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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Roberts v Chief Constable of Hampshire and Isle of Wight (Rev 1) (Practice and Procedure: Amendment) [2014] UKEAT 0254_14_1408 (14 August 2014) URL: https://www.bailii.org/uk/cases/UKEAT/2014/0254_14_1408.html Cite as: [2014] UKEAT 0254_14_1408, [2014] UKEAT 254_14_1408 |
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At the Tribunal | |
Before
HIS HONOUR JUDGE DAVID RICHARDSON
(SITTING ALONE)
APPELLANT | |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
Revised
For the Appellant | MISS ![]() ![]() ![]() ![]() (of Counsel) Instructed by: Pattinson & Brewer 14th Floor Colston Tower Colston Street Bristol BS1 4XE |
For the Respondent | MR GARY SELF (of Counsel) Instructed by: Hampshire County Council Legal Services EII Court South The Castle Winchester SO23 8UJ |
SUMMARY
PRACTICE AND PROCEDURE - Amendment
The Employment Judge, while identifying that the application for permission to amend should be determined according to Selkent principles, did not apply them in his reasons.
HIS HONOUR JUDGE DAVID RICHARDSON
The Background Facts
"I wish to appeal the decision made in respect of the Event Planning Constable Post (Winchester). I feel I have been unfairly treated and discriminated against because of my disability. Secondly I feel I have...also been the victim of sex discrimination. Being a female having had two recent periods of maternity level from December 2009 to February 2011 and then from July 2011 to August 2012 of course means that the time spent in my actual post is going to be significantly diminished when compared to others.
I wish for this matter to be fully reviewed and investigated."
"Further details to follow, but I have applied for a role within the force and was discriminated on the grounds that no reasonable adjustments were made in order for me to fulfil the role."
"The panel had therefore judged the standard/strength of my operational examples according to the standard they would expect of an officer with 11 years frontline experience/service. No consideration had been given to the fact that for long period[s] during those 11 years of service, I had been either absent from work on maternity leave, or unable to perform frontline duties, either due to pregnancy or disability."
"Further and in the alternative, the Claimant also claims discrimination on the ground of the protected characteristic of pregnancy and maternity, pursuant to section 18 of the EA 2010.
5. Further and in the alternative she claims sex discrimination pursuant to s13 or s19 of the EA 2010."
"22. Further and in the alternative, the Claimant contends that the Respondent's application of a criterion according to which candidates for the Initial Frontline Trainer post were expected to provide operational examples, whose standard would be judged in accordance with the candidates length of service, regardless of how much time that candidate had actually spent deployed on the front line, was unfavourable because of pregnancy and maternity.
23. As a protective measure, in the alternative the Claimant also claims that the treatment complained of was direct or indirect sex discrimination, and reserves the right to provide further particulars in due course."
The Employment Judge's Reasons
"9. This is not the wording that appears in the originating claim. The claimant has explained that the originating claim form was completed on her behalf by a representative of the Police Federation. She said that there was some pressure on her to present the claim form quickly because the fees scheme was about to be introduced at the end of July 2013. Her originating application was presented to the Tribunal on 26 July 2013. She had been told that if she delayed any longer then a fee would be payable.
10. An employer is entitled to know the nature of the claim they have to answer in the Employment Tribunal. With this in mind I have some difficulty in accepting MrsMallick's
proposition that it would be sufficient for a claimant to present an originating claim simply claiming discrimination, possibly by a reference to the Equality Act 2010, without specifying which of the nine protected acts of discrimination is pleaded by the claimant.
11. Applying the Selkent guidelines, I am satisfied that the amendment that the claimant seeks in relation to the various disability discrimination claims should be allowed. I reach that view because the claimant claims disability discrimination in the originating claim. I am satisfied that it is really a labelling issue, and for that reason I allow the amendment by adding the various forms of disability discrimination that the claimant claims.
12. I take a different view in relation to the application to add claims of direct and indirect sex discrimination and claims of pregnancy and maternity related discrimination. There is no reference to any of these matters in the originating claim. They have not previously been pleaded. The email sent by the claimant on 14 March 2013 showed that she was alert to the opportunity to make such claims."
The Law Relating to Amendment
"(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."
Submissions
Discussion and Conclusions
Disposal