The claimant lodged her ET1 making a money claim for loss of commission. She did not tick the box for discrimination. A couple of months later her representative wrote to say the claim included sex discrimination. At a PHR the amendment was refused and the claimant appealed.

The EAT allowed the appeal. What was missing from the Judge's reasons was the critical exercise of looking at all the relevant circumstances and balancing the injustice and hardship of allowing the amendment against the injustice and hardship of refusing it. The EAT disagreed with the argument that it was inherent in the Judge's reasons and conclusion that she had carried out that exercise and found that the balance favoured the respondent.
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Appeal No. UKEAT/0006/13/RN

EMPLOYMENT APPEAL TRIBUNAL

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

At the Tribunal

On 15 March 2013

Before

HIS HONOUR JUDGE PETER CLARK (SITTING ALONE)

THOMAS (APPELLANT)

SAMURAI INCENTIVES & PROMOTIONS LTD (RESPONDENT)

Transcript of Proceedings

JUDGMENT

For the Appellant
MR DANIEL BROWN (Representative)

A2emc Ltd
53 Aldin Way
Hinckley
LE1 0GE

For the Respondent
MR SIMON HARDING (of Counsel)

Instructed by:
Cubism Law
116-118 Chancery Lane
London
WC2A 1PP

PRACTICE AND PROCEDURE – Amendment

Amendment refused. Selkent principles not expressly applied. Appeal allowed. Amendment issue remitted to fresh Employment Tribunal for further consideration.

1. This case is proceeding in the Reading Employment Tribunal. The parties are Mrs Thomas, Claimant, and Samurai Incentives and Promotions Ltd, Respondent. The Claimant was employed by the Respondent between 1 June 2009 and her resignation effective on 31 December 2011 as an Accounts Manager of Sales. During her employment she took maternity leave.

1. In her claim form ET1, presented to the Tribunal as a litigant in person on 16 February 2012, she ticked as her claims, identified at section 5.1, a money claim and, "Other Complaints", she did not tick any discrimination claim. In her particulars of complaint at section 5.2 she referred to alleged unpaid commission and then said this:

"I requested an eye test voucher and childcare vouchers and my request was ignored. On many occasions they often said, 'We made a mistake employing women at Samurai as it is too much hassle when they get pregnant'. 'We should only employ unmarried woman or older women who don't want kids' When I took this job, Ian Kerr asked me if I was looking to have children."

1. At section 7 she added a complaint of unpaid basic salary and then said this:

"I feel I have been purposely (sic) mislead, discriminated because I am a woman and cheated of money owed to me. Working for Samurai has caused me much stress and I hope there is something you can do to help me."

1. On 20 March 2012, the Respondent entered a form ET3 in response, prepared by solicitors, which among other things under the heading, "Discrimination" said at paragraphs 18 to 20 and I summarise, the Claimant has not fully identified a claim of discrimination, but a claim for discrimination is denied and then gives some particulars in relation to those matters which I have raised in the form ET1.

1. On 27 March 2012 Employment Judge Salter caused a letter to be sent to the Claimant's then representative, Ms Jenny Andrews of A2emc Ltd in these terms:

"I have reviewed the case. Unless the Claimant indicates otherwise it will proceed as a claim for commission only … and not as a complaint of discrimination and will be allocated one day for hearing."

1. In response by a letter the following day, Ms Andrews wrote to say that the claim included not only commission payments, but also a claim that the Claimant was subject to sex discrimination from the outset of her employment until its termination and she indicated that further and better particulars of the sex discrimination case would be provided on or before 16 April 2012 unless the Tribunal ordered another date for that purpose.

1. On 6 June Ms Andrew provided further particulars of the sex discrimination complaint and a schedule of incidents, all of which were said to be incidents of harassment under what is now section 26 of the Equality Act 2010. The Respondent sought a strike out order and a Pre-hearing Review. Judge Griffiths on 11 June declined to make a strike out order and the letter directing a PHR raised a number of potential issues including whether the claim should be amended. The PHR took place before Employment Judge Hill on 25 October 2012. At that hearing Judge Hill considered whether the claim form required amendment to raise complaints of sexual harassment for the reasons which she gave in an order dated 29 October, she refused permission. At that same hearing she ordered the Claimant to pay a deposit of £750 in relation to what Judge Hill perceived to be a claim of sex discrimination limited to non-receipt of commission. For the avoidance of doubt that deposit order will stand since any such claim, if it ever was raised, has since been withdrawn by the Claimant.

1. In appealing the PHR amendment order, Mr Brown's principal submission on behalf of the Claimant, in line with the approach of Wood J (President) in Adams & Raynor v West Sussex County Council [1990] IRLR 215 para 16, is the proposition that in exercising her discretion to refuse permission to amend the Judge has failed to follow guiding legal principles; in this instance the so-called Selkent principles; see Selkent v Moore [1996] IRLR 661 paragraphs 18 to 24 per Mummery J (President).

1. In the present case I acknowledge of course that this matter came before a highly experienced employment judge, well used to dealing with such case management questions. Selkent is not an obscure authority. Indeed, it was expressly cited by Mr Harding in his written submissions placed before the Employment Judge at the PHR, a copy of which has been put before me today. The reasons given below consider the categorisation of the amendment. The Judge placed this in the Harvey category 3 case; that is raising a new cause of action unconnected to the original claim and the question of time limits. However, what is conspicuous by its absence from the reasons, as it was from Mr Harding's written submissions, is the critical exercise of looking at all the relevant circumstances and balancing the injustice and hardship of allowing the amendment against the injustice and hardship of refusing it. Whilst acknowledging its absence from the expressed Reasons Mr Harding submits that it is inherent in the Judge's reasons and conclusion that she has carried out that exercise and found that the balance favours the Respondent. I regret to say that I am unable to draw that inference. It seems to me that this omission is fatal to the reasoning and therefore the Judge's conclusion.

1. The question then arises as to what is to be done with this appeal. I agree with Mr Harding that if it is allowed, as in my judgment is must be, that the whole question of the amendment ought to return to the first instance Employment Tribunal rather than, as Mr Brown submitted, that I should deal with the matter here.

1. The question then is whether it should return to the same or a different Employment Judge. Without for a moment doubting the professionalism of the original Judge, I can see the perception from the Claimant's viewpoint if the Judge were to reach the same conclusion on a proper Selkent analysis upon remission. In these circumstances I have concluded that the amendment issue should be remitted to a different Employment Judge for determination. That Judge will look at the matter afresh including the proper categorisation of the proposed amendment which will be a matter that is open for argument at the next hearing.