Office for National Statistics v Abowork Ali

Introduction

This appeal concerns the proper approach to an application for leave to amend an originating application before the Employment Tribunal. I suspect that we have been engaged on a sterile exercise. The question is whether the tribunal considering the application should "take into account all the circumstances and . . . balance the injustice and hardship of allowing the amendment against the injustice and hardship of refusing it" or whether the tribunal should consider "in all the circumstances of the case it considers that it is just and equitable to (allow the amendment)". The "just and equitable" language is taken from s.68 (6) of the Race Relations Act 1976 and applies if the amendment constituted a new claim. The language "balancing the injustice and hardship" is taken from the decision of the Employment Appeal Tribunal Selkent Bus Co Ltd T/A Stagecoach Selkent v Moore [1996] IRLR 661. It was in Selkent in a judgment of Mummery J, the then president of the EAT, that general guidance was given to employment tribunals in relation to amendments.

In the judgment of Mummery J, giving general guidance, the full quotation is as follows:-

"(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 alternation 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 . . ."

It is of some interest that Mummery J contemplated that the general overriding test involved the balance of injustice and hardship and that the applicability of time limits was just one aspect of the more general test.

Perhaps even more pertinent is a paragraph in a judgment of Charles J, giving the judgment of the Employment Appeal Tribunal in Smith v Zeneca(Agrochemicals) Ltd [2000] ICR 800, which analysed in detail all the relevant authorities where he said, at paragraph 59:-

"We add that it seems to us in a case like this one, where, on the approach to the ambit of the originating application set out in paragraph 58 hereof, a complaint or basis of claim was not included in the originating application, but related to an act or acts within three months from the presentation of the originating application, it is probably unlikely that there would be different outcomes to the issue whether it should be added to and included in the complaints to be dealt with by the Employment Tribunal:

(i) on the approach set out in paragraph 58, which, as appears from paragraph 58(f), includes a consideration of the statutory time limit in s.76 of the Sex Discrimination Act 1975, and thus a consideration of whether it would be just and equitable in all the circumstances to allow the introduction of the new and additionally alleged act of discrimination, and

(ii) on an application of Quarcoopome v Sockshop Holdings Ltd [1995] IRLR 353, which, although it treats the complaint as being within the ambit of the originating application, involves (as we have explained) a consideration of whether all the circumstances including the balance of hardship and injustice (and thus fairness) points to the addition of the new and additional alleged act of discrimination."

As will appear, we are concerned in this case with an originating application which was issued within three months of the relevant event, i.e. the refusal to employ the appellant. That originating application alleged direct racial discrimination and even though there is argument about whether it included some aspects of indirect racial discrimination did not allege the indirect discrimination which the appellant now wishes to rely on. That is unsurprising because the appellant did not know, at the time that the originating application was issued, of the conduct on which he wished to rely for making his assertion of indirect discrimination. I shall spell out in a little detail the circumstances in which the application to amend came to be made, but it seems to me almost inconceivable that the decision of the Employment Tribunal, as to whether to give leave, could depend on whether the test to be applied was whether in all the circumstances it was "just and equitable" or whether the test involved "balancing injustice and hardship". That being so, I intend to try and take matters quite shortly but am aware that I may fail in that aim.

The Facts

By his originating application dated 22 ^nd April 2000, the appellant completed certain spaces on the form. Box 1 told the appellant to give the type of complaint that he wanted the tribunal to decide "for example, unfair dismissal, equal pay . . ." and his response was "Whether I have been victimised and discriminated against on racial grounds contrary to the 1976 RRA".

Under the box requiring him to give details of his complaint he produced a separate sheet. He set out his qualifications and a history of applications that he had made for the post. In paragraphs 3–7 he said:-

"(3) I always knew and thought they do not hire blacks. This suspicion of mine was firmly established when I read their recruitment statistics, which effectively excluded blacks.

(4) In September 1998 I attended an interview for a senior survey methodologist post, which is based at the social survey division.

(5) At this interview the Chairman, a representative from Personnel, asked me why I keep on applying to their organisation?

(6) I answered that I am trained in survey methodology, I had worked in this field in UK as well as overseas. I told the Chairman that I would have thought that ONS was the ideal place for a statistician with my background to work at.

(7) For such a question from the recruitment personnel, the telling statistics with their work and recruitment practice, which excluded blacks, I thought the authorities should be told the experience of a black candidate."

He then set out details of a complaint that he had made and of a later occasion when he was re-interviewed. The re-interview took place in January 2000 and he was rejected by a letter dated February 12 ^th 2000, i.e. by a letter some two months prior to the filing of his originating application. He then said:-

"(25) I believe the rejection for the post I was interviewed is on the ground of my race. I am black of African origin.

(26) I also believe my letter of complaint to the authorities had played a part in my rejection, thus was victimized for the complaint I filed alleging that the rejections to the posts I fully qualify was on the ground of race."

The originating application had been prepared by the appellant himself.

The respondents put in a notice of appearance denying that they had discriminated on the grounds of race, and further denying that they had victimized the appellant.

The matter came on for hearing before the Employment Tribunal (ET) and by a decision dated 28 ^th March 2001 the ET held that the appellant was discriminated against, contrary to s.1(1) (a) of the Race Relations Act 1976, in respect of his application for employment by the respondent, but held that he did not suffer racial discrimination by way of victimization, contrary to s.2(1) (d) .

There was a further hearing relating to compensation and the ET awarded the appellant £32,993.75 the reason for their decision being given by a judgment dated 18 ^th July 2001. The respondents appealed against the decision on direct discrimination and quantum and the appellant cross-appealed against the decisions on victimization and quantum. The appeals came before the EAT on 23 ^rd August 2003. The outcome was that by consent the decisions of the ET were set aside and the appellant's claim was remitted to the ET for a re-hearing. On the occasion of the hearing of the appeal the appellant's representative raised the point that he would or might wish to add a claim of indirect discrimination, that is discrimination of a nature identified in s.1(1) (b) of the 1976 Act.

It seems that the facts by reference to which it might be alleged that the appellant was the victim of indirect...