The claimant had raised a claim of unfair dismissal. She then applied many months later to add allegations of race and disability discrimination which were refused on the basis that it was not just and equitable to allow the amendment. The claimant appealed.

The EAT allowed the appeal. There was documentation to show that she had raised complaints of race and disability discrimination with her union representative and solicitors at the relevant time but the EJ had overlooked this documentary material. In terms of the prejudice to the respondent in having to deal with the delay, the prejudice diminished if the claimant had in fact put her complaints before the employer at the relevant stage.

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Appeal No. UKEAT/0517/12/KN

EMPLOYMENT APPEAL TRIBUNAL

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

At the Tribunal

On 3 April 2013

Before

HIS HONOUR JUDGE McMULLEN QC (SITTING ALONE)

DOSANJH (APPELLANT)

NOTTINGHAMSHIRE HEALTHCARE NHS TRUST (RESPONDENT)

Transcript of Proceedings

JUDGMENT

For the Appellant
MR PAUL MICHELL (of Counsel)

(Appearing under the Employment Law Appeal Advice Scheme) (who did not appear below)

For the Respondent
Written submissions

PRACTICE AND PROCEDURE

Amendment

Bias, misconduct and procedural irregularity

It is reasonably arguable that the Employment Judge overlooked the Claimant's internal grievances when he held the delay in raising new discrimination claims made it inequitable to amend the claim form.

Further to Whyte v Lewisham similar observations on the raising of unfounded allegations of bias withdrawn at the appeal.

1. This case follows the directions I gave twice sending it to a preliminary hearing. I will refer to the parties to the Claimant and the Respondent. Today the Claimant has the advantage to be represented by Mr Paul Michell of counsel giving his services under the ELAA Scheme. With his careful help I have been able to see my way to the real point in this case and in the course of exchanges the following position has been reached.

1. Allegations of bias, actual and apparent, made by the Claimant against Employment Judge Hutchinson are abandoned.

1. The Claimant is a clinical psychologist and notes with particular care human behaviour and mannerism. She formed the view that she was not getting, as Mr Michell put it, a fair crack of the whip and the Judge was overlooking points and majoring on points which were unfairly taken against her. To this extent she was assisted by her trial counsel. Mr Michell, who did not appear below, accepts that it is legitimate for me in an exercise like this to consider who is giving the opinion "that the Judge was difficult from the outset".

1. With that in mind I pointed out that trial counsel had been called to the Bar in 2010 and appeared to be the junior tenant in chambers in Nottingham. The Respondent was represented by a solicitor in a well known firm of employment specialists. I was to balance the reflections of those two professionals with very differing experiences, together with that of the Claimant clinician and another witness. She is no doubt highly skilled in human behaviour, but I doubt that knowledge could be imputed to the hypothetical informed observer in a bias challenge.

1. That difficult task would be performed on live evidence before a Judge of this court if this case goes to a hearing. It has been avoided by the very sensible approach taken by the Claimant in consultation with Mr Michell to abandon these unfortunate allegations. They are unfortunate because someone with experience would recognise that the handling in a single judge tribunal of particular complaints can vary, but to elevate the dissatisfaction at losing into a complaint of bias is usually misjudged. In this case, as a simple reproof to the allegation of bias, the Judge found in favour of the Claimant and did not strike out her unfair dismissal claim which lives on.

1. Having myself considered all of the material the Claimant put in front of me, including her opinion as a psychologist, together with the Respondent's material, I was minded at the outset of the case to dismiss the complaints. I am considerably heartened by the injection of the professional advice of Mr Michell into this. It is disappointing that the observations I made in precisely this situation in [Whyte v Lewisham]() UKEAT/0256/12 a year ago continue to go unheeded by appellants seeking to bolster a weak case with allegations against judges which they are not prepared to follow through. All allegations of irregularity are dismissed on withdrawal.

1. I then turn to the application to amend the claim to add allegations of race and disability. This forms the first live part of the appeal. There is no dispute that these are new claims and not simply relabelled; and that the delay is very substantial. The Judge reached a conclusion that the application should be refused, at the end of paragraph 6.3 of his Judgment. Because of the delay, and it may not be as long as 18 months but was perhaps 13 months before the issue was raised formally in the proceedings, it was not just and equitable to allow the amendment. There is no dispute that the Claimant was in the hands of her trade union full time organiser and of Messrs Thompsons Solicitors; all of course experts in this field. However, it does appear to me that the Judge went beyond his simple finding in paragraph 6.3 and considered against the Claimant that there was little substance in these claims, for otherwise she would have raised them with her representatives and her representatives would have raised them too.

1. Race

1. I have been shown the documentation which was before the Judge indicating that the Claimant was raising a complaint of race discrimination with her union representative and with her solicitors at the relevant times. So this matter requires a further hearing because the Judge has found, adversely to the Claimant, that she did not raise the matter with her representatives, and therefore it was not just and equitable to allow her so to do some 13 to 18 months later. Put as a matter of law, it is that the Judge overlooked the documentary material indicating that she had taken such steps. Whether he would have reached the same conclusion is a different matter, but it is sufficient to establish a reasonably arguable question of law.

1. The second issues relates to the prejudice which the Judge considered to both of the parties in allowing the case to go forward. In my judgment there are reasonably arguable points here too, for the prejudice to the Respondent in having to deal late in the day with a claim diminishes if she did in fact put this before her employers at the relevant stage. There will have to be examination of what the Claimant meant by a grievance because she raises grievances and the question is going to be whether they were relevant grievances for the purposes of the race discrimination claim.

2. Disability

1. On the amendment for disability, again Mr Michell has shown, this time by reference to the appeal documents in the supplementary bundle before me, pages 9 and 10, that the issue was squarely raised internally and so that too will be the basis on which this case goes to a full hearing on the application to amend.

1. I will leave on one side a moment the disability claim. I then turn to the deposit. A deposit order was made in respect of the un-amended claim for unfair dismissal. The difficulty facing the Appellant is that this was the subject of representations at the hearing where the strike out was considered and was also the subject of a review which the Judge conducted on the papers and where he gave further consideration to the matter.

1. The summary assessment of a case as having little prospect of success is one which is vouchsafed to an Employment Judge by the rules. The Judge considered the weaknesses in the Claimant's case and it was for him to decide whether that summary approach should be applied in this case. I can see no matter he has overlooked and I can see no legal error in his decision to order a deposit. It was within his discretion to decide that a deposit order at the insistence of the Respondent should be made; the case has little prospect but it survived the death knell of a strike out where the test is no reasonable prospect. The Judge addressed the correct test and set out his factors in the decision and on review. There is no error in respect of that. As I pointed out, the relationship between a deposit order and the actual award of costs in a Tribunal is tenuous. At the moment the Claimant has not lost this case nor have costs been ordered, nor is it clear that there will be a relationship between the findings of the Tribunal and this assessment by the Judge.

1. It will be recalled that he was there dealing with the unfair dismissal and that order will stay in place irrespective of the fate of the other discrimination points. The appeal is sent to a full hearing on the two amendment points only.