The claimant brought a claim of unfair dismissal to the ET. He applied on the opening day of the hearing for permission to amend his claim form to include claims of race discrimination. The hearing was adjourned.  The Employment Judge was not provided with the text of the proposed amendment but when outlined to him it was clear that many of the claims were out of time.  The Judge allowed the amendment application and extended time to bring the claim. The respondent appealed.

The EAT allowed the appeal. The EJ had wrongly engaged with the application to amend in this case. It was fundamental that any application to amend a claim must be considered in the light of the actual proposed amendment.  The Employment Judge did not have before him, reduced to writing or in any form, the terms of the amendment being proposed. Also the EJ had failed to apply the right test when dealing not only with a matter which was out of time but also which was out of time by way of amendment and introduction into proceedings already on foot. Thirdly, even if the Judge had applied the right test then in any event the reasoning did not set out any proper indication of the prejudice that would flow to the respondent if the application were to be allowed.

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Appeal No. UKEAT/0126/13/RN

EMPLOYMENT APPEAL TRIBUNAL

FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8JX

At the Tribunal

On 22 March 2013

Before

MR RECORDER LUBA QC

(SITTING ALONE)

CHIEF CONSTABLE OF ESSEX POLICE (APPELLANT)

MR D KOVACEVIC (RESPONDENT)

Transcript of Proceedings

JUDGMENT

For the Appellant
MR SIMON FORSHAW (of Counsel)
Instructed by:
Essex Police
Legal Services
P O Box 2
Springfield
Chelsmford
Essex
CM2 6DA

For the Respondent
MR BARRY BLAKESLEY (Representative)

RACE DISCRIMINATION

On a claim for unfair dismissal, the Claimant applied on the opening day of the hearing for permission to amend the claim form to include numerous claims of race discrimination. The hearing was adjourned. The Employment Judge was not provided with the text of the proposed amendment but when outlined to him it was clear that many of the claims were out of time. The Judge allowed the amendment application and extended time to bring the claim. Employer's appeal allowed.

The Judge ought not to have entertained the application without seeing the terms of the proposed amendment. Even if the terms had been sufficiently outlined, the Judge has failed to apply the right test when considering the application.

Application to amend (when formulated) to be considered afresh by different Judge.

1. This is on my judgment on the appeal brought by Essex Police in relation to a claim made by Mr Dusko Kovacevic.

1. The appeal is from orders made by Employment Judgment Brook sitting at the East London Hearing Centre of the Employment Tribunal Service on 19 September 2012. The appeal is brought against the Judge's decision to permit the Claimant to amend his claim.

1. Mr Kovacevic, to whom I shall hereafter refer as the Claimant, was first employed by the Essex Police force, to which I shall hereafter refer as the Respondent, in May of 2005. He remained in their employment for a little under six years in the post of detention officer. As the name would suggest, he was responsible for those being held in police custody.

1. As a result of two incidents which occurred respectively on 17 April 2011 and 26 April 2011 the Claimant was made subject to disciplinary proceedings on the grounds of gross incompetence. Those matters were examined at a disciplinary hearing by the Respondent's hearings officer. In November 2011, the hearings officer was satisfied that both incidents had occurred and that the Claimant had been guilty of incompetence in respect of both. The hearings officers decided that the first incident, that is to say the one on 17 April 2011, was such a serious instance of gross incompetence that the appropriate sanction was dismissal. The hearings officer was not satisfied that the later matter, although a matter of incompetence, crossed the threshold of gross incompetence or merited the sanction of dismissal.

1. Pursuant to those decisions of the hearings officer, the Claimant was dismissed and his employment ended on or about 9 January 2012.

1. The Claimant brought an appeal against his dismissal within the procedures operated by the Respondent. He also lodged a claim with the Employment Tribunal Service which was received on 16 January 2012. In that claim he indicated, at section 5, that his claim was that he had been unfairly dismissed. He indicated at section 6 of the claim form that the remedy he sought was, "To get another job with the same employer and compensation (re-engagement)". At section 8 of the claim form he identified as his representative a trade union representative from his trade union, Unison. That representative was a Ms Margaret Davis.

1. The particulars given in the claim form are set out in paragraph 5.2 and it is plain that they were completed by Ms Davis of the union. The particulars given were as follows:

"It was alleged that an incident on 17th April 2011 showed evidence that Mr Kovacevic's response to dealing with the care and welfare of a detainee in his role as detention officer at western division fell significantly below the standards of performance expected by Essex Police. On balance of probabilities the chief officer hearing the case felt convinced that on the occasion of 17th April it was appropriate to issue dismissal with notice in that 'the essential trust and confidence that Essex Police should have in you as an employee has been fundamentally breached' This allegation was one of two allegations against Mr Kovacevic at that hearing, the other being unfounded. Unison requested the full day's CCTV for both days on 28th April 2011 which Unison believed would confirm Mr Dusko Kovacevic's innocence. This was not received until a later date despite chasing the request for full footage. Unison were given only a timed section of the footage although Mr Kovacevic had said he had made a previous approach to Sergeant Jarvis regarding the detainee for advice; this was denied by Sergeant Jarvis, the failure to provide full disclosure as expected and requested by Unison, preventing Unison the ability to properly counter the allegations against our member, Dusko Kovacevic."

1. As is fairly asserted by the Respondent in its pursuit of this appeal that was a straightforward allegation that the dismissal was unfair because there had been procedural unfairness in that the relevant evidence, available through a CCTV recording, had not been available in the disciplinary proceedings.

1. The claim form was not sent to the employers until 7 March 2012. By a letter of that date the Employment Tribunal Service indicated that the claim had been received, directed a response from the Respondent by 4 April 2012 and gave notice of a hearing of the claim on Thursday 7 June 2012. The second page of the Tribunal Service letter set out a series of case management orders containing a timetable for each party to comply with and to ensure that the matter was ready to be heard on 7 June 2012.

1. Shortly after that letter had been received, that is to say on 12 March 2012, the Claimant's internal appeal within the police service procedures was considered but was unsuccessful. On 30 March 2012 the Respondent put in a pleaded response to the claim in a document entitled, "Defence". By that document they joined issue with the Claimant's claim as pleaded and intimated that a two-day hearing would probably be more appropriate than the one day hearing which the Tribunal had identified for 7 June. At some stage in March and/or April 2012 the Claimant had the assistance of a firm of solicitors, Messrs Edwards Duthie. However, Messrs Edwards Duthie withdrew from acting by a letter sent to the Employment Tribunal Service on 30 April 2012. There was no compliance by the Claimant with the case management directions which had been set out in the letter of 7 March 2012 and thus it was the parties attended the hearing on 7 June 2012 in a state of preparation other than that which the Tribunal had envisaged.

1. By the fault of no party the hearing on 7 June 2012 could not proceed. It appears that no Employment Judge was in fact available on that date and the matter was therefore stood over for a re-fixed final hearing over two days on 19 September and 20 September 2012.

1. The Respondent had still not secured any participation by the Claimant in complying with the case management directions for the full hearing and in those circumstances applied for further case management orders. On 15 August 2012 Employment Judge Ferris, on consideration of that application and the representations of the parties, made two orders, firstly directing the Claimant to disclose documents by 29 August 2012 and secondly for the exchange of witness statements by 12 September 2012. In the event the Claimant failed to comply with either of those directions. Thus it was that on 19 September 2012 the parties attended for the anticipated but deferred full hearing of the Claimant's claim.

1. The matter was listed before Employment Judge Brook sitting alone. At the outset of that hearing the Judge appears to be have been addressed by a Mr Spring who was the newly appointed representative of the Claimant. Mr Spring is a member or representative of an organisation called Employees Representatives which I am told is a trade union registered with the Certification Officer. Mr Spring indicated that he had been very recently instructed and in those circumstances sought an adjournment so that he could properly prepare the Claimant's case for hearing. The learned Employment Judge acceded to that application and vacated the hearing before him. Obviously, that had adverse cost consequences for the Respondent and the Respondent applied for its costs. The Judge made an order that the Claimant pay £200 towards the Respondent's costs thrown away by the adjournment.

1. However, Mr Spring also indicated that he was applying on the Claimant's behalf for permission to amend the claim form. The Employment Judge entertained that application over what I am told was a full one-day hearing. At the end of the hearing he made a series of case management orders including an order that the Claimant have permission to extend time in order to bring claims for race discrimination. He ordered particulars of that claim for race discrimination to be given in accordance with procedural orders he made. For reasons that neither party was able to explain to me, the actual typescript of the Judge's order and the reasons for his decision were not promulgated until 23 January 2013. Among other orders the Judge made was a re-fixing of the hearing date. The claim was to be heard over some eight days from 10 April 2013.

1. Having received the order and reasons issued by Judge Brook, the Respondent pursued an appeal to this Appeal Tribunal on the terms of a Notice of Appeal signed on 1 March 2013. It was recognised by the Employment Appeal Tribunal office that the appeal would need expeditious consideration given the imminent full hearing of the claim. The papers were put before Singh J of the Tribunal who ordered the matter quickly on for a full hearing under the expedited procedure on 15 March 2013. In the event, the Claimant's representative successfully applied for an adjournment of that hearing of the appeal and thus it is that it came on for hearing before me today.

1. Employment Judge Brook gave written reasons for his order over the course of some 18 paragraphs. In those he sets out the circumstances in which the matter came before him describing the background as containing "something of a troubled history". He indicates that it was intimated to him orally by Mr Spring that there was an application to amend the claim to include claims of direct and indirect race discrimination. It is apparent from the reasons he gave that the Employment Judge was not presented with any document containing the proposed amendment. However, in the course of his written reasons, he sought to identify, based on what he had been told by Mr Spring, what would be the subject matter of the application to amend. He appears to have decided that he could entertain the application there and then. He records however that no notice of the application, or even of the intention to make the application, had been given to the Respondent. He appears to have received some material from Ms Davis, the trade union representative who had completed the initial claim form for the Claimant and who attended at the hearing, but it is not at all clear from paragraphs 10 and 11 of his reasons whether she was in fact giving evidence or making representations in addition to the representations made by the Claimant's actual representative on the day; that is to say Mr Spring.

1. In paragraphs 14 to 16 the learned Judge describes his understanding of the applications. He recognised that they raised an issue as whether the claims for race discrimination were brought within the statutory time limits. He appears to have treated himself as seized of an application to extend time and in paragraph 17 he indicates that he decided that he should allow the claims to proceed albeit that they were prima facie out of time. He says at the end of paragraph 17 of his reasons:

"All that I have decided today is that there be an extension of time for the claimant to bring his claims for race discrimination on the basis that it just and equitable to do so."

1. It is remarkable that his order does not in fact record that he has given permission to amend the claim form or in fact identify what the amendment is. He directed the preparation of a schedule of particulars in support of the amended claim form but there is simply no amendment.

1. The Respondent was represented on the appeal by Mr Simon Forshaw of counsel who had not been the counsel below. Mr Forshaw's primary submission was that the Respondent suffered considerable prejudice as a result of the order made by the Employment Judge. More particularly, he criticised the Employment Judge's orders in three respects. First, he submitted that the Judge ought not to have embarked upon an analysis of the merits of otherwise of the application to amend without "proper particulars of the application". Secondly, he submitted that, insofar as the Judge had become seized of the application, he had not applied the right test. Mr Forshaw relied, unsurprisingly, on the authority of Selkent Bus Company Ltd v Moore [1996] ICR 836 for a statement of principle as to the correct legal test, that is to say that a Judge seized of an application for amendment must consider ultimately the balance of hardship and the relative hardship on the one hand of granting the amendment and on the other of refusing it. Thirdly, Mr Forshaw submitted that, even if the Judge had become seized of the correct test, he had failed to take into account (in weighing the balance) a series of matters going to the extent of the prejudice suffered by the Respondent. He took me through the particulars of those matters as set out in the Notice of Appeal in paragraphs 19 (a) through to (f). His final submission was that in all the circumstances, on the material which faced him, the Judge's conclusion must have been perverse.

1. The Claimant was represented before me by Mr Blakesley of the organisation Employees Representatives. He indicated that the correct test was agreed to be the balance of hardship test set down in the Selkent decision. He candidly acknowledged that the Judge was in difficulty in applying that test to an application to amend which had not been reduced to writing and which was not particularised before him. Indeed, in the course of his submissions Mr Blakesley said this, "I believe the Judge should not have applied the balance of prejudice test until the Scott schedule was seen." The Scott schedule is apparently the rubric that was used by the Judge orally in describing the schedule of particulars which he came to direct in due course in his order.

1. I have not the least hesitation in allowing this appeal. It is quite plain that the Employment Judge wrongly engaged with the application to amend in this case. Before even turning to the question of the right test, it is fundamental that any application to amend a claim must be considered in the light of the actual proposed amendment. The Employment Judge did not have before him, reduced to writing or in any form, the terms of the amendment being proposed. It might be, as Mr Forshaw acknowledged, that in certain circumstances (e.g. where a very simple amendment is sought or a limited amendment is asked for by a litigant in person) that an Employment Judge may be able to proceed without requiring the specifics of the amendment to be before him in writing. But this was a case in which the Claimant was being represented by a professional representative whom he had selected and recently instructed. The Employment Judge plainly could, and should, have required the representative to reduce the application to writing before considering it on its merits. The dangers of doing otherwise are obvious and are made manifest by what happened in this case.

1. The Judge appears to have spent the best part of a day eliciting from the Claimant's representative, and indeed from his former representative who was also in attendance, what the nature of the allegations of race discrimination would be. He appears then, although the Respondent had been given no notice of these matters, to have proceeded immediately to determine whether, insofar as the new claims could only be introduced by amendment with the benefit of an extension of time, there should be such an extension of time. In my judgment this is a process in which this Employment Judge should never have engaged.

1. One of the dangers of permitting an amendment without seeing its terms is that, having been given the green light to draft an amendment, a party may go beyond the terms which the Judge was led to understand might be included in the amendment he was permitting. In this particular case, the schedule later drawn for the Claimant in response to the Judge's order sets out a very large number of allegations and incidents which span a period of many years and involve many different individuals and occasions.

1. I have not taken the content of that schedule into account in determining the proper disposal of the appeal but I draw attention to it simply as an instance of the dangers and difficulties that can arise if an application to amend is entertained without consideration of the precise terms of the amendment itself. Moreover, the Judge did not ultimately order an amendment of the claim form. He ordered a schedule of particulars. Those particulars will relate to an un-amended claim form which presently contains only a claim of unfair dismissal and seeks only the remedy of engagement or re-engagement. That is a wholly unsatisfactory situation.

1. On that basis alone it is proper to allow this appeal. However, having heard argument on the other aspects of the appeal, it is proper that I should deal with them. I turn to the second of the matters I have identified above in the short summary of Mr Forshaw's submissions, i.e. that the Judge applied the wrong test or failed to apply the right test. One would expect to see, on an application for permission to amend, an Employment Judge refer to the Selkent test and identify in his reasons those aspects going to injustice and prejudice, if the application is allowed, and those going to injustice and prejudice, if the application is not allowed. One gets, in my judgment, no sense of an exercise of that nature having been undertaken in this case. Instead, as Mr Forshaw fairly submits, what this Judge has done is to direct himself to the question of whether it would be just and equitable to extend time to allow a claim of race discrimination (or more than one claim of race discrimination) to be made out of time. That is the only test he applied and it was conceded by the Respondent's representative that that was the right test to apply to matters which were out of time. The difficulty is that the Judge was not only dealing with a matter which was out of time, he was dealing with an application to adduce a matter out of time by way of amendment and introduction into proceedings already on foot. I am quite satisfied that the Respondent has established that the Judge in this case did fail to apply the right test.

1. The third limb of Mr Forshaw's submissions was that even if I am wrong and the Judge had applied the right test then in any event the reasoning does not set out any proper indication of the prejudice that would flow to the Respondent if the application were to be allowed. In my judgment the prejudice might have been thought obvious. Not least: that the application to amend was made with no notice at all; that the amendment itself was not reduced to writing; that, on the basis of the outline of it offered by the representative for the Claimant, it would extend over many years and involve many players; and that potentially most or all of it would be out of time. Further, that adducing the material would cause a quadrupling of the estimated intended length of hearing, which indeed it did. Yet further, that there had been extensive delay on the part of the Claimant both in bringing the application forward and in complying with any of the prior procedural orders made by the Tribunal itself.

1. I am satisfied, on that material, that had the Judge been applying the right test he did indeed fail to take into account those matters. Or at least his Judgment does not record that he took them into account when he plainly should have done. What conclusion he would have reached had he taken those matters into account one cannot say.

1. As I have indicated, Mr Blakesley conceded in the course of his submissions that this matter ought not to have proceeded in the way it did at all and that the balance of hardship test should only have been applied once the application to amend had been reduced to writing. That concession receives my ringing endorsement.

1. For all the reasons given above, this appeal must plainly be allowed. Mr Forshaw submits that what should follow is that I should embark upon the exercise myself of determining an application to amend now that the application has been reduced to writing. I do not accept that invitation for two reasons. First, the application to amend the claim has not been reduced to writing. No document before me seeks to amend the claim form or shows what the claim form would look like post amendment. I would expect any such claim form to add to the existing claim of unfair dismissal other claims. I would then expect that claim form to identify what remedy was sought for those others claims. Then I would expect particulars to be given. All I have been given is a very lengthy set of particularised incidents set out in the schedule to which I have already referred.

1. The second reason I shall decline Mr Forshaw's invitation is that the question of whether or not to grant an amendment to a claim form is self-evidently a matter which should be considered initially on its merits by frontline Employment Judges. They are best placed to know the full circumstances of Tribunal proceedings before them and to determine whether, in the exercise of a broad discretion, an amendment should be allowed (applying the right tests). If the assessment is wrong, then either party can seek to appeal to this Employment Appeal Tribunal on a point of law. If I take this function myself, one stage of the proper process is omitted.

1. For those two reasons I decline to determine the application to amend. It must follow that the application to amend should be remitted. The final question is whether the application should be remitted for consideration by the same Judge or a different Judge of the Employment Tribunal. I am satisfied that the present case is within a class where the party appealing can rightly say that the first instance Judge has already made up his mind on the material as between the parties. This is a case therefore in which the matter should go to a fresh Judge at the Employment Tribunal. I make it plain, however, that I am simply remitting to that Judge the question of whether there should be allowed an application to amend the claim form. The actual terms of the application to amend will be a matter for the Claimant's representatives. For the reasons I have given, the present material is not sufficient to constitute an application to amend the claim. This appeal is allowed.