Practice and Procedure – The claimant in the employment tribunal presented a claim, acting in person, which included at least two distinct complaints of direct race discrimination, or harassment, on the part of a named individual, Mr Tripathi. Two companies in the same group were named in the claim form as respondents, the claimant having been uncertain as to which was her employer.
Subsequently the claimant applied to amend her claim, attaching a narrative description of a number of alleged incidents, and including new allegations of sex discrimination. She then also applied to be permitted to add Mr Tripathi as a respondent.
Those applications were considered at a hearing, by which time the claimant had recently appointed solicitors. The applications were refused. The claimant’s solicitors then applied for the decision not to add Mr Tripathi to be revisited on the basis of a material change in circumstances, and/or for fresh consideration to be given to adding him as a respondent to the existing complaints, and for another named individual to be joined. In a further written decision those applications were refused.
Both decisions were appealed, in respect of the tribunal refusing to add Mr Tripathi as a respondent to the original claim (but not in respect of the application to add new complaints).
Held: In the first decision, the tribunal should have considered, first, to what extent the document tabled by the claimant contained voluntary particulars of the race-related allegations in the claim form, which did not require permission to amend, and also whether to grant permission to add the remaining matters that were raised as factually wholly new complaints. Having thus determined the scope of the complaints, as particularised and/or amended, it should then have considered whether to add Mr Tripathi as a respondent to those complaints.
It was, rightly, common ground before the EAT, that the claimant’s document considered at the hearing of the first application did include some matters that amounted to voluntary particulars of the specific race-related complaints in the original claim form. However, the tribunal had erred by not approaching matters in that two-stage way, and by instead reaching a single decision on the application to amend both the complaints and the parties; and by treating the claimant’s document as consisting entirely of new allegations which required permission to amend. Had the tribunal approached the matter in the correct way, its decision on the scope of the complaints, as particularised or amended, might have affected its further decision on whether to add Mr Tripathi as a respondent.
As to the second decision, there was no appeal against the tribunal’s refusal to revisit its first decision on the basis that there had been no material change in circumstances. On the question of whether to add Mr Tripathi as a respondent, the tribunal had not, by its second decision, corrected the error in the first decision, because it did not properly identify and engage with the application on the basis that it was now being asked solely to consider adding Mr Tripathi as a respondent to the original complaints.
The matter would be remitted to the employment tribunal to decide whether Mr Tripathi should be added as a respondent to the existing complaints in the claim form, after what might be agreed or determined to be any necessary or proper particularisation of those existing claims.
Citations:
[2022] EAT 152
Links:
Jurisdiction:
England and Wales
Employment, Discrimination
Updated: 09 November 2022; Ref: scu.682477