EAT PRACTICE AND PROCEDURE
Application/claim
Amendment
VICTIMISATION DISCRIMINATION
An originating application must be read as a whole to ascertain whether it contains a particular complaint. The Claimant who was black and dyslexic completed an ET1 without legal assistance. He ticked the Disability and the Race boxes in paragraph 6.1. In the particulars of complaint in Box 6.2 he referred to race discrimination but made no complaint obviously related to disability discrimination. Two further ET1s were presented by solicitors. These clearly raised complaints under the Race Relations Act 1976 and the Disability Discrimination Act 1975. All three ET1s were considered at a CMD at which issues were identified some of which applied to the DDA as did information ordered to be provided. Reading the first ET1 as a whole applying Office of National Statistics v Ali [2005] ICR 201 paragraph 39 the ET did not err in concluding that the first ET1 did not contain a claim under the DDA.
However, the ET erred in refusing to hear and/or determine an application to amend the first ET1 to ‘re-label’ events as falling within the DDA on the basis that the application was made at a very late stage in the proceedings. This is but one of the considerations to be taken into account in determining an application to amend. Selkent Bus Co Ltd T/A Stagecoach Selkent v Moore [1996] IRLR 661 applied.
Whilst it is preferable for an ET not to introduce characteristics relevant to the reason why a Respondent took the action complained of in a victimisation claim in determining whether a Complainant has been treated less favourably than a comparator, it is not an error of law to do so: see Lord Nicolls in Chief Constable of West Yorkshire v Khan [2001] ICR 1065 at paragraph 27. Even if the ET had erred in this regard it made clear findings of fact that the reasons for the actions complained of were nothing to do with protected acts under RRA Section 2(1)(a) to (d) and would have dismissed the claims applying the preferred approach.
Appeal dismissed save in respect of the refusal of the ET to consider and determine the application to amend. Case remitted to the ET to consider the application to amend the first ET1.
Citations:
[2010] UKEAT 0201 – 09 – 0502
Links:
Employment
Updated: 14 August 2022; Ref: scu.396735
