“… Attempts must be made by all concerned to keep the discrimination proceedings within reasonable bounds by concentrating on the most serious and the most recent allegations …” (Mummery LJ) And in Gayle v Sandwell and West Birmingham Hospitals NHS Trust [ 2011] IRLR 810 that: “The parties and their advisers themselves have duties to discharge personal and professional responsibilities in the preparation and the presentation of the cases in the Tribunals. They must keep a proper sense of proportion in the issues raised for decision, in the selection of legal points worth taking and of relevance in the quantity and quality of the evidence that they need to call.” (Mummery LJ) The parties’ submissions The general approach 66. As I have indicated above, the argument, before the EJ and before me, has been focussed on the overarching principles identified by the Employment Judge and her general approach in applying them rather than on detailed examination of each and every form of claim which was sought to be amended. 67. By way of example, however, the Employment Judge received, as have I, detailed submissions on two of the forms of claim and the proposed amendments to them namely: the Estrocio claims and the individual claim of Mrs Irene De Souza. 68. The parties are agreed that I should consider whether, and if so to what extent, the EJ erred in law in identifying or applying the principles upon which she acted and, to a limited extent, identifying in respect of these two forms of claim any such particular errors of law there may have been. If, and to the extent that, the appellants succeed in that endeavour, I am invited to identify what those errors of law were, and where I am able to conclude what the outcome, without the error, must have been, to substitute a particular decision for that of the Employment Judge, but otherwise to remit the case to the Employment Judge for further consideration in the light of the identified error(s) of law. That would leave it open to the parties to consider the other forms of claim in the light of those findings and either, agree amendments to reflect those findings, or structure their arguments before the EJ. 69. This is an agreed approach which I am happy to adopt. It is in accordance with the guidance given by the Court of Appeal in Jafri v Lincoln College[2014] IRLR 544 paragraph 21. The appellants’ submissions The first ground 70. The first main ground of attack on the Employment Judge’s decision was her conclusion that she would decline to amend or introduce new factual allegations where those allegations were foreshadowed by the subjects of and the outcome of the collective grievance. Her reasoning was that the allegations had not been fully investigated by the respondent as grievances because it had not been able to obtain a substantive response from a junior manager, Ms Woods, who was central to many of those complaints. The Employment Judge accepted that, if those new factual allegations were added by way of amendment, there would be a need for further substantial enquiry by the respondent into them, and that their ability to recover and/or present evidence on them would be substantially compromised by the fact that many of the individuals complained of had since left their employment. On the other hand, the claims were for declarations and compensation limited to injuries to feeling. Accordingly, she concluded, those amended grounds of complaint would add little to the level of compensation, but, if the amendments were granted, it would result in significant costs and lengthier hearings to consider the additional allegations. 71. The background to this conclusion is that there was a series of collective grievances raised by well over a hundred members of staff, including the claimants, on various dates starting in December 2011. Ms Woods was named initially as being “intimidating and threatening to Goan employees at work” but no more detailed complaints were made at that stage. The respondent investigated the grievances thoroughly, each of those making the complaints was interviewed and many of them more than once. Ms Woods was interviewed for about an hour in February 2012 towards the beginning of the investigation and before the catalogue of complaints arriving from the individual complainants had emerged. 72. Ms Woods was absent from work from the 25 th January 2012 and her employment ceased by her resignation which took effect on 20 th April 2012. Thereafter she declined to co-operate with the respondent in their investigation of the grievances. Other persons named in the complaints had left the respondent’s employment during early 2012. Nonetheless, the respondent completed the investigation, as far as they could, and, having issued some interim conclusions on the 27 th April 2012, published final findings on the collective grievance on the 31 st May 2012. Thereafter it responded to the individual grievances by the end of June 2012. 73. The conclusions in respect of the collective grievance are couched in general terms as reflects the fact that, although furnished with a wealth of information from the complainants, those who were the subject of the complaints had not responded to the detailed complaints, save in the case of Ms Woods on one early occasion, when the allegations were highly generalised. 74. It is said by the appellants that, given the extent of the investigation conducted by the respondent into the grievance raising these matters and the respondent’s ability to issue final conclusions on them, albeit in general terms, the Employment Judge was in error in concluding that the fact that the respondent was unable to obtain the detailed responses of individuals who were accused but who had left their employment, for the purposes of that investigation, meant that the respondent would be so prejudiced in seeking to defend itself against the proposed amended claims, that the balance of prejudice and hardship was against granting those amendments. The second ground 75. The second ground addressed to this issue is that the Judge erred in concluding that there was no good reason for the claims now sought to be added, not to have been pleaded originally. The Employment Judge had rejected that argument based upon her conclusion that the only witness put forward by the claimants in support of this contention, Mr Fernandes, was not credible. She also rejected the contention that the claimants had been badly served by their previous solicitors. She concluded that there was an absence of any satisfactory evidence to support the contention that Thompsons were at fault by not including those matters in the original grounds of complaint. It is said that this conclusion flies in the face of the documentary evidence in the form of the claim forms themselves and the findings of inappropriate behaviour made by the respondent in their conclusions on the investigation into the collective grievances. The third ground 76. It is also said that the Employment Judge erred in taking into account the fact that addition of the amended claims would not significantly add to the compensation recoverable by the claimants. It is said that this ignored the importance of the other remedies being sought such as declarations or recommendations. The “labelling” point 77. The next ground of appeal concerns the refusal by the Employment Judge to permit claims that the annual leave policy, which was at the forefront of the original claims, constituted indirect discrimination and/or harassment related to race in addition to the claim that it was directly discriminatory. It is said that the Employment Judge misunderstood that the nature of this amendment was not to add a new claim but rather to attach a different label to claims already being made on the same factual basis. In particular, reliance is placed on the later decision of the Court of Appeal in Abercrombie and in particular the passage cited above. The post claim events 78. The final general ground of appeal is that the Employment Judge failed adequately to consider the balance of prejudice and hardship where the subject of the amendment was a complaint about matters which post dated the original claim. It is said that she was in error in failing properly to consider the distinction between those claims and the claims which were based on factual allegations which existed at the time of the original claim. It is also said that she was wrong in law in concluding and having regard to the fact that some of those complaints were now out of time by the date of the amendment, whereas the amended claim pleaded that those matters of complaint were of a continuing nature so as not to be out of time. The respondent’s general submissions 79. The respondent says that the reasoning of the Employment Judge is sufficient, clear and sustainable. The Employment Judge was entitled to conclude that the investigation of the grievance although, to the extent it was conducted, was thorough, was incomplete because the respondent did not have the benefit of the detailed responses of those who were the subject of criticisms because they were either off sick or had left their employment and so were unavailable. In order to defend claims including the allegations the subject of the proposed amendments, the respondent would need to seek to obtain evidence from the managers the subject of criticism. This would entail a substantial amount of additional work and, if that evidence were not forthcoming, they would be significantly prejudiced. 80. The respondent contends that the completion of an internal grievance procedure, as best the respondent could achieve it, is not to be equated with the respondent seeking to defend serious and substantial new allegations made by way of amendment, at a time when their ability to do so was significantly inhibited by the difficulty of obtaining access to relevant witnesses. The respondent contends that the reasoning of the Employment Judge on this issue was clear and she was entitled, having balanced all the relevant factors, to come to the conclusion that she did. 81. As to the second ground, the Employment Judge had made adverse findings of fact on the credibility of the only witness put up by the claimants to give their explanation for why these claims had not originally been included. Those findings formed the basis of the decision to strike out the complaint against Ms Woods, which is not the subject of appeal. It was based on the evidence heard by the Employment Judge and, it is said, cannot properly be described as a perverse finding. The reasons for the Employment Judge’s conclusion are sufficiently set out in her decision and it was a conclusion open to her on the evidence. 82. The respondent next contends that the fact that a proposed amendment would add little or, by contrast, would add a great deal, to the value of the monetary claim, is a factor which the Employment Judge was entitled to take into account as part of the balancing process. 83. On “relabelling”, it is argued that the Employment Judge was entitled to conclude that the “re-labelling” of existing claims as complaints of harassment and/or indirect discrimination would require further factual investigation and that no error of law is evidenced in her conclusion. 84. The respondent contends that, in the case of claims based on events which post dated the original claims, the Employment Judge was obviously right in concluding that they would require further factual enquiry, that the amendments proposed to add widespread allegations to already extensive allegations and that the Employment Judge was entitled to adopt the approach that she did. My conclusions on the general submissions The refusal to amend to add new factual allegations the subject of the collective grievance 85. In my judgment, the ground of appeal attacking the Employment Judge’s conclusion that no good reason had been shown for the complaints not being included in the original claim is not a good one. There was ample evidence upon which the EJ could find against the claimants based on the lack of credibility of Mr Fernandes as a witness. The findings by the respondent on the grievance, that Ms Woods behaviour was at times inappropriate and it was not unreasonable to suggest that employees may have perceived it as bullying and intimidation, falls a long way short of making the Employment Judge’s conclusion on this issue perverse. Furthermore, the Employment Judge was, on the material before her, entitled to conclude that the reason for these complaints not being included in the original claims was not the incompetence of the Union which had represented the claimants throughout and their original solicitors. 86. Nor, in my judgment, is the complaint that the Employment Judge erred in having regard to the fact that these amendments would not add significantly to the quantum of compensation of the claimants, an error of law which invalidates her decision on these proposed amendments. It was one of the factors to which she had regard and one to which she was entitled to have regard. 87. In my judgment the reasoning of the Employment Judge on this issue was clear and sufficient. It was to the effect that the investigation of the grievance, though thorough, was incomplete. The conclusions to which the respondent came on the grievance were made without the respondent having the opportunity to obtain the response of the various managers who had left their employment, or were too ill to respond before leaving their employment. The fact that, for the purposes of conducting the grievance, the respondent came to certain general conclusions, as best they could, as reflected in their document published at the end of May 2012, does not necessarily mean that the Employment Judge was wrong to conclude that, for them to respond adequately to these allegations now proposed as amendments to a claim against them in the Employment Tribunal, they would have to undertake a substantial amount of work and/or would be faced with significant prejudice by not having available potential witnesses who might support a defence to these new claims. 88. Not only was this the basis for the EJ’s decision, clear and explicitly stated, it was a matter of substantial weight to be placed in the balance which the Selkent principles call for. 89. In my judgment the decision of the Employment Judge in this respect cannot properly be described as erroneous in law or perverse. Accordingly, these grounds of appeal do not succeed. Errors of law in classification of amendments 90. In my judgment the Employment Judge did misclassify the proposed amendments seeking to add claims of indirect discrimination and harassment to claims of direct discrimination on the basis of factual allegations made in the original claims. 91. In particular, where the complaints were focussed on the adoption of policies in respect of the granting of leave, those allegations were well capable of being read as of indirect discrimination, regardless of the intention with which they were adopted or applied. The position of the respondent, when responding to the grievance raised on this issue, was that this policy was adopted across the relevant workforce and for operational reasons. That is a stance which is potentially centrally relevant to a claim of indirect discrimination. 92. Furthermore, a small number of individuals’ claims, as originally made, contended that the adoption of the annual leave policy did amount to indirect discrimination. So these issues were already in place before the Tribunal and would have to be prepared for and addressed by the respondent in relation to those particular claims. In my judgment it would be irrational for the other claimants not to have had the benefits of those arguments; they were equally applicable to them as to those claimants who had included indirect discrimination as part of the original claim. 93. Yet further, the Employment Judge permitted an amendment in the Estrocio claims application which, in substance, amounted to, or was capable of amounting to, an assertion of indirect discrimination. The refusal to permit that label to be attached to that permitted amendment, in my judgment, was an error of classification. 94. So too was the refusal to allow the label of harassment to be attached to those factual allegations. The evidence as to how its adoption was perceived by the complainants, which is central to this formulation of the claim, would be a matter for their evidence, and not evidence called by or on or behalf of the respondent. 95. Accordingly, this aspect of the appeal succeeds. The proposed amendment to add claims whose facts post date the original claim 96. The decision of the EJ on this aspect is focussed on paragraph 21 of the proposed amended Estrocio claims. At paragraph 80 the EJ simply says: “Paragraph 21 through to 21.2 introduces new factual allegations and new causes of action which would require substantial further enquiry.”
“Where it is closely connected with the claim originally pleaded … justice does not require the same approach”, Nor to his reference to theLimitation Act 1980 Section 35 (5) to the effect that, in the High Court, amendments to introduce new claims out of time are permissible where: “The new cause of action arises out of the same facts or substantially the same facts as are already in issue”. 98. In addition, the Employment Judge did not address the fact that the complaint of discrimination made in paragraph 21.1 concerns not the initial engagement but the ongoing impact of their engagement, a matter which is explicitly alleged in the proposed amendment, at paragraph 22.1, to be a continuing matter. 99. In my judgment, the criticism of the appellants is well made that the Employment Judge appears, having identified general principles, to have applied them across the board, and in particular in respect of this proposed amendment, without specifically applying her mind to the merits and demerits of permitting this category of amendment making allegations which post dated the original claim. In particular, the concerns, which had informed the ruling in respect of the allegations the subject of the internal grievance, that the respondent would be prejudiced because evidence it might wish to deploy to resist a claim would not be available does not apply to this type of proposed amendment. 100. In my judgment, therefore, the appellant has succeeded in identifying errors of law in the approach of the Employment Judge to this aspect of the case and the appeal in respect of these proposed amendments is allowed. The application of these conclusions to the Estrocio claims and Ms De Souza’s claim and the consequential orders 101. I first take the Estrocio claims: (1) The proposed amendments 2.2 and 2.3. These amount to applying different labels and should be allowed without further reference to the Employment Judge. (2) Proposed amendment 5 – clocking out. The appeal in respect of this refusal is dismissed. It is the introduction of a new factual allegation which either was the subject of a collective grievance or, it appears, not even the subject of a collective grievance. (3) Proposed amendment 7. The appeal is allowed. It is hard to see that this proposed amendment amounts to the introduction of a new factual allegation. The words “reprimand” and “threatened with disciplinary action” are so akin to the word “disciplined” that, in my judgment, it was an error of law to fail to identify this as mere clarification or elaboration of allegations already made. The amendment should be allowed without further reference to the EJ. (4) Proposed amendment 9.1. This is a mislabelling amendment and should have been allowed without further reference to the EJ. (5) Proposed amendment 11.1-4. This is a new factual allegation, some particulars of which post date the original claim (11.2 (c-g)). The appeal is allowed to the extent that the proposed amendments relate to the factual allegations arising after the original claim had been submitted. These matters will be remitted to the Employment Judge to hear argument on whether, applying the Selkent principles as explained in Abercrombie , these new allegations, post dating the original claim, should be added by way of amendment. (6) Proposed amendment 12.3 and 12.4. These proposed amendments apply the label “harassment” to what was already a permitted claim of direct discrimination. The appeal is allowed. These proposed amendments should be allowed without further reference to the EJ. (7) Proposed amendment 20-20.10 “The culture of fear”