and dismissed on their merits as the ET decided in paragraph 43 of its judgment.[45]As for disability related discrimination, the majority of the ET considered that the claims referred to in the Schedule at paragraphs 5(a) to (g) did not appear on any claim form. The majority observed at paragraph 35 of the judgment that these matters would necessarily have been out of time and no submissions had been made as to why they should be heard. The minority member considered that these claims of disability related discrimination had been pleaded in paragraph 11 of the second ET1. It is clear from paragraph 36 of the judgment that the remaining allegations of disability related discrimination referred to in the Schedule were considered to be included in the second and third ET1s. The claim referred to in paragraph 5(h) was held to be out of time. The remainder were held to be in time. The ET reached the same conclusions in relation to the allegations of direct disability discrimination as it reached in relation to disability related discrimination. Discussion[46]The Rules set out the requirements for making a claim to an ET. These provide:
"Rule 1(1): A claim shall be brought before the employment tribunal by the claimant presenting to an Employment Tribunal Office the details of the claim in writing. Those details must include all the relevant required information… Rule 1(4)(e):…the required information in relation to the claim is- … (e) the details of the claim."
[47]The Court of Appeal in Office of National Statistics v Ali [2005] IRLR 201 considered an appeal relating to an application to amend an ET1. The claim form alleged direct racial discrimination. Even though there was an argument about whether it included some aspects of indirect racial discrimination it did not allege the indirect racial discrimination which the appellant wished to rely upon. The details of complaint in the ET1 clearly referred to race as the reason for the treatment of which complaint was made. Mr Ali was originally unrepresented. After counsel was instructed an application to amend the ET1 was made specifying the basis of a claim for indirect discrimination.[48]The ET took the view that the ET1 raised the issue of whether there was something about the Respondent's recruitment practice which had the effect of excluding black people. It was therefore their decision that the ET1 included a claim of indirect race discrimination and no amendment was required. This basis for the decision of the ET was not relied upon in the Court of Appeal by counsel for the Claimant.[49]Waller LJ held at paragraph 39:
"In my view the question whether an originating application contains a claim has to be judged by reference to the whole document. That means that although box 1 may contain a very general description of the complaint and a bare reference in the particulars to an event (as in Dodd ), particularisation may make it clear that a particular claim for example for indirect discrimination is not being pursued. That may at first sight seem to favour the less particularised claim as in Dodd , but such a general claim cries out for particulars and those are particulars to which the employer is entitled so that he knows the claim he has to meet. An originating application which appears to contain full particulars would be deceptive if an employer cannot rely on what it states. I would for my part think that insofar as Quacoopome suggests to the contrary it should not be followed. Therefore I would hold that paragraph 25A seeks to bring into the proceedings a new claim."
[50]We have considered Dodd v British Telecommunications plc [1988] ICR 116 referred to in Ali . In that case in the EAT Scott J, as he then was, held that an ET1 which specified the acts complained of and referred to the SDA and the RRA but did not state whether it was alleged that the acts were of sex or race discrimination or both was an effective application to the ET under both Acts.[51]We have also considered the dictum of Neill J, as he then was, in Burns International Securities Services (U.K.) Ltd v Butt [1983] ICR 547 at pp 550 and 551 cited in Dodd :
"It seems to us that in the field of industrial relations where application forms are frequently completed by individual employees without professional assistance a technical approach is particularly inappropriate … It was pointed out in Cocking v. Sandhurst (Stationers) Ltd. [1974] I.C.R. 650 that the rules did not require that the complaint as presented should be free of all defects or should be in the form in which it finally came before the tribunal for adjudication. The purpose of the rules is to ensure that the parties know the nature of the respective cases which are made against them."
[52]Reading the first ET1 as a whole, it contained a complaint of direct race discrimination. The particulars of discrimination given in the ET1 contain the following:
"Hendon in my opinion is a Racist Institution run by and protected by closet racists who protect their own."
In an email of 4th October 2006 to Chief Superintendent Robinson the Claimant said that he:
"had lost interest in all the deceitful and abuse of power suffered by me from the Met, and the last straw being, how the fairness at work procedure was now being exposed to every Tom, Dick and Harry. Reference Fairness at work Application form been seen by more people then [sic] it should have been. Yet causing more harm and distress. I don't think these things happen to white officers."
The particulars of discrimination in the ET1 contain no reference to any action complained of being taken on grounds of or related to disability.[53]By the CMD on 10th January 2008 when issues were identified and set out in the Schedule and Orders made for the Claimant to provide further information, three ET1s had been presented. The second and third ET1 clearly included claims under the DDA. It is unsurprising that the Schedule included issues relevant to claims under the DDA. The fact that the Respondent in his Answer to the first ET1 denied discrimination under the DDA does not necessarily mean that such a claim had been made. Whilst particulars can explain and elucidate a claim made in an ET1 the claim itself has to be made in that document. It is for the ET considering the matter to find as a fact whether an ET1 contains a particular claim.[54]In our judgment the ET correctly considered the first ET1 as a whole. It came to a conclusion which was open to it. Whilst the particulars given in the ET1 raised a recognisable case of race discrimination, the Claimant did not say that the discrimination alleged had anything to do with his learning difficulties or dyslexia. Neither did the Claimant say that any or any specific adjustments should have been made for him by reason of his disability. Accordingly whilst recognising that a technical approach to the question of whether a particular claim is raised in an ET1 is inappropriate, on the facts of this case the ET did not err in law or come to a perverse conclusion in holding that, read as a whole, the first ET1 did not include a claim of disability discrimination.[55]In the light of the difficulties which arise from time to time from insufficiently particularised ET1s in discrimination cases, particularly where these have been completed without expert assistance, we suggest that it may be helpful to review the wording of the forms. As Ali illustrates, a claim of indirect discrimination is different from one of direct discrimination. Victimisation claims are also different as is a claim under the DDA relating to a failure to make reasonable adjustments. It may be possible to subdivide the types of discrimination in box 6 of the ET1 form to enable a claimant to identify more precisely the type of discrimination of which he complains. Further, it may be helpful to direct a claimant to say what type of discrimination listed in box 6.1 applies to the details of the claim given in box 6.2. Second Ground of Appeal: did the ET err in refusing to hear and/or determine an application to amend the first ET1.[56]On behalf of the Claimant Mr Sethi contended that counsel for the Respondent submitted for the first time in closing submissions that the first ET1 did not include a claim under the DDA. Mr Sethi contended that the ET erred in law in refusing to hear or determine the Claimant's application to amend the first ET1, if necessary, to incorporate paragraphs 3 and 4 (breach of duty to make reasonable adjustments), 5(a) to (h) (disability related discrimination) and 7 (direct disability discrimination) of the Schedule to the CMD Order of 14th January 2008.[57]It was said that the Claimant's then counsel was not permitted to make an application to amend the first ET1 and that the ET indicated that any such application would be refused as the proceedings had reached the stage of final submissions. If the ET had heard the application, applying Selkent Bus Co Ltd v Moore [1996] ICR 836 at pp 843-844, the application should have been granted.[58]Counsel then appearing for the Claimant has made two statements in support of this ground of appeal. She said that the point that the first ET1 raised no claim under the DDA was made at a very late stage in the proceedings in paragraph 120 of the Respondent's closing submissions. Counsel said in her statement of 24th March 2009:
"5. I attempted to deal with the submission in my closing remarks and I raised the issue of making an application to amend the claim form so far as necessary to cure any defect. The employment judge indicated that any such application would be refused on the basis the proceedings were at a late stage. I did make submissions to the effect that the Respondent had suffered no prejudice on the basis that the Respondent had called evidence on all the matters set out in the list of issues. I was not permitted to make the application. 6. I asked for a postponement so that full submissions could be made on why the Appellant contended that the claim form did raise a claim of disability discrimination. This application was refused on the basis that a time limit of 1 hour had been placed on oral submissions, it was late in the afternoon, Mr Basu was going on holiday immediately after the hearing and that no further time would be expended on hearing further submissions. The tribunal expressed the view that it was a matter for them and further submissions were not necessary."
[59]Mr Basu referred to steps taken by him during the course of the proceedings which drew attention to his argument that the Claimant had made no claims under the DDA in his first ET1. Further he contended that it was open to the ET to decline to entertain an application to amend made for the first time in closing submissions.[60]Mr Basu relied on Dobie v Burns not only to uphold the decision of the ET that the first ET1 did not contain a claim under the DDA but also to uphold the decision of the ET not to entertain an application to amend the first ET1. Discussion[61]The Employment Judge provided a record dated 26th May 2009 of his notes of closing submissions on whether the Tribunal should allow an amendment to the first ET1. The note shows that counsel for the Claimant referred to Selkent and continued:
"I wish to apply to ascribe the label 'disability discrimination' to what appears in claim form 1. …….. The Employment Judge We will not hear an application at this stage. A DDA claim is either on the claim form or it is not. That is a matter for us to decide."
[62]The well known dictum of Mummery J, as he then was, in Selkent Bus Co Ltd T/A Stagecoach Selkent v Moore [1996] IRLR 661 was cited by Waller LJ in Ali at paragraph 2:
"(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 additions of factual details to existing allegations and the addition or substitution of other labels for 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 have to decide whether the amendment sought is one of the minor matters or is a substantial alteration pleading a new cause of action. 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 …"
[63]At paragraph 3 Waller LJ observed:
"It is of some interest that Mummery J contemplated that the general overriding test involved the balance of injustice and hardship and that the applicability of time limits was just one aspect of the more general test."
[64]Although an ET is master of its own procedure and the application to amend was made at a very late stage in the proceedings, in our judgment the ET erred in considering the lateness of the application an insuperable reason for refusing to hear or to accede to it. The ET should have considered the stage in the proceedings at which it was made as just one factor in deciding whether to hear and grant the application to amend.[65]There was no reference to a written proposed amendment. It seems that none was produced. We take the nature of the application from the note provided by the EJ that it was to re-label incidents referred to in the first ET1 as acts of disability discrimination. In considering whether to accede to an application to amend, the ET should have considered the nature of the amendment and whether it really was a re-labelling exercise, whether complaints in the first ET1 re-labelled under the DDA were out of time and if so whether it would be just and equitable to extend time. The ET should have considered the balance of injustice to the parties of granting or refusing the amendment. Disposal[66]We consider whether in all the circumstances we should remit the case to the ET for consideration of the application to amend the first ET1. Following the conclusion of the oral hearing before us at our request we received additional written submissions on the question of disposal of the appeal if we were to conclude that the ET had erred in refusing to hear or to grant an application to amend the first ET1. Submissions[67]Mr Sethi submitted that the erroneous decision of the ET in regard to the amendment was not remedied by its findings of fact on other complaints. The approach in Dobie v Burns International Security Services (U.K.) Ltd [1984] ICR 812 could not be applied. Different considerations would apply to whether it would be just and equitable for the ET to extend time to hear disability discrimination complaints under the first ET1 as unlike the second ET1 it was completed without legal assistance.[68]Further Mr Sethi submitted that the earlier complaints of events in 2005 could be regarded as part of an act which continued until the period within three months of the presentation of the first ET1. Applying Hendricks v Commissioner of Police of the Metropolis [2003] ICR 530 , complaint was being made of a 'continuing state of affairs'. He contended that acts identified in the list of issues at 5(a)-(e) in the Schedule to the CMD Order of 14th January 2008 are intertwined with and cannot be separated from the chain of events covered by acts 5(f)-(g) which would be in time if the first ET1 were to be amended.[69]Thus the amended complaints could either be said to be not out of time or that it would be just and equitable to extend time so that they could be heard. Further Mr Sethi contended that no prejudice would be caused by allowing the amendment as the factual basis for the claims to be added by way of amendment was already set out in the first ET1.[70]The ET had dismissed the complaints relating to issues in the Schedule at paragraph 5(a)-(g) principally because the majority held that they did not appear in any claim form. If the amendment were allowed this reason would not apply. The ET did not consider whether there had been any continuing act of disability discrimination raised by the facts set out in the first ET1. It could not therefore be said that the error in not permitting the application for an amendment to be made had no effect on the outcome of the disability discrimination claims sought to be raised relying on the first ET1.[71]Mr Basu submitted that if the ET had granted the application to amend the first ET1, the claims under the DDA would inevitably have failed either on jurisdictional grounds due to the age of the complaints or on their merits. His analysis of the disposal by the ET of all the complaints raised in the Schedule to the CMD Order of 14th January 2008 is set out above at paragraphs 44 and 45 above.[72]It is contended on behalf of the Respondent that the Claimant did not in his witness statement explain why he delayed for so long in presenting any claim of disability discrimination. Nor were submissions made by counsel relating to any such explanation.[73]Mr Basu submitted that Hendricks did not assist the Claimant as the ET rejected any assertion of unlawful discrimination under the DDA in the period between 23 September 2005 and 18 October 2006 when the Claimant was suspended from duty. Therefore there cannot be said to be a continuing state of affairs. Such continuity would be broken by the period during which the ET held that there was no discrimination.[74]The ET held at paragraph 41 of the judgment that it was not just and equitable to hear the reasonable adjustments claim which related to events between February and September 2005. It was suggested that there was no basis for adopting a different approach to a direct or disability related discrimination claim relating to events during that period.[75]Even now and after the Claimant's counsel had provided a second witness statement dated 8th November 2009 no explanation has been given for the delay in presenting disability discrimination complaints which could have caused the ET to extend time pursuant to its powers under DDA paragraph 3 Schedule 3.[76]Mr Basu submitted that we could be sure that the ET would have refused to exercise its discretion to hear and determine issues identified in paragraph 5(a)-(e) of the Schedule. These complaints related to events in 2005. The ET considered under the second ET1 the claim to which paragraph 5(h) of the Schedule related. It dismissed that claim. Accordingly, applying the well known principles in Dobie v Burns and Bache v Essex County Council [2000] ICR 313, any error of the ET in not considering the application to amend had no effect on the outcome of the case and the case should not be remitted to the ET. Further he contends that it would be unjust, unnecessary and disproportionate to do so. Discussion[77]Peter Gibson LJ in Bache at page 321F referred to the well known dictum of Sir John Donaldson in Dobie v Burns :
"Once you detect that there has been a misdirection, and particularly that there has been an express misdirection of law, the next question to be asked is not whether the conclusion of the tribunal is plainly wrong, but whether it is plainly and unarguably right notwithstanding that misdirection. It is only if it is plainly and unarguably right notwithstanding the misdirection that the decision can stand. If the conclusion was wrong or might have been wrong, then it is for an appellate tribunal to remit the case to the only tribunal which is charged with making findings of fact."
[78]The ET observed that if any claim for reasonable adjustments relates to a period before 23rd November 2006 it is out of time unless it is part of an act continuing beyond 22nd November 2006, three months before the presentation of the second ET1. The ET held at paragraph 30 that there was a 'water-shed event' separating everything that happened before the Claimant's suspension on 23rd September 2005 from everything that happened after 18th October 2006. Accordingly:
"The duty to make reasonable adjustments would arise again as from 18 th October 2006 if and when the Claimant agreed to re-enter training."
Thus the issue as to whether there were continuing acts which ended within the period ending three months before the presentation of the relevant ET1 was considered by the ET. The ET held that 'the claims of disability related discrimination set out at (a) to (g) of paragraph 5 in the Schedule did not appear as claims of disability related discrimination on any claim form'. The ET observed at paragraph 35:
"Since those matters would necessarily be out of time if specifically pleaded in the second claim, one would have expected the Claimant's solicitors to have pleaded that those matters should be considered notwithstanding that they were made out of time, on the basis that it would be just and equitable to consider them."
[79]As for the claim concerning the treatment by the Respondent of the Fairness at Work complaint of 27th September 2006 to which paragraph 5(h) of the Schedule relates, the ET held at paragraph 36 that it was not a continuing failure and that it would be out of time as a claim in the second ET. The claim would not have been out of time if it were included in the first ET1.[80]The ET then considered whether it was just and equitable to hear the reasonable adjustments claims and the paragraph 5(h) disability related discrimination claim notwithstanding that they were out of time.[81]The ET recorded at paragraph 41 that:
"There was absolutely no explanation from the Claimant for his delay in bringing those claims."
The majority held that it was not just and equitable to hear the reasonable adjustments claims relating to events in 2005 the subject of Paragraphs 5(a) to (g) on the Schedule. The ET held that it was just and equitable to hear the disability related claim identified in Paragraph 5(h) relating to the treatment of the Fairness at Work complaint made dated 27th September 2006.[82]In our judgment it is highly unlikely that the ET might reach a different decision on whether it was just and equitable to extend time to hear claims the subject of Paragraphs 5(a) to (g) on the Schedule if the claims were treated as being of direct or disability related discrimination under the first ET1 rather than of disability related discrimination under the second ET1. There is no appeal from the conclusion of the majority of the ET that it was not just and equitable to hear the reasonable adjustments claims to which Paragraphs 5(a) to (g) of the Schedule relate.[83]At paragraph 30 of its judgment the ET considered whether there had been a continuing act of failure to make reasonable adjustments. In light of its conclusion that the Claimant did not make a claim of disability discrimination in the first ET1 the ET did not have to consider, applying Hendricks , whether there were continuing acts of disability or disability related discrimination which started in 2005 and continued into the period within three months before presentation of the first ET1. In our judgment the fact that the Claimant was suspended from duty from 23rd September 2005 to 18th October 2006 may but would not necessarily break the continuity of any disability or disability related discrimination which started before that date. Ground 3: did the ET err in law in identifying the characteristics of a comparator for the purpose of the claim of victimisation under the RRA.[84]The ET considered the complaints of victimisation within the meaning of RRA in paragraphs 58 to 63 of its judgment. At paragraph 58 the ET directed itself:
"…the issue for the Tribunal to decide is whether or not the reason for the treatment was because the Claimant had made complaints about race discrimination."
The ET outlined certain factors which it considered relevant to identifying a hypothetical comparator in determining whether the acts complained of constituted victimisation within the meaning of the RRA. The allegations of victimisation at paragraphs 11(d) and (e) of the Schedule related to the decision communicated to the Claimant on 18th October 2006 to put him on restricted duties. In considering this allegation, the appropriate comparator was considered by the ET to be a person "who has not complained of race discrimination but who failed training, who has been arrested and suspended, subjected to criminal proceedings which would have a potential impact on his suitability to be a police officer, but where the comparator was acquitted, (but disciplinary proceedings are to continue) and still wishes to qualify as a police officer."[85]In relation to the allegation at paragraph 11(f), the failure to treat the Fairness at Work Complaint as a fairness at work complaint, the ET considered at paragraph 59 that the comparator was "a person who has not complained about race discrimination but who has made other complaints about his treatment over a period."[86]In relation to the allegations at paragraphs 11(g), the decision to issue the Claimant with a Regulation 13 notice and 11(h), the decision to extend the Claimant's probation to 9th July 2007, the ET held at paragraphs 60 and 61 that the correct comparator was "someone who has not complained of race discrimination but has made other complaints about his treatment over a period, has failed training and where there has been an interruption unrelated to training causing a gap since any training of nearly two years, who still wishes to be a police officer but has refused to re-enter training and who has made a claim to an Employment Tribunal."[87]As for the allegations of victimisation in paragraph 11(i): the requirement that the Claimant would have to recommence the whole of his training with no credit for assessments previously passed and paragraph 11(j): dispensation on 15th August 2007, the ET held at paragraphs 62 and 63 that the comparator was the same as that considered in paragraphs 60 and 61:
"but is someone who has passed some assessments during the failed training."
The contentions of the parties[88]Mr Sethi contended that the ET erred by failing to make a simple comparison between the treatment of the Claimant and someone who had not made complaints of race discrimination. He relied upon the dictum of Lord Nicholls in Chief Constable of West Yorkshire Police v Khan [2001] ICR 1065 in which he held at page 1072 paragraph 27:
"The statute is to be regarded as calling for a simple comparison between the treatment afforded to the complainant who has done a protected act and the treatment which was or would be afforded to other employees who have not done the protected act."
[89]If the approach in Khan had been applied in determining the characteristics of the appropriate comparator Mr Sethi submits that a reasonable ET properly directing itself would have concluded that that the Respondent had victimised the Claimant within the meaning of the RRA.[90]Mr Basu submitted that the issue for an ET to decide in considering a claim of victimisation under the RRA is whether the Claimant has shown that he was less favourably treated than a comparator because he had done one or more of the acts set out in RRA Section 2(1)(a)-(d). These include alleging that the discriminator has breached the RRA. He contended that taking into account various relevant features which affected the decision of the Respondent to act as he did are relevant and appropriate in ascertaining why the Respondent acted as he did. This the ET did in constructing the relevant hypothetical comparator. Their approach was merely another way of examining why the Respondent treated the Claimant as he did.[91]Mr Basu submitted that even if the ET erred in ascribing additional features to the comparator, it properly considered the reason why the Claimant received the treatment of which he complained as victimisation. The ET reached an unarguably correct decision as to the reason for each of the acts complained of. Accordingly, applying Dobie v Burns , this ground of appeal fails. Discussion[92]RRA Section 2 provides:
"2.— Discrimination by way of victimisation. (1) A person ("the discriminator") discriminates against another person ("the person victimised") in any circumstances relevant for the purposes of any provision of this Act if he treats the person victimised less favourably than in those circumstances he treats or would treat other persons, and does so by reason that the person victimised has— (a) brought proceedings against the discriminator or any other person under this Act; or … (d) alleged that the discriminator or any other person has committed an act which (whether or not the allegation so states) would amount to a contravention of this Act, or by reason that the discriminator knows that the person victimised intends to do any of those things, or suspects that the person victimised has done, or intends to do, any of them."
[93]The facts in Khan are comparable to those under consideration in this appeal. The complainant police officer presented an ET1 alleging race discrimination by the Chief Constable. He asked for a reference. This was refused because of the outstanding proceedings. The Chief Constable said that he would not give a reference to anyone who had pending proceedings against him. He contended that these facts should form part of the comparison for the purpose of determining whether he had treated the complainant less favourably than others. The EAT and Court of Appeal dismissed appeals by the Chief Constable against a finding of victimisation by the ET. The House of Lords allowed the appeal of the Chief Constable.[94]Lord Nicholls held at paragraph 23:
"Victimisation occurs when, in any circumstances relevant for the purposes of any provision of the Act, a person is treated less favourably than others because he has done one of the protected acts."
Three matters are to be considered in answering this question: first whether the act complained of has occurred in circumstances to which the RRA applies, second whether the treatment complained of is less favourable than the way in which others have been or would be treated and third whether the reason for the less favourable treatment was that the complainant had carried out the protected act.[95]Lord Nicholls considered two approaches which had been adopted in determining whether victimisation had occurred. Under one approach the reasons for the difference in treatment are not considered until the third stage. At the second stage of making a comparison, the only consideration is whether the comparator group would have suffered the treatment complained of. If the answer is no the ET goes on to decide the reason why the Respondent treated the Complainant in the way of which complaint is made. This was the approach adopted in Aziz v Trinity Street Taxis Ltd [1988] ICR 534 . The other approach is that "when considering whether a complainant was treated less favourably there should be factored into the comparison features which make the situation of the complainant and the control group fairly comparable."[96]Lord Nicholls observed at paragraph 27:
"There are arguments in favour of both approaches. On the whole I see no sufficient reason for departing from the former approach, adopted by Slade LJ in the Aziz case [1988] ICR 534 , 545-546."
[97]At paragraph 29 Lord Nicholls explained that the third element in the enquiry as to whether victimisation has been established is to determine "why did the alleged discriminator act as he did? What, consciously or unconsciously, was his reason? …The reason why a person acted as he did is a question of fact."[98]The ET in the case of Mr Baker adopted the second approach to ascertaining whether victimisation had been established. As explained by Lord Nicholls, to do so is not an error of law.[99]All members of the ET were in agreement as to the selection of the appropriate comparator for the purpose of considering each of the claims of victimisation within the meaning of the RRA. They then considered why the Respondent had taken the action complained of as acts of victimisation. Having made findings of fact as to why the Respondent acted in the way which gave rise to the complaints of victimisation the ET unanimously dismissed the complaints of victimisation the subject of allegations in paragraph 11(d)(e)(g)(h) and (i). The ET by majority dismissed the complaints of victimisation the subject of allegations in paragraph 11(f) and (j). The members of the ET reached their conclusions on the basis of their findings of fact as to the reasons for the actions of the Respondent which were alleged to be acts of victimisation within the meaning of the RRA.[100]Even if, as Mr Sethi contended, the ET erred in over introducing factors in the comparative exercise other than considering whether the comparator would have received the treatment complained of, the ET would have considered all the factors which it took into account in the comparative exercise in the third 'reason why' stage. Having made clear findings of fact in relation to each allegation of victimisation that the treatment of which complaint was made was because of factors which were unrelated to protected acts under RRA Section 2(1), the decision of the ET to dismiss all complaints of victimisation under the RRA was plainly and unarguably right. Conclusion[101]The ET did not err in holding that the first ET1 did not include a claim of disability discrimination.[102]The Employment Tribunal erred in refusing to hear and/or determine an application to amend the first ET1 to contend that the acts set out in the first ET1 constituted breaches of the Disability Discrimination Act 1995 . The case is remitted to the same Employment Tribunal if reasonably practicable or, if not, to an Employment Tribunal as directed by the Regional Judge, to determine the application sought to be made by the Claimant to the Employment Tribunal on 19th December 2008 to amend the first ET1. The application to amend should specify which provision of the Act is alleged to have been breached by each act relied upon and how it is said that the Employment Tribunal would have jurisdiction to hear the complaints having regard to applicable limitation periods. The application to amend is to be heard on the basis of evidence before the original Employment Tribunal. No additional evidence shall be admitted in support of the application to amend. If the application to amend is granted the Employment Tribunal will have conduct of any consequential proceedings.[103]The Employment Tribunal did not err in dismissing the claims of victimisation under the Race Relations Act 1976 .[104]Save that the application to amend the first ET1 3318735/2006 is to be remitted to the ET for determination, the appeal is dismissed.