Appeal No. EAT/1332/01

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 6 March 2002

Before
HIS HONOUR JUDGE J McMULLEN QC
MR D CHADWICK
MR N D WILLIS

MS C NAYLOR	APPELLANT

THE RENT SERVICE	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING 

Revised

	APPEARANCES

For the Appellant	MR JAMES KEEGAN
UNISON Officer	

JUDGE J McMULLEN QC

1	This appeal arises out of a Decision made by a Liverpool Tribunal chaired by Mr D Reed, sent to parties on 19 September 2001.  That was subjected to an application for review on behalf of the Applicant.  The substantive Decision was in two parts:  the Applicant’s claim of unlawful discrimination on the ground of sex or race was dismissed, the claim for race discrimination having been withdrawn, and the Tribunal refused leave to amend her Originating Application to claim indirect discrimination.  

2	That latter Decision was the subject of an application for review which was determined by Mr Reed in his capacity as the Chairman of that Tribunal, in a Decision sent to the parties on 10 October 2001.  He had before him the application for review which is in almost identical terms to the application for appeal, as it is put, to the EAT.  Thus it is that we have considerable assistance in deciding this matter from the Decision on review, since the Chairman considered the points which are put to us.  

3	The submission to us is that the Tribunal should have allowed the Applicant’s application for permission to amend her Originating Application.  A claim had originally been brought by the Applicant, who had been denied a position in the Rent Service, since she compared herself with Mr Leonard, a successful candidate.  The claim was unequivocally one of direct discrimination, and indeed, the Respondent was led to believe, in express terms, that the claim was solely one of direct discrimination, for on 29 August 2001, the Applicant’s representative, Mr Keegan, caused a letter to be written to the Respondent saying:
“As regards indirect discrimination then I can confirm that the Applicants case is as set out in her IT1 Originating Application and this relates to direct Sex Discrimination when comparing her treatment to that of Mr Leonard”

It was added in that letter:
“The witness statements are still awaited from you.”

4	As it happened, the Order of the Tribunal to serve witness statements, seven days in advance of the hearing, had been complied with by the Respondent, and so on 29 August 2001, the witness statements were, in fact, in the Unison office, although because of holidays and other commitments, there were not read by Mr Keegan before he caused the letter to be sent and, indeed, the witness statements were not read until 30 or 31 August 2001.  

5	Upon reading them, it immediately occurred to Mr Keegan that the Applicant had a claim for indirect sex discrimination, based upon a policy which, it emerged from the witness statements, the Respondent applied to temporary rent officers in post, and which was a different policy from pure merit, which the Applicant had been led to believe was the system in place.  She, of course, had passed out very highly on merit, being number one in the list, and was entitled to be considered for a position within the ensuing eighteen months. 

6	So it was that the Applicant’s representative at the opening of the case on 3 September 2001, sought leave to include a claim based upon indirect discrimination.  As he engagingly told the Tribunal, it was not perhaps necessary to do so, because he had already made the claim on her behalf in the Originating Application.  The Originating Application, completed by the Applicant herself, cites at box 1 “Sexual and/or racial discrimination” as the type of complaint she brings, and in box 11, giving details, specifies what is, unarguably, a direct discrimination claim.  She also supplied supplementary notes in twenty eight paragraphs, setting out the details upon which her claim was based.  It is common ground that that claim is of direct discrimination.  

7	What is argued is that the claim includes all claims under the Sex Discrimination Act, and for that, authority is provided in Quarcoopome -v- Sock Shop Holdings Ltd [1995] IRLR 353 EAT, in which Buckley J said:
“We therefore conclude that the application to amend or to particularise, whichever it was, was not time barred; and the test that the tribunal should have applied at the very highest, and this is on the basis that it was an application to amend rather than just to particularise, was to see whether any hardship or prejudice would be incurred by the respondents sufficient to justify rejecting the application and, in answering that question, of course, the tribunal would have in mind that if they reject the application they are, in effect, shutting out a claim which the applicant wishes to make.  That is a very strong action to take and one which we would imagine tribunals would be very slow to adopt.”

As in this case, the Applicant having failed on her direct discrimination claim, was shut out from her indirect discrimination claim.  

8	The principle holding is at paragraph 12:
“…An originating application that makes a claim, as this one did, for race discrimination, in our view incorporates any claim for race discrimination, whether it be under 1(1)(a) or (b) or s.2, discrimination by way of victimisation, or any other claim that may be made on the grounds of race under that Act.  The fact that there are different sections and different ways that people can discriminate cannot, in our view, detract from that and one of the cases to which we have been referred turn us away from that view.  Indeed, they support us in it.”

Mr Keegan, therefore, relies on recent authority of the EAT for the proposition that, in the Originating Application of his member, simply to say, as she did, sexual discrimination includes a right to raise claims of direct and indirect discrimination. We consider that that submission is well founded.  The issue in this case is likely to be whether that position, based on authority, is affected by an express disavowal made by a representative to the other side, of a claim of indirect discrimination, and further, whether such disavowal, if made without full knowledge of the witness statements, should bind the representative and the Applicant.  That, we consider, is a reasonably arguable legal issue which should go forward to a full hearing.  

9	The Employment Tribunal considered the arguments raised and heard evidence from Mr Keegan and it is telling, in our view, that the Tribunal makes the comment that it would have allowed the application to, as it is properly described in Quarcoopome, particularise the claim already made, since at paragraph 9 the Tribunal says:
“Certainly, had the application been made at a much earlier stage, it would have been irresistible; the respondents were not in a position to suggest, for example, that memories had faded or documents been destroyed.  In other words, the balance of convenience would clearly have favoured the applicant.”

Inconvenience there would have been to the Respondent, but not irreparable, and any additional costs incurred would have been the subject of an application and could have been remedied by an Order if the Tribunal were so minded.  

10	It is also submitted that the Tribunal took the wrong legal test in paragraph 8 of its Decision, where it says:
“In those circumstances, we took the view that it was not just and equitable to permit an amendment at this very late stage.”
It is submitted that that test is applicable to the raising of a new claim and is applicable where the claim may be out of time, as was made clear in Quarcoopome, Since this is not a new claim, but a particularisation, then the just and equitable approach for dealing with out of time applications would appear to be incorrect.  

11	In those circumstances we consider that there is a reasonably arguable case for the Applicant to go forward to a full hearing of the EAT on the Decision of the Tribunal to refuse to allow her claim for indirect discrimination.  We say nothing about the merits of that claim, which have only been indicated in the briefest form to us, and for these purposes, it is not necessary for us to descend into any discussion of those merits in dealing with the matter as one of procedure.  
This case, therefore, can be listed in Category C, time estimate two hours.