The claimant originally complained of disability discrimination and, according to the claimant, his ET1 also made it clear that  the respondent failed to make reasonable adjustments. When his ET1 was re-drafted by his solicitor, it was specifically restricted to the complaint of disability discrimination only. The Tribunal refused an application to amend the ET1 to include failure to make reasonable adjustments, and the EAT agreed.  The original ET1 had not even hinted that a claim for failure to make reasonable adjustments might have been made, and also, the respondent would be liable for a lot of additional cost, years after the claim was first made, if the amendment was allowed.

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Appeal No. UKEATS/0056/09/BI

EMPLOYMENT APPEAL TRIBUNAL

52 MELVILLE STREET, EDINBURGH, EH3 7HF

At the Tribunal

On 14 May 2010

Before

THE HONOURABLE LADY SMITH

MISS J GASKELL

MR P HUNTER

MR JOHN ANDERSON (APPELLANT)

NETWORK RAIL INFRASTRUCTURE LTD (RESPONDENT)

Transcript of Proceedings

JUDGMENT

For the Appellant
MS ALICE STOBART (Advocate )
Instructed by:
Kippen Campbell Solicitors
48 Tay Street
Perth
PH1 5TR

For the Respondent
MR JOHN MACMILLAN (Solicitor)
MacRoberts Solicitors
152 Bath Street
Glasgow
G2 4TB

PRACTICE AND PROCEDURE – Application/claim

DISABILITY DISCRIMINATION – Reasonable adjustments

Appeal against Tribunal's refusal to allow the Claimant to amend his case dismissed in circumstances where the amendment sought to introduce a claim under s.3A(2) of Disability Discrimination Act when a previous amendment, over nine months earlier had specifically restricted the Claimant's claim to one advanced solely under s.3A(1). The Tribunal had considered all relevant factors and reached a decision which was manifestly open to it.

1. This is an appeal against the unanimous order of an Employment Tribunal sitting (with lay members) at Dundee, Chairman Mr CS Watt, registered on 6 October 2009 refusing the Claimant's application to amend.

1. The Claimant was employed by the Respondents as a signaller. As at the date of presentation of his claim he was still in their employment.

1. By a form ET1 dated 18 April 2008, which was completed by the Claimant, a claim for disability discrimination was presented to the Employment Tribunal. Much turned in the course of the submissions before us on what was contained in the part of the original box 6.2 which was headed "First act of Discrimination" and we, accordingly, set out that part in full:

"Concerning M Brown admitting I was "considered unsuitable for allocation to a relief post," (my substantive grade) as a result of ill health and subsequent accommodation in Dunkeld resident post following reorganisation.

(letter 07 January 2008)

The procedure agreement for reorganisation 1994 was not correctly adhered to.

Preference criterias, being first criteria for selection was not applied.

"One of the employees located at Dunkeld had opted for a post at Blair Atholl as their first choice. (This being a Dunkeld relief applying for Blair Atholl resident post with relevant distance of 21 miles)

This was discounted in favour of one Perth Relief allocation to Blair Atholl relief post (with relevant distance of 35 miles.)

The unallocated Blair Atholl resident post was given to an EXTERNAL APPLICANT.

Seniority criteria, being second criteria for selection was not adhered too.

Suitability criteria, being third criteria for selection was utilised over and above the agreed second criteria in discrimination against me to meet Network Rail's own ends.

Mr Brown has admitted that I was unsuitable due to absence from work due to ill health for over twelve months.

On 14 December 2006 following meeting to discuss my continued employ Mr Brown consulted me on reorganisation. (this being first advice on the matter)

I advised Mr Brown that I was redundant Relief Signaller Pitlochry and should therefore be identified with Relief Signaller Blair Atholl post.

Yet on 19 December 2006, only five days later L. McArthur's letter states consultation is concluded and I would be closed listed.

An employee can only be made redundant if the post ceases to exist. For the post to reappear with 100% identical duties (Pitlochry Relief covered Dunkeld Pitlochry and Blair Atholl. Reappearing as Blair Atholl Relief covering Dunkeld Pitlochry and Blair Atholl) the post must be re-engaged by the redundant employee.

By Mr Brown's own admission I have been Discriminated against due to my Disability."

1. A case management discussion was held before Employment Judge R Christie on 7 November 2008. The Claimant was represented by counsel (Mr Grant-Hutchison, advocate). He did not demur from the Respondents' submission that, as drafted, the ET1 lacked clarity. In the course of discussion, reference was made to the main claim as being in respect of the loss of overtime and flexibility payments resulting from the change in the Claimant's job position and indicated that they would wish to amend. The Tribunal ordered the Claimant's representative to present their proposed amendment to the form ET1 no later than 5 December 2008, that is, within a month. The Respondents were given until 24 December to answer any such amendment.

1. A further CMD was held on 8 January 2009. By that date, the Claimant's solicitor had written by letter dated 9 December 2008, applying to amend the ET1 in terms which are set out in full at paragraph 7 of the Tribunal's judgment. The letter stated:

"After further advice, the claimant has resolved to proceed with this case solely on the basis of the alleged discrimination said to have been involved when the claimant's job position was changed to that of Signaller Class 2 Resident."

and that he therefore:

" …formally withdraws all other parts of his claim against all respondents in the present proceedings."

and that the:

"..sole remaining issue.."

was as thereafter set out. The whole of section 6.2 of the ET1 was to be held deleted and new terms inserted in its place. The terms of the new wording can only be read as a claim which is presented solely under and in terms of s.3A(1) of the Disability Discrimination Act 1995 ("DDA"). The Employment Judge prepared a note following the CMD in which he states:

"..Mr McPherson has presented a revised amendment. This takes the form of reframing the entire claim and, with one exception, has the effect of removing all of the previous claims. The sole exception is the complaint of disability discrimination where the allegedly less favourable treatment is said to be the changing of the claimant's job position to that of "Signaller Class 2 Resident"…..The proceedings are thus confined for future purposes to that particular complaint."

1. The case was set down for a hearing to begin in March 2009. On the first day of that hearing counsel then instructed for the Claimant (Mr Hardman, advocate) and his solicitors withdrew from acting. The hearing was, accordingly, cancelled and fresh dates were fixed, to start on 1 September 2009.

1. On 1 September 2009, Ms Stobart, advocate, appeared for the Claimant. She had been first instructed in May, received papers in July and consulted on 13 August. We were not advised when those instructing her had first been instructed by the Claimant.

1. At the start of the hearing on 1 September, in answer to enquiry by the Employment Judge, Ms Stobart advised that the Claimant's case was that there had been two breaches of the DDA, the first of which was a breach of s.3A(1) and the second of which was a breach of s.3A(2) in respect that the Respondents had failed in a duty to make reasonable adjustments. The Employment Judge referred to the letter by the Claimant's then solicitor to the Tribunal of 9 December 2008 and expressed the view that it did not contain any reference to a reasonable adjustments claim. Mr MacMillan, for the Respondents, made the same point and the upshot was that Ms Stobart accepted that she would require to present a further proposed amendment. It is that amendment which is the subject of this appeal.

1. The proposed amendment contains nine paragraphs. It alleges a failure to consult with the Claimant about reorganisation, a failure to follow what is said to be a nationally agreed procedure regarding signalling staff and reorganisations in circumstances where that procedure was a provision, criterion or practice which should have been followed, allegations regarding two named employees in relation to closed lists, an assertion that there should have been a review of the position once the Claimant was fit to return to work, an assertion that the Claimant was put at a substantial disadvantage as compared to two named non disabled individuals and then a list of five separate "reasonable steps" which it is said the Respondents ought to have taken.

1. The application to amend was made by written submissions and the Respondents opposed it also by way of written submissions.

1. The original written submissions for the Claimant included an acceptance that the extant ET1 made no specific reference to a claim of failure to make reasonable adjustments. They recognised that it contained a claim under s.3A(1) of DDA, suggested that such a claim was not dissimilar to a claim of failure to make reasonable adjustments, that the factual enquiry required would not be substantially different, and that it could have been envisaged by the Respondent that the Claimant had intended to make such a claim. After having seen the Respondents' reply to their submissions, Ms Stobart prepared a further submission for the Claimant in which matters are put less tentatively; in that document it is said that it was "clear" from the terms of the original ET1 that it "envisaged" a claim of failure to make reasonable adjustments. A theme of both the original written submission and the response to the Respondents' opposition is that the Claimant was let down by those acting for him in December 2008/January 2009 and the amendment that they made to the ET1 failed to include a claim under s.3A(2) of the DDA when it should have done so.

1. The proposed amendment was opposed on behalf of the Respondents principally on the ground that, in terms of the letter of 9 December 2008, all of the Claimant's claims had been withdrawn except for his claim that he had suffered disability related discrimination when his job was changed (to that of a Signaller Class 2 resident). The amendment came too late. The suggestion that the Respondents could have anticipated a reasonable adjustments claim was firmly resisted. If the proposed amendment was allowed, the Respondents would have to carry out further investigations which would not be entirely straightforward given that witnesses had dispersed.

1. The Tribunal summarise, in greater detail than our outline, the written submissions; they plainly gave them careful consideration. They refer to the relevant law including the cases of Selkent Bus Company Ltd v Moore [1996] ICR 836, and Ali v Office of National Statistics [2005] IRLR 2001. They then consider the application under five separate and, in the circumstances, appropriate chapters, namely (1) whether or not what was proposed was a new cause of action, (2) the lateness of the amendment, (3) hardship, (4) delay; and (5) time bar. On consideration of these issues, the Tribunal plainly found that they each weighed in favour of the Respondents and against allowing the amendment. At paragraph 69 they summarise their decision:

"Overall, when considering the balance of all the relevant factors in this case, the Tribunal are not prepared to allow the amendment. The Tribunal especially bear in mind the fact that the claimant was given, at the end of 2008, an opportunity to clarify and specify exactly what his claim or claims of discrimination was or were. That was done in precise terms by experienced legal practitioners. The Tribunal take the view that it must be clear from the term of the letter of 9 December 2008, that that claim was one of "disability – related" discrimination only. No attempt was made from December 2008, until 1 September 2009, to further amend to include a claim for a breach of the duty to carry out "reasonable adjustments".

1. There were originally three grounds of appeal but only two were argued.

1. The first ground of appeal was that the Tribunal had erred in failing to take account "the fact that the Claimant had raised the issue of the employer's duty to make reasonable adjustments in his ET1 as originally presented" and should have had regard to the fact that the "subsequent deletion from the ET1 of the express averments relating to …..duty to make reasonable adjustments…arose from an ill-judged attempt at clarification/re-drafting of the ET1 by the Claimant's former solicitor.". The ground also asserts that the Tribunal should have noted that the Respondents were or ought to have been fully aware that a claim for failure to make reasonable adjustments was being made in the original ET1 and that refusal of the amendment would be a windfall benefit to them.

1. In support of the first ground of appeal Ms Stobart sought to persuade us that a claim for failure to make reasonable adjustments was included in the "First act of Discrimination" passage in paragraph 6.2 of the ET1 which we have set out above and that the Tribunal had failed to take that into account. She also said that the solicitor who withdrew it was in error in doing so. If it was the fault of the Claimant's solicitor then he should not suffer. In support of that submission she referred to Chohan v Derby Law Centre [2004] IRLR 685, and TGWU v Safeway Stores* UKEAT/0092/07/LA. She submitted that the general rule in employment law cases was that it was better to allow the claim to be made if it was not an unexpected one. What had, she said, happened was that the claim for reasonable adjustments had been part of the Claimant's original claim, had then been taken out (in error) and all that the Claimant was trying to do was to return to the status quo ab ante.*

1. The second ground of appeal was that the Tribunal had erred in assuming that the cogency of the evidence about the reasonable adjustments claim would have been affected by the passage of time. This was an attack on an observation by the Tribunal that one of the factors to be considered was that the incidents complained of occurred in November 2007 and that investigation of those matters would be in circumstances where memories would have been dimmed, if the witnesses could be obtained. Ms Stobart accepted that a fresh enquiry would have had to be made but her point seemed to be that since there were days available in October 2009 and the relevant witnesses appeared to be available, there would not be a problem.

1. In response, Mr MacMillan submitted that the Tribunal had not erred. They had exercised their discretion properly and appropriately and had reached a decision which was unassailable. There was no question of the original ET1 containing a claim for failure to make reasonable adjustments. What was, however, most significant was that the Claimant had been given time to amend in November/December 2008 and had done so in a manner that plainly excluded such a claim. There was no indication that that had not been done on the Claimant's instructions. The new amendment proposed in September 2009 was a new claim, late in the day, and there would have been hardship to the Respondents. The Claimant was pressing to make progress with the claim and even if the amendment had been allowed was going to oppose any discharge of the hearing. He referred to the case of UCATT v Amicus & ors UKEATS/0007/008 and UKEATS/0014/08 and submitted that in common with the Claimants there, the present Claimant had really put forward no reason for his application to amend being granted other than what was seen as a lack of prejudice to the Respondents. That was not enough, particularly in the light of the whole circumstances.

1. We are readily satisfied that this appeal falls to be dismissed.

1. At the heart of the Claimant's approach on appeal was the proposition that it was clear that the Claimant had included a claim for failure to make reasonable adjustments in his original ET1. As noted above, that is a proposition that appears to have gained in conviction over the course of the Claimant's submissions on this matter, Ms Stobart's initial written submission not having put matters so strongly. We cannot, however, accept that the original ET1 even hinted at an intention to present a claim for failure to make reasonable adjustments. There is, accordingly, no basis on which it could be said that the Tribunal ought to have taken account of it having done so or ought to have asked themselves how that affected their considerations. The Tribunal did not, we note, ignore the matter. At paragraph 45 of their reasons they explain:

"In the submissions made by the claimant to support the proposed new amendment it seems to be suggested that some of the facts in the original ET1 of 18 April 2008 should have indicated to the respondents that there may have been a "reasonable adjustments" case. The Tribunal do not agree with that argument."

1. That was, manifestly, a conclusion that they were entitled to reach. We are, further, not satisfied that it could be said that even if there had been a reasonable adjustments claim in the original ET1, the Tribunal would have been bound to determine the application to amend differently. They would still have been entitled to accord the other particular factors of this case, particularly the reduction of the claim to the sole issue set out in the letter of 9 December 2008, as indicating that the interests of justice lay in refusing the amendment.

1. We do not consider that the Tribunal can be criticised for regarding the restriction of the Claimant's claim in terms of the amendment in the letter of 9 December 2008 as being of considerable significance. The issue to which the claim was reduced did not concern any duty to make reasonable adjustments. Insofar as it was suggested that the Tribunal should have, in effect, relieved the Claimant of the consequences of failures by his legal advisers, the problem with that is that there was nothing before the Tribunal (or indeed before us) to indicate that the 9 December 2008 amendment was made other than on the instructions of the Claimant. There is thus no basis on which it can be said that the Tribunal should have approached matters differently in that regard. In particular, there is no basis on which it can be said that the Tribunal should have assumed that there was fault on the part of the Claimant's advisers. The circumstances here were, we would add, rather different than those in the Chohan and TGWU cases which proceeded on the basis that the Claimants' solicitors had been negligent.

1. We cannot, in all the circumstances, accept that the first ground of appeal was well founded.

1. Turning to the second ground of appeal, we were not sure that it was really being pressed at the end of the day but we can deal with it shortly. The Tribunal did not fall into error. The circumstances were that the issue of whether or not the Respondents should have made reasonable adjustments could not have been expected to be investigated at the time of the events complained of or at the time of the presentation of the Claimant's claim so it was going to have to be investigated afresh. The fact that some of the relevant witnesses were no longer in the Respondents' employment would have made matters more cumbersome than otherwise and the Tribunal were entitled to take that account. There was also, in our view, no error on their part in taking account of the fact that memories may have been dimmed in the time that had elapsed since the events complained of. The Tribunal were not bound to assume that witnesses would have been asked about these matters when precognosed for the purposes of the claim either as originally pled or as contained in the amended version set out in the letter of 9 December 2008. The Tribunal were also entitled to and did have regard to the fact that this would all be liable to involve the Respondents in additional cost.

1. In summary, in these circumstances, where the Claimant sought to amend his claim so as to introduce a claim for failure to make reasonable adjustments for the first time some two years after the incidents complained of, seventeen months after the presentation of his claim to the Employment Tribunal, nine months or so after he had, through his legal advisers, stated that his claim was restricted to a single issue that had nothing to do with a claim for reasonable adjustments, in circumstances where he would have been time barred if presenting it as a fresh claim, and where it was liable to cause some hardship to the Respondents, it was plainly open to the Tribunal to refuse to allow the amendment. They had a discretion in the matter and we do not consider that their exercise of that discretion can be faulted.

1. We will pronounce an order dismissing the appeal and remit the case to the Employment Tribunal to proceed as accords.