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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Redhead v London Borough Of Hounslow (Practice and Procedure : Application or Claim) [2012] UKEAT 0409_11_0902 (09 February 2012) URL: http://www.bailii.org/uk/cases/UKEAT/2012/0409_11_0902.html Cite as: [2012] UKEAT 0409_11_0902, [2012] UKEAT 409_11_902 |
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EMPLOYMENT APPEAL TRIBUNAL
FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8JX
At the Tribunal
Before
MRS P REDHEAD APPELLANT
LONDON BOROUGH OF HOUNSLOW RESPONDENT
Transcript of Proceedings
JUDGMENT
APPEARANCES
MRS P REDHEAD (The Appellant in Person) |
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(of Counsel) Instructed by: Weightmans LLP Second Floor, 6 New Street Square New Fetter Lane London EC4A 3BF |
SUMMARY
PRACTICE AND PROCEDURE
Application/claim
Amendment
An Employment Tribunal Judge (ETJ) decided that: (1) an ET1 did NOT embrace claims of direct or indirect race discrimination and (2) the claim form ought not to be enlarged by amendment to introduce such claims.
Decision on (1) upheld. The ET1 raised only a claim of victimisation for making a protected disclosure.
Decision on (2) set aside and issue remitted to new ETJ. Both parties were agreed that ETJ had failed to apply the “balance of hardship” approach required by Selkent v Moore.
MR RECORDER LUBA QC
Introduction
1. This is an appeal from two case management decisions made by Employment Judge Sage sitting at the London South Employment Tribunal centre. By her first decision the Judge held that an ET1 claim form presented by the Claimant, Mrs Redhead, did not raise claims of race discrimination for determination by the Employment Tribunal Service. By her second decision the Employment Tribunal Judge refused permission to amend that claim so as to introduce claims of race discrimination. By way of her appeal the Claimant asserts that both decisions were made in error of law.
The facts
The Judge’s decisions
The appeal
The first decision: the scope of the first claim
13. Before me, in carefully considered and clearly expressed submissions, the Claimant, Mrs Redhead, has sought to develop her argument on this limb of the appeal in five broad ways. Firstly, she has taken me to the claim form ET1 itself in order to demonstrate that within it the term “race discrimination” is used on numerous occasions. In particular she relies on the reference to that term, or words to very similar effect, in the earlier paragraphs of the claim form; that is to say, paragraphs in particular running through from 1‑10. True it is that on consideration of that sequence of paragraphs one can find repeated reference to the words “discrimination” or “race discrimination”. From their presence Mrs Redhead invites me to understand that her complaint to the Employment Tribunal was about race discrimination. In response to that first of her propositions, I accept Mr Massarella’s submission that on a proper reading the references to discrimination and race discrimination in those paragraphs of the details of her complaint attached to her ET1 simply rehearse or describe the background to the grievances that she was articulating with her employer, and indeed the matters that she was drawing to the attention of the Chief Executive and the councillor, which were subject, she claimed, to protection under the Public Interest Disclosure Act. I accept Mr Massarella’s submission that they are descriptive of those matters and are not words from which I can deduce that the complaint to the Employment Tribunal was one of race discrimination.
14. Mrs Redhead’s second submission is that irrespective of whether the words used in the opening paragraphs are descriptive of historic background, the words of the later paragraphs of the ET1, and in particular paragraphs 46 and 47, make it clear that her assertion to the Employment Tribunal was that she had been the victim of “discriminatory acts”, and indeed that term is used in paragraph 46. She invites me to see those words, in the context of the whole content of the ET1 and in the context of the descriptive terms already referred to, as intimating a claim for direct or indirect racial discrimination. I am afraid I must also reject that submission, essentially for the reasons Mr Massarella gave in his response to them, namely that the term “discriminatory act” can and does embrace an act of racial discrimination by way of victimisation, which on an overall reading is what the ET1 claim form is complaining about.
15. As a third limb of her submissions on this part of the appeal Mrs Redhead relied on the fact that on the ET1 claim form she had ticked the entry at paragraph 5.1(b) so that it reads, “I was discriminated against on the grounds of […] race”. She has also ticked the entry at paragraph 5.1(e), “Other complaints”. She submits that that tick, taken together with the content of the details of complaint document attached to the ET1, is sufficient to intimate that this is a claim for direct or indirect racial discrimination. I cannot accept that submission either. As is made clear by the Employment Appeal Tribunal in the Baker Judgment to which I have already referred, the ticking of a box is but one feature of construing whether as a whole an ET1 form does or does not contain a complaint of a particular type. I have taken account of the tick when reviewing the Employment Tribunal Judge’s conclusion that overall no complaint of race discrimination was made either in the sense of direct or indirect race discrimination.
16. As a fourth element in her submissions Mrs Redhead relied on the fact that her employer’s response to the first claim form can be taken in part to acknowledge that she is complaining about race discrimination in the sense of direct or indirect racial discrimination. I am afraid that I took the view in relation to that submission that very little could be gleaned from subsequent documents or developments in construing the width or breadth of the original claim form. Moreover, as Mr Massarella pointed out in his reply, the grounds of resistance to the first claim open with a summary of what the employer understands the complaint to be about; that is to say, it refers at paragraphs 1.1 and 1.2 to the claim being about “victimisation” and “detriment”.
17. As a fifth element of her submission Mrs Redhead put forward the proposition that it was not fatal to a claim for direct and/or indirect discrimination that the express terms “direct race discrimination” or “indirect race discrimination” had not been used. She relied in particular on a decision of this Employment Appeal Tribunal in the case of Quarcoopome v Sock Shop Holdings Ltd [1995] IRLR 353. She submitted that that case was authority for the proposition that the simple mention of a form of discrimination by reference to race embraced any variant of racial discrimination covered by the Race Relations Act itself. As Mr Massarella submitted, and as I accept, if that ever was the law, it was overruled by the decision subsequently given by the Court of Appeal in the case of Ali v Office for National Statistics [2005] IRLR 201. That case, and the other authorities on the question of the scope of a claim made to the Employment Tribunal, are together reviewed and discussed in the Baker decision to which I have already made reference.
19. I have, having dealt with the five ways in which Mrs Redhead advanced her case on this part of the appeal before me today, to come back to the overarching question, and that is whether this Employment Tribunal Judge erred in law in reaching the conclusion that the first claim was not a claim for racial discrimination whether in the sense of direct or indirect race discrimination. I note that it was conceded by Mrs Redhead’s representative before Employment Judge Sage that, “direct and indirect race discrimination was not mentioned in the Claimant’s first ET1”. That concession was obviously correctly made; neither the term “direct race discrimination” nor the term “indirect race discrimination” is used, and nor is there language utilised in which one would normally find summarised, in lay person’s terms, a contention of that sort.
The second decision: whether to permit the amendment
22. In grounds 1, 2 and 4 of her grounds of appeal to this Employment Appeal Tribunal the Claimant attacks the second decision of the Employment Tribunal Judge; that is to say, to refuse an application to amend her claim so as to embrace a claim for direct race discrimination. On receipt of those grounds of appeal, by way of an Answer, the Council conceded that the Employment Tribunal Judge had indeed erred in law. It made common ground with the Claimant that the Employment Tribunal Judge had overlooked the need to apply the familiar balance of hardship test set out in the well‑known case of Selkent Bus Co Ltd v Moore [1996] IRLR 661. What both parties agree is that it fell to the Employment Tribunal Judge to identify the respective hardship that would follow for each of the parties depending upon the way in which she decided the application to amend. It was necessary for her to set out and identify the features that would render hardship to the Claimant if the amendment was not allowed. It was then necessary for her to identify and set out the hardship that the Respondent would experience if the amendment were allowed. It was then her duty to exercise her discretion on the application to amend by balancing that hardship. As I say, complaint of the failure to undertake that exercise is made in the grounds of appeal and is conceded by the Respondent.
Disposal
26. Mrs Redhead’s initial position in response to that was to invite me to determine the matter myself. I drew her attention to the fact that one consequence of my doing so would be that the decision would be made at the first step up the judicial staircase and that she would be deprived of an initial consideration by an Employment Judge with a possibility of appeal to this Appeal Tribunal if that Judge erred. In that way I discharged my responsibility to ensure that an unassisted, unrepresented litigant knew of the procedural consequences of the submissions they were making. Having consulted with those informally assisting her, Mrs Redhead decided then to take a neutral position as to whether I should decide the matter myself or remit it.
Addendum
28. This is a supplement to the Judgment I have just delivered on the outcome of the Claimant’s appeal. As intimated in that Judgment, the appeal will be allowed in respect of the Employment Tribunal Judge’s decision on the application to amend the claim and will be remitted to a different Judge of the Employment Tribunal. Mr Massarella, for the Respondent, asks me to make clear in my order precisely what is being remitted. What I am remitting is the application to amend to introduce the particulars contained in a document headed “Further and Better Particulars” presented by Mrs Redhead’s representative in April 2011. Mr Massarella submits that the only reference in that document to indirect race discrimination is contained in paragraph 12, and that the application to amend in respect of indirect discrimination was expressly abandoned by Mrs Redhead’s representative in the Employment Tribunal hearing before Judge Sage.
29. For her part Mrs Redhead candidly accepts that the application to amend to introduce indirect discrimination was abandoned by the person engaged to represent her and therefore she takes no issue with the fact that the Employment Tribunal Judge has recorded, both in the second sub‑paragraph of paragraph 15 and in paragraph 21 of her Judgment, that the Claimant no longer wished to amend the claim to introduce indirect race discrimination. Mrs Redhead, however, invites me to go behind the concession made by her representative on the basis that it was not made on, and was indeed contrary to, her instructions. However, she did not dismiss her representative in the course of that hearing, and there has been no application to this Employment Appeal Tribunal for the retraction of that concession. If she seeks a remedy in respect of the concession made without her authority, then it is a remedy to be sought against the person purporting to represent her. For the Respondent and the Employment Tribunal’s part it is plain that they were faced with a concession on the basis of which they were entitled to proceed.