The claimant sought to amend his claim the day before the unfair dismissal hearing was to begin. He applied to add claims of disability discrimination and protected disclosures. The ET refused to allow the amendment, on the basis that the claimant's witness statement contained no evidence of disability and in the absence of any evidence to support disability, the Tribunal was not satisfied that the claimant had any realistic case to put forward. The time delay was substantial and further substantial delay would be inevitable if the amendment was granted. The claimant appealed.

The EAT allowed the appeal. The ET had considered the evidence already exchanged but by definition, since these were new claims and not merely relabelling, the evidence was not directed to the new claim. The ET was wrong to include its assessment of the weakness of that claim in its exercise of discretion under Selkent.  In any event it was wrong to hold that the claimant had produced no such evidence, when he plainly had.  The Employment Tribunal did not cite the claimant's argument or consider prejudice to him.
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Appeal No. UKEAT/0132/12/DM

EMPLOYMENT APPEAL TRIBUNAL

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

At the Tribunal

On 26 April 2012

Before

HIS HONOUR JUDGE McMULLEN QC, MRS G MILLS CBE, MR S YEBOAH

MR P N WOODHOUSE (APPELLANT)

HAMPSHIRE HOSPITALS NHS TRUST (RESPONDENT)

Transcript of Proceedings

JUDGMENT

**APPEARANCES**

For the Appellant
MRS K WOODHOUSE (Representative)

For the Respondent
MR T CORDREY (of Counsel)

Instructed by:
Beachcroft LLP Solicitors
Portwall Place
Portwall Lane
Portwall
Bristol
BS99 7UD

**SUMMARY**

PRACTICE AND PROCEDURE - Amendment

The Employment Tribunal erred in refusing to allow a new claim (disability discrimination) by way of amendment when it considered the evidence already exchanged. By definition, since this was not a mere relabelling, the evidence was not directed to the new claim and so the Employment Tribunal was wrong to include its assessment of the weakness of that claim in its exercise of discretion under Selkent. In any event it was wrong to hold that the Claimant had produced no such evidence, when he plainly had. The Employment Tribunal did not cite the Claimant's argument or consider prejudice to him.

Remitted to the same Employment Tribunal to hear again now with an order for the Claimant to provide evidence on the disability claim.

**HIS HONOUR JUDGE McMULLEN QC**

1. This case is about Employment Tribunal procedure in refusing amendments to include a new claim under the Disability Discrimination Act and/or the Equality Act (EqA) and a claim under the Public Interest Disclosure Act (PIDA). It is the Judgment of the court to which all members appointed by statute for their diverse specialist experience have contributed. We will refer to the parties as the Claimant and the Respondent.

**Introduction**

1. It is an appeal by the Claimant in those proceedings against the decision of an Employment Tribunal chaired by Employment Judge Simpson heard at Southampton on 9 January 2012. The Claimant was represented by his wife, who is a non-practising solicitor, and the Respondent by Mr Thomas Cordrey of counsel, as today. The Claimant claimed unfair dismissal. The hearing was set up to commence for three days pursuant to a sequence of case management directions given in the region. The claim was finalised as being of actual and constructive unfair dismissal, notice and holiday pay pursuant to the order to Employment Judge Pirani at a hearing on 27 July 2011 at which the Claimant was represented by counsel. Counsel had indeed been involved in this case right up to 12 December 2011, when he was no longer instructed.

**The issue**

1. The issue in this case is the request for an amendment to add claims of disability and PIDA discrimination. The Employment Tribunal decided to reject the applications made on the day before the trial and advanced in oral submissions at the start of the hearing.

**EAT procedure**

1. Directions sending this to a full hearing were given by Langstaff P in the course of a number of orders he made for case management. His original opinion, which we are sure represented both a view under rule 3(7) as to certain parts of the appeal having no prospect of success, and a view that there was a reasonable prospect of success in respect of the amendment point for disability discrimination, was set up for this hearing. In fairness to Mrs Woodhouse, who had not seen the President's reasoning, time was given and options were discussed with her, but in the end the whole of the case that she came to present was available to be argued, and no unfairness has been caused to her. In effect, we have heard a much larger appeal than the President considered should go to a full hearing, and we have heard her on the points, although we have not invited Mr Cordrey to respond in respect of the PIDA bias points that the Claimant raises. In the preliminary orders made by the President careful time management directions were given, and this case should have been completed in half a day; in fact, it has run on, but that is to do justice to the arguments that have been raised before us.

**The facts**

1. The simple fact is that deep into the case and on the eve of battle two new points were sought to be raised. The Tribunal noted that the Claimant accepts that they were new claims, which are five allegations of disability discrimination and one PIDA claim. The disability claims were all out of time, between 8 and 15 months old. The duty under the respective parts of the legislation is to present a claim within three months, unless it was not reasonably practicable to do so, in which case a reasonable extension may be granted under the PIDA legislation. In respect of the disability legislation, whether the 1995 Act or the EqA, it is within three months or by extension when it is just and equitable to do so. The Tribunal noted on a number of occasions that the Claimant was represented by counsel experienced in these matters; not a trace of a disability arises in the claim form. The Tribunal dismissed the amendment to the PIDA claim, applying the rather more rigorous legislation under PIDA. The disability claims were refused, and these are the grounds:

"10. The disability claims are between 8-15 months out of time. In applying the just and equitable test the Tribunal has to balance prejudice to the Claimant in refusing the application against prejudice to the Respondent by allowing it. It also has to consider whether a fair trial can ensue.

11. Throughout the proceedings from April to December 2011 the Claimant was represented by experienced counsel and if there was a prima facie case the Tribunal would expect it to have been raised either during the course of proceedings or at the case management discussion. Time dims memories and the Respondent will be seriously prejudiced if it now has to investigate these new allegations so long after the events. Such disadvantage is likely to result in a fair trial not being possible.

12. The fact of disability is not admitted by the Respondent and so it is likely there will have to be a preliminary hearing to determine whether or not the Claimant is disabled within the meaning of the Equality Act 2010. This will involve obtaining medical evidence and the pleadings will have to be amended which will involve more delay.

13. Amendments to include new causes of action long after time limits have expired should be examined carefully. The Claimant's 142 page witness statement contains no evidence of disability and as Counsel for the Respondent observed paragraph 676 of the statement contends there were never any health issues connected with the Claimant's job performance. In the absence of any evidence to support disability the Tribunal is not satisfied the Claimant has any realistic case to put forward. The time delay is substantial and further substantial delay will be inevitably if amendment is granted."

1. The Claimant appeals against that.

**The Claimant's case**

1. The Claimant contends that the Tribunal gave the appearance of bias in the decision that it made, and Mrs Woodhouse contends that the treatment of her was uneven as between her and counsel. As to the claims, the Tribunal went into the merits of the disability claim, and the Tribunal got wrong its depiction of the evidence that was before it relating to the Claimant's disability by way of Parkinson's disease. As to PIDA, it was contended that the timescale was one such as there should be the extension of time under the provisions of the statute.

**The Respondent's case**

1. As to the disability claim, it is contended that the Tribunal reached the correct conclusion. It addressed the relevant principles, and if it did not, then at least the decision is unarguably right.

**The legal principles**

1. The legal principles are not in doubt; they are found in the Judgment of the EAT, Mummery P presiding, in Selkent Bus Co Ltd v Moore [1996] UKEAT/0151/96, which are as follow:

"Procedure and Practice for Amendments

The rival submissions of the parties state the position at opposite extremes. Before we state our conclusions on this appeal, it may he helpful to summarise our understanding of the procedure and practice governing amendments in the Industrial Tribunal.

(1) The discretion of a Tribunal to regulate its procedure includes a discretion to grant leave for the amendment of the originating application and/or notice of appearance: Regulation 13. See Cocking v Sandhurst Ltd [1974] ICR 650 at 656G - 657D. That discretion is usually exercised on application to a Chairman alone prior to the substantive hearing by the Tribunal.

(2) There is no express obligation in the Industrial Tribunal Rules of Procedure requiring a Tribunal (or the Chairman of a Tribunal) to seek or consider written or oral representations from each side before deciding whether to grant or refuse an application for leave to amend. It is, however, common ground that the discretion to grant leave is a judicial discretion to be exercised in a judicial manner ie, in a manner which satisfies the requirements of relevance, reason, justice and fairness inherent in all judicial discretions.

(3) Consistently with those principles, a Chairman or a Tribunal may exercise the discretion on an application for leave to amend in a number of ways:

(a) It may be a proper exercise of discretion to refuse an application for leave to amend without seeking or considering representations from the other side. For example, it may be obvious on the face of the application and/or in the circumstances in which it is made that it is hopeless and should be refused. If the Tribunal forms that view that is the end of the matter, subject to any appeal. On an appeal from such a refusal, the appellant would have a heavy burden to discharge. He would have to convince the Appeal Tribunal that the Industrial Tribunal had erred in legal principle in the exercise of the discretion, or had failed to take into account relevant considerations or had taken irrelevant factors into account, or that no reasonable Tribunal, properly directing itself, could have refused the amendment. See Adams v West Sussex County Council [1990] ICR 546.

(b) If, however, the amendment sought is arguable and is one of substance which the Tribunal considers could reasonably be opposed by the other side, the Tribunal may then ask the other party whether they consent to the amendment or whether they oppose it and, if they oppose it, to state the grounds of opposition. In those cases the Tribunal would make a decision on the question of amendment after hearing both sides. The party disappointed with the result might then appeal to this Tribunal on one or more of the limited grounds mentioned in (a) above.

(c) In other cases an Industrial Tribunal may reasonably take the view that the proposed amendment is not sufficiently substantial or controversial to justify seeking representations from the other side and may order the amendment ex parte without doing so. If that course is adopted and the other side then objects, the Industrial Tribunal should consider those objections and decide whether to affirm, rescind or vary the order which has been made. The disappointed party may then appeal to this Tribunal on one or more of the limited grounds mentioned in (b) above.

(4) Whenever the discretion to grant an amendment is invoked, the Tribunal should take into account all the circumstances and should balance the injustice and hardship of allowing the amendment against the injustice and hardship of refusing it.

(5) What are the relevant circumstances? It is impossible and undesirable to attempt to list them exhaustively, but the following are certainly relevant:

(a) The nature of the amendment

Applications to amend are of many different kinds, ranging, on the one hand, from the correction of clerical and typing errors, the additions of factual details to existing allegations and the addition or substitution of other labels for facts already pleaded to, on the other hand, the making of entirely new factual allegations which change the basis of the existing claim. The Tribunal have to decide whether the amendment sought is one of the minor matters or is a substantial alteration pleading a new cause of action.

(b) The applicability of time limits

If a new complaint or cause of action is proposed to be added by way of amendment, it is essential for the Tribunal to consider whether that complaint is out of time and, if so, whether the time limit should be extended under the applicable statutory provisions eg, in the case of unfair dismissal, S.67 of the 1978 Act.

(c) The timing and manner of the application

An application should not be refused solely because there has been a delay in making it. There are no time limits laid down in the Rules for the making of amendments. The amendments may be made at any time - before, at, even after the hearing of the case. Delay in making the application is, however, a discretionary factor. It is relevant to consider why the application was not made earlier and why it is now being made: for example, the discovery of new facts or new information appearing from documents disclosed on discovery. Whenever taking any factors into account, the paramount considerations are the relative injustice and hardship involved in refusing or granting an amendment. Questions of delay, as a result of adjournments, and additional costs, particularly if they are unlikely to be recovered by the successful party, are relevant in reaching a decision."

1. It is also worth noting that under the conclusion following the principles and applying that to the facts of the case, Mummery P said as follows:

"(4) In our view, the risk of hardship is, on balance, greater if the amendment is granted than if it is refused. As the new allegations were made late, it must have been foreseeable by Mr Moore or those advising him that an adjournment would be requested and would probably have to be granted. That increases costs, which will probably not be recovered, even if ordered. Further costs are likely to be incurred if the amendment is made, because the nature of the allegation will add to the length of the hearing, even perhaps to the number of witnesses, without necessarily affecting the result or conferring any additional benefit on Mr Moore."

1. As to the right of an appellate court to interfere with an exercise of discretion, it is clear that this will be rarely exercised; it is a sparingly used power (see the Judgment of Longmore LJ in Chief Constable of Lincolnshire Police v Caston [2009] EWCA Civ 1298 and the Judgment of the Court of Appeal in Noorani v Merseyside TEC .

**Discussion and conclusions**

1. We accept the force of Mrs Woodhouse's case and prefer her argument to that of Mr Cordrey. The allegation of bias is hopeless. It is sadly and frequently made in our jurisdiction for no worthy purpose. The fact that a solicitor, albeit the wife of the Claimant and not practising, is against an experienced counsel happens quite often; there is no real disparity. We see nothing in the allegations against the Employment Judge nor anything to indicate why the lay members would sit idly by while biased or unfair treatment was meted out. As to the PIDA claim, this too is hopeless. The jurisdiction is different. The amendment is regulated by what is reasonably practicable. It cannot be said it was not reasonably practicable to put this case.

1. Turning, then, to the disability issue, the Claimant was represented by counsel throughout. That is an important factor, but once it is described it does require an explanation as to why at a certain stage the amendment suddenly cropped up. The Tribunal's view is that if there were a prima facie case, it would have expected it to have been raised by counsel at an earlier stage. That is a judgement on the merits; in other words, it is criticising the Claimant for opportunism and not advancing a case that is strong. After all, if he had a good case, it would have occurred to him earlier, particularly, as Mr Cordrey points out, as he is a nurse. The other points the Tribunal makes are correctly analysed by Mr Cordrey; there are some seven factors in the passages we have cited. The delay is important because a delay may make a fair trial impossible, as contended here.

1. The Tribunal also considered the fact of disability being not admitted. Mr Cordrey of course explained to us why that occurred; this matter suddenly popping up on the day of the trial, he had no chance to take instructions and for the Respondent to prepare its case on disability. One does not know what its position would be if the amendment were made, but until it is, nobody has to address the question of disability under the statute. Until it is made, it is difficult to criticise or to take account of the fact except as part of a delay when there may be a contest as to disability. Generally speaking, those factors that fall within paragraphs 10 and 11 are all matters for an Employment Tribunal save for the reflection that the case may not be a good one, otherwise it would have been spotted earlier.

1. We have difficulty with paragraph 13. It is true that in the assessment of the balance of hardship and the balance of prejudice there may in all the circumstances include an examination of the merits - in other words, there is no point in allowing an amendment to add an utterly hopeless case. But otherwise it should be assumed that the case is arguable, for this is what Mummery P said in describing what Tribunal practice should be when an application is made: where the matter is arguable and of substance, there should be representations by the parties.

1. In this case, instead of it being dealt with by a Judge under rule 10, the matter was dealt with by the Tribunal convened to hear the case. We asked Mr Cordrey for authority that says that there should be an examination of the merits, and he was unable to point us to any except the reflection that all the circumstances should be considered in the exercise of discretion. In our judgement, paragraph 13 involves the Tribunal in consideration of an irrelevant matter. This is to examine the strength of the evidence that supports the now new allegations under the disability statute. It is axiomatic that if the point is a new point, evidence to that point needs to be adduced, so that examining the material thus far adduced to support the constructive dismissal case will only take the Tribunal so far. Once the Claimant wants to advance a disability claim, he has to assert and draw attention to various matters that support his case that he is disabled and has the three conditions necessary for that to survive. Until the matter is allowed into the case it is strictly irrelevant material.

1. The defect also with this approach is that the Tribunal has not examined with as much care as it ought if it were to engage in this exercise the witness statement of the Claimant. We accept Mrs Woodhouse's very detailed analysis said to be advanced under the ground of perversity that the Tribunal is simply wrong when it finds that there was no evidence of disability and that on that basis there was no realistic prospect of success. The references she gave us in her careful written argument are made out; there are many places where the Claimant himself refers to documents in which Parkinson's and other conditions, including the fit certificates, are adduced. In our judgement, it cannot be said that there is no evidence of disability in the papers he had adduced until the application was made. The trigger, apparently, for the change of approach by the Woodhouses, who reflected carefully upon this matter together, was the receipt of the Respondent's evidence, in which the Claimant can see how the Respondent regarded him, and on the basis of that the Woodhouses decided to seek an amendment on the basis of that amongst other matters; they were by this stage on their own, not with the help of counsel.

1. In our judgement, the Tribunal has paid attention to an irrelevant factor, which is an investigation into the evidence of disability at a stage when there was no claim of disability. Of course, with more time Mr Woodhouse should have put forward evidence to support his amendment so that he would be moving into the trial with his own evidence, but in our judgement there has been an analysis of the evidence which was not appropriate at this stage.

1. In any event if that is a powerful conclusion, it is perverse, for there is indeed evidence of disability. We do not accept the submission of Mr Cordrey that all the Tribunal is doing here is reflecting on the length of time that it would take to get the case on. He contends that on its ordinary reading this is a reflection on delay; we respectfully disagree. The Tribunal could not be more positive in its assessment of the Claimant's case.

1. The question then is, given that the Tribunal was correct in a number of the factors that it considered but wrong in respect of at least paragraph 13 and, we dare say, in the early part of paragraph 12, is the decision plainly and unarguably right? We cannot say that it is. The Tribunal was quite substantially affected by its view of the merits, and its view of Mr Woodhouse's counsel's view of the merits and of his wife's. It is put perhaps rather bluntly, if there were a good case, why had that team not realised it earlier and put it in? It cannot be said that the Judgment should stand. We know how difficult it is for an appellate court to interfere with a matter of discretion, but where irrelevant factors have been considered or a factor that may be relevant but contains plainly wrong citations cannot stand.

1. We were invited by the parties to either decide the matter ourselves, or if we did not have the material, then to send it to a Tribunal. We will take the latter course. The exercise of discretion is for a Tribunal. There are difficulties in our way, and we do not have enough material for us to make the decision ourselves, so this case will go back Employment Judge Simpson or a different Judge, and it may be that constitution of the Tribunal, depending on how this matter is most practically to be organised by the Regional Employment Judge. We have confidence in the Employment Tribunal, if it is to be constituted as it was before, or in Employment Judge Simpson to make the decision on the amendment in the light of what factors must properly be considered.

1. Review of the President's order is not pursued, in the light of the events during the day. The appeal is allowed.