Appeal No. UKEAT/0409/11/MAA

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

		At the Tribunal
		On 9 February 2012

Before
MR RECORDER LUBA QC
(SITTING ALONE)

MRS P REDHEAD	APPELLANT

LONDON BOROUGH OF HOUNSLOW	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MRS P REDHEAD
(The Appellant in Person)	
For the Respondent
	MR DAVID MASSARELLA
(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
2.	As these are essentially case management decisions in respect of a case not yet heard on its merits, I shall set out the factual background only in brief summary form.  The Claimant is a black African Caribbean woman who was from 2005 until late 2010 employed by the Respondent Council as the Education Development Manager for looked‑after children.  In May 2009 she had presented a grievance to her employer complaining of racial discrimination and victimisation by the Assistant Director of the Council’s Children’s Services department.  That grievance was followed by the presentation of further such complaints and particulars of them respectively in July and August 2009.

3.	In September 2009 the employers decided that the grievance was not upheld.  The Claimant appealed from that decision, but in December 2009 an appeal hearing affirmed the decision that the grievances were not upheld.  Whilst the matter of the grievance appeal was outstanding, the Claimant brought her concerns of discrimination to the attention of the Council’s Chief Executive Officer and the lead member for Education by letter.  These letters were said by her to amount to a protected disclosure within the meaning of the Public Interest Disclosure Act 1998.

4.	The Claimant was away from work from May 2009 until January 2010; that is to say, whilst most of the developments I have just summarised were taking place.  On the day of her return to work in January 2010 she was given an instruction to leave the workplace pending the holding of a return‑to‑work meeting.  She did not leave immediately, and her alleged refusal to comply with that instruction led to the institution of disciplinary proceedings.  They culminated in a written warning and an appeal against the making of that sanction.

5.	In July 2010, whilst still employed by the Respondent, the Claimant presented a claim in the form ET1 to the Employment Tribunal Service; I shall call that “the first claim”.  That claim was reviewed at a case management discussion held before Employment Judge Balogun in October 2010, and the case was then fixed for a six‑day hearing on the merits to take place in May 2011.  However, before that prospective hearing there were further developments.  In November 2010 the Claimant resigned, and in February 2011 she made a complaint to the Employment Tribunal of constructive, unfair and wrongful dismissal; I shall call that “the second claim”.  By a procedural order made in March 2011 the two claims were consolidated.

6.	The next development was that in April 2011 a new representative instructed by the Claimant, Mr Chandrasekhar of counsel, submitted to the Employment Tribunal and to the Respondent’s solicitors a document entitled “Further and Better Particulars”.  This set out certain factual assertions at paragraphs 1‑10, and at paragraph 11 set out 16 matters said to have been instances of direct racial discrimination.  Paragraph 12 contained an assertion of indirect racial discrimination.

7.	The hearing that had been fixed for the consideration of the consolidated claim on its merits in May 2011 was postponed.  Instead, on 3 May 2011 Employment Judge Sage conducted a further case management discussion.  On its conclusion she made the two decisions identified at the start of this Judgment.  The Judge gave her reasons in a written Judgment that was sent to the parties later in May 2011.  She also gave further consequential directions, about which I need say nothing further.

The Judge’s decisions
8.	The Judge was invited to rule on whether the first claim had embraced claims of direct or indirect racial discrimination, or whether those issues were outside the scope of the first claim.  Her Judgment sets out a summary of the submissions made to her by counsel for both parties.  At paragraph 13 of her Judgment the Judge states that the ET1 for the first claim made no mention of any claim for direct or indirect racial discrimination, and that accordingly the April 2011 document did not amount to the giving of further and better particulars of any such extant claim.  The Employment Tribunal Judge was next invited to treat the April 2011 document as an application to amend the consolidated claim to introduce claims of direct and indirect race discrimination.  In the event, no amendment was pressed in relation to indirect discrimination, and the application became one to include a claim of direct race discrimination.

9.	In her Judgment the Employment Tribunal Judge again set out the competing submissions of counsel for each party on that application to amend, and at paragraph 21 delivers her decision that the application to amend ought not to be allowed; paragraph 21 also includes her brief reasons for that decision.

The appeal
10.	In order to succeed in her appeal the Claimant must establish that the Employment Tribunal Judge erred in law in the making of her two decisions.  These decisions were, as I have already indicated, essentially case management decisions.  I shall consider the appeal in relation to each of the two decisions in turn.

The first decision: the scope of the first claim
11.	The question for the Employment Tribunal Judge was a pure question of fact; that is to say, whether or not the first claim made in form ET1 contained or did not contain a claim of direct race discrimination or indirect race discrimination.  That the question arises in that way and is of that nature is made clear by a sequence of authorities helpfully gathered in the earlier Judgment of this Employment Appeal Tribunal, delivered by Slade J on 5 February 2010, in the case of Baker v The Commissioner of Police for the Metropolis UKEAT/0201/09.

12.	The ground of appeal in relation to the Employment Tribunal Judge’s first decision is ground 3 of the grounds of appeal before me, and it is expressed in these terms; that is to say, that the Employment Tribunal Judge, “omitted significant details that were claims in my ET1 of 6th July 2010”.  As expanded in the skeleton argument of the Claimant, this really amounts to a contention that the Employment Tribunal Judge’s finding that claims of race discrimination, whether direct or indirect, were not made in the first claim form were findings that were not reasonably open to her, and that her conclusion was perverse.

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.

18.	It may certainly be unnecessary to refer to a specific section or subsection of the Race Relations Act in the context of a claim form that already in plain language asserts an act of racial discrimination or gives sufficient particulars from which one can spell out a case or claim of direct race discrimination or indirect race discrimination, or both, but that is not this case.  In my judgment, Mr Massarella was right to submit that when one considers the claim form utilised in this case and submitted by the Claimant, there is none of the usual language that one would expect to find.  For example, in the case of direct racial discrimination one would expect to find words asserting that a particular individual had been treated less favourably on account of their race, ethnicity or nationality.  One might expect to find a comparison referred to, such as, “I was treated this way because I am black”, or, “I was treated unfavourably compared to a person who was white”.  There is nothing of that nature in this claim form.  The position is even more clear in relation to indirect race discrimination, where there is no allegation at all in the claim form that the employers applied a provision, criterion or practice to the Claimant that disadvantaged her or other employees of her race.

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.

20.	Indeed, it is right to observe that the Employment Tribunal Judge was analysing an ET1 form prepared with professional advice.  The attachment to the form ET1, which bears the heading “Details of Complaint”, has manifestly been carefully and precisely drawn.  It provides the particulars of the exact nature of the complaint being made to the Employment Tribunal.  For each such specific complaint of adverse treatment by the Respondent it gives a short summary of the factual matters followed by a standard rubric in these terms: “The Claimant contends that the decision […] amounted to an act of victimisation and/or detriment on the ground that she had made a protected disclosure”.  That rubric is repetitively used throughout the body of the “Details of Complaint” by reference to each of the factual matters asserted.  With respect to the Claimant, whatever may have been intended by her or her representatives in the drawing of the claim form, the reader of the claim form that was actually presented in the way it was presented is left with the clear message that her claim to the Employment Tribunal Service is one of multiple instances of victimisation and/or detriment for having made protected disclosures.

21.	The Employment Tribunal Judge’s conclusion that no claim of direct or indirect race discrimination was made or could be implied or inferred from the first claim form is in my judgment one that discloses no error of law whatsoever.  The conclusion that the Employment Tribunal Judge came to was plainly open to her on a full consideration of the terms of the first claim form.  I am quite satisfied that the Employment Tribunal Judge gave that claim form such consideration.  Indeed, had the contrary conclusion been reached on a construction of the original claim form, that would on the facts have been, in my judgment, somewhat surprising.

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.

23.	In those circumstances, I need say nothing more about the Employment Judge’s exercise of discretion, since it is common ground that it was based on an erroneous approach in law.  I will therefore allow the appeal to the extent of setting aside the second decision of the Employment Tribunal Judge.

Disposal
24.	The question then arises as to what should happen to the application to amend.  More explicitly, should that question be remitted to a new Judge of the Employment Tribunal, or should I determine it afresh for myself in this jurisdiction?

25.	Mr Massarella, for the Council, urges that this is not a case suitable for the appeal Judge to determine de novo.  He submits that the Employment Tribunal Judge’s Judgment contains insufficiently clear findings of fact, as to the impact on each party of the alternative outcomes of the application, for me to safely exercise my discretion on that matter.  Moreover, he submits that the breadth of the facts in issue is such that it would not be right to embark upon that exercise at this appeal level.  He accordingly invites me to remit.

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.

27.	In the face of the Council’s submissions in favour of remission and in light of the neutral position taken by the Claimant, and having regard to all the other features of this case, I have decided that the proper course is to remit the question of an amendment to a fresh Employment Tribunal Judge to determine on the facts and matters as they appear to that Judge.  My order will be that the appeal is dismissed in respect of the Employment Tribunal Judge’s Judgment on the scope of the first claim, but that the appeal is allowed in respect of the Employment Tribunal Judge’s decision on the application to amend.  I will remit a decision on the application to amend to a different Judge of the Employment Tribunal Service.

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.

30.	I might have been more inclined to remit the matter in respect of indirect discrimination had it been one in respect of which there was a clear and explicit pleading and particularisation, and if it reflected an earlier way in which the case for the Claimant had been articulated or intimated, but in the event the proposed paragraph 12 of further particulars raises a wholly new and qualitatively different issue from that raised by the claim for direct race discrimination and contains wholly insufficient particulars.  For all those reasons I am satisfied that it is only appropriate to remit for determination by an Employment Tribunal Judge the application to introduce a claim of direct racial discrimination.  My order will therefore provide that what is remitted to the Employment Tribunal Judge is an application to amend the first claim form to introduce a complaint or claim of direct racial discrimination.