Patka v BBC & Anor UKEAT/0190/17/DM

Appeal against a decision to allow the Claimant to amend his ET1 but only to a limited extent. Appeal dismissed.

The Claimant - acting in person - had put his case of race discriminatory unequal pay as a complaint of direct discrimination, albeit relying on general statistical evidence in support. After taking legal advice, he subsequently sought to amend: to add details about a subsequent decision on his internal grievance; to add a claim of indirect discrimination in the alternative; to include a further basis for his complaint of direct discrimination. The ET permitted the application to amend in respect of the internal grievance but only to the extent this was background information; it otherwise refused the amendments, concluding these were not simply different labels but added substantively new causes of action and arguments that had been raised too late (the parties had fully prepared their respective cases on the basis of the claim as already pleaded) and had already led to the postponement of the listed Full Merits Hearing; in the circumstances, the balance of prejudice supported the refusal of the application. The Claimant appealed.

The EAT dismissed the appeal. The ET permissibly understood the application to amend in respect of the internal grievance to have been limited to adding an update to the factual background; on this basis the Respondents had not objected to the amendment and it had been allowed. That was an entirely appropriate exercise of the ET's case management powers and there was no proper basis of challenge.

As for the indirect discrimination case, the ET was entitled to conclude this was not previously identified by the Claimant as part of his claim. Although the fact that it might still be in time was a potentially significant factor (Gillett v Bridge 86 Ltd , the ET had permissibly taken the view that whether or not there was a continuing act could only be determined at the final Merits Hearing. It was, moreover, open to the ET to conclude that the different issues raised by the indirect discrimination claim meant the balance weighed against hearing that together with the existing direct discrimination claim, in particular given the prejudice caused to the Respondents.

Similarly, the ET had been entitled to see the new argument raised in respect of the direct discrimination claim as giving rise to substantively new issues for determination such as to cause unfair prejudice if this amendment was permitted. To the extent the Claimant was only seeking to make this amendment to explain how he argued that the burden of proof shifted to the Respondent, that remained open to him given he had always made it clear he intended to rely on the statistical evidence to this purpose.

Published: 16/04/2018 10:39

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