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:-

What are the relevant circumstances? It is impossible and undesirable to attempt to list them exhaustively, but the following are certainly relevant.

“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.

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:-

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

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.

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:-

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.

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:-

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 discrimination had arisen as a result of disclosure by the respondents during the process leading up to the first hearing. Further, it seems that the appellant had cross-examined representatives of the respondents by reference to the policy adopted by the respondents in relation to offering posts. It was in that context that the ET, who heard the original case, recorded that:-

The precise nature of the suggested indirect discrimination claim was not identified before the appeal tribunal, and the appellant was informed that it was a matter for the ET to whom the case had been remitted to consider whether to allow a claim of indirect discrimination to be raised at this stage.

On the 26^th November 2003 there was a hearing before the Chairman of the ET, Mr Snelson, sitting alone for the purpose of giving directions for the rehearing. By this stage the appellant was represented by counsel, Miss Hill, who sought leave to amend the originating application to add a claim of indirect discrimination. She gave notice that she wished to add a paragraph 25A in the following terms:-

Mr Snelson adjourned the directions hearing to be heard by a tribunal of three and that could be arranged for the same day.

Miss Hills’ written submissions contained the following paragraphs;-

The first issue relevant to the exercise of that discretion is whether by this claim Mr Ali simply seeks to re-label already pleaded facts, or whether he is seeking to introduce a new claim out of time.

As to that, Mr Ali’s originating application stated the nature of his complaint at Box 1 as “whether I have been victimized and discriminated against on racial grounds”, there is authority to the effect that a complainant that simply asserts “race discrimination” can be taken to cover both forms of discrimination (Quarcoopome v Sockshop Holdings Ltd[1995] IRLR 353 EAT), regardless of the state of the pleaded facts. However, Mr Ali accepts that it would be difficult to run such an argument in this case in light of later authority which casts doubt on Quarcoopome, namely Housing Corporation v Bryant [1999] ICR 123 CA (with its requirement to examine the case as set out in the original application to see if it applies the necessary “causative link” with the proposed amendment, which causative link is not clearly made out in his case). On that analysis his amendment would be an application to the tribunal to extend time for him to bring an indirect discrimination claim out of time, on the basis that it would be just and equitable to do so under s.68(6) of the RRA. Again, as to that discretion, the tribunal will be fully aware of the breadth of its discretion, as discussed in Hutchinson v Westwood [1997] 1RLR 69. However because of the unusual background to the case, Mr Ali’s applications fall somewhere between the two positions.

The ET by a decision dated 2^nd January 2004 adopted a view which had not been supported in argument by Miss Hill. The ET took the view that paragraphs 3 and 7 of the originating application raised the issue as to whether there was something about the respondent’s recruitment practice which had the effect of excluding black people. It was therefore their unanimous decision that the originating application included a claim that the respondent’s recruitment practices were indirectly discriminatory and that no amendment to the originating application was required. They held that the proposed amendment at paragraph 25(A) “clarifies the applicant’s claim.”

The ONS appealed to the EAT. The main ground of their appeal was that the ET had taken a point not argued by either party. The skeleton argument referred to Selkent v Moore and suggested that the claim for indirect discrimination was out of time. It referred to Section 68(6) and the “just and equitable” test, but in paragraph 11 suggested the Tribunal should direct itself by reference to “the balance of injustice and hardship”. That balance, it was submitted, was in favour of refusing an amendment, having regard to the history of the matter. The appellant on this occasion represented himself. He sought to uphold the ET’s decision on the basis that paragraphs 3 and 7 of his originating application did raise a claim for indirect discrimination. That skeleton was lodged on the 12^th February and evidently he took no steps to seek legal representation before the commencement of the hearing. He did apply for an adjournment in order to try and obtain representation but, perhaps unsurprisingly, that application was refused.

The decision of the EAT given by a judgment of Rimer J dated 18^th February 2002, was that the ET was wrong in its interpretation of the two paragraphs in the originating application. It was therefore not right to conclude that the proposed amendment was simply a clarification of a claim already included in that application. The EAT however thought it right to remit to the Employment Tribunal whether or not the application for an amendment to introduce a claim of indirect discrimination should be permitted.

It is apparent that no great debate took place before the EAT as to the proper approach which the ET should take when reconsidering the question of amendment. But it was certainly the submission of Mr Stanley, who was appearing for the ONS on that occasion, that if, as they did decide, the EAT came to the view that this was a new claim, then it was a claim being brought out of time and the relevant provision to apply was s.68(6) of the 1976 Act.

Application was then made to this court for permission to appeal. Miss Naomi Cunningham represented the appellant at an oral hearing before Lord Justice Mummery. The basic submission before Mummery LJ was that, by virtue of a previous decision of the EAT in a judgment given by Buckley J in Quarcoopome, (supra), a claim of “race discrimination” was sufficient to cover discrimination both direct and indirect, and that therefore the ET’s decision was in fact correct. Mummery LJ was persuaded to give permission to appeal, referring to the fact that Quarcoopome had not itself been referred to in the judgment of the EAT given by Rimer J. Before us Miss Heather Williams accepted that leave to amend was necessary but her concern was to obtain a ruling that the amendment did not allege a new claim to which s.68(6) applied. Her submission was that ETs do distinguish between new claims to which the “just and equitable” test applies, and amendments which do not involve new claims to which the “balance of hardship and injustice” test applies, the former involving a higher threshold that the latter.

which is such that the proportion of persons of the same racial group as that other who can comply with it is considerably smaller than the proportion of persons not of that racial group who can comply with it; and

which he cannot show to be justifiable irrespective of the colour, race, nationality or ethnic or national origins of the person to whom it is applied; and

which is to the detriment of that other because he cannot comply with it.

Discrimination by way of victimisation

A person (“the discriminator”) discriminates against another person (“the person victimised”) in any circumstances relevant for the purposes of any provision of this Act if he treats the person victimised less favourably than in those circumstances he treats or would treat other persons, and does so by reason that the person victimised has-

It is unlawful for a person, in relation to employment by him at an establishment in Great Britain, to discriminate against another-

A complaint by any person (“the complainant”) that another person (“the respondent”)-

An [employment tribunal] shall not consider a complaint under section 54 unless it is presented to the tribunal before the end of [-

Without for a moment reference to authority the above provisions appear to provide for the following. An ET has jurisdiction to consider a complaint by any person that another person has committed “an act” which is unlawful. We are concerned in this case with alleged discrimination against the appellant, either in the arrangements made for the purposes of determining who should be offered employment, or by virtue of a refusal to offer employment. The case was also concerned with discrimination by way of victimization and may well be so at the remitted hearing, but that does not need to concern us. In the original application the particulars clearly asserted discrimination on racial grounds, i.e. that the appellant was being treated less favourably than the respondents treated other persons on racial grounds.

When I read the particulars identifying the factual allegations which the appellant wished to make to support his claim, I can find no assertion of indirect discrimination or, to put it in the language of s.1(1)(b) no assertion that a requirement or condition was being applied, which would apply equally to persons not of the same racial group as the appellant, but which was such that the proportion of persons of the same racial group as the appellant who could comply with it was considerably smaller than the proportion of persons not of that racial group who could comply with it, and which was to the detriment of the appellant because he could not comply with it.

I cannot therefore see that paragraphs 3 and 7 contain any allegation of indirect discrimination.

It has not been submitted that the paragraph 25A does not adequately assert the components of indirect discrimination. I have to say that I find some difficulty in fitting the assertion into the relevant sub-sections, but will take no further time on that.

If, therefore, I was following the statutory provisions, my inclination would be to say that direct discrimination is one type of unlawful act and indirect discrimination is a different type of unlawful act. That being so, and an allegation of indirect discrimination not having been particularised in the originating application, my view would be that the ET were clearly wrong in the conclusion they reached, and the EAT were correct if and insofar as they concluded that this was a new claim being brought out of time and to which s.68(6) would apply.

As I have said, Miss Williams does not now contest the view that leave to amend was needed. She does however seek to argue that the authorities support the view that the general statement at the commencement of the originating application, plus (or even without) paragraphs 3 and 7, incorporated a claim for indirect discrimination of some kind and that thus the limitation provisions Section 68(1) and (6) are not applicable. She submits that the proper approach is that advocated by Buckley J in Quarcoopome, i.e. that the Tribunal was simply bound to balance the injustice and hardship of allowing the amendment against the injustice and hardship of refusing it.

I have to say that I have not found the authorities all that easy to reconcile. But the foundation of Miss Williams’ argument in this court was the case of Quarcoopome. That was a case in which Mr Q presented an originating application in which in the first box he stated that he wished the tribunal to decide “unfair dismissal, race discrimination, unlawful deduction contrary to Wages Act 1986.” Certain particulars were provided but they did not specifically identify a claim of indirect discrimination. When the case came on for hearing Mr Q’s counsel indicated that he wished to present a claim for indirect discrimination and the employers objected on the grounds that this amounted to the presentation of a new claim, which was out of time. The industrial tribunal held that it was not just and equitable to consider the complaint of indirect discrimination. The EAT in a judgment given by Buckley J allowed the appeal but remitted the matter to the Tribunal to reconsider the question of amendment. The judgment relied on Dodd v British Telecommunications[1988] IRLR 16, which he suggested had held that an originating application which simply specified in the box that the case was one of “Sex Discrimination Act or Race Relations Act” sufficiently identified the claim. Buckley J said:-

That decision was cited (as was Dodd) in Selkent. They however were only quoted in the judgment in the context of the submissions made on behalf of Mr Moore, and without further comment.

Neither Dodd nor Quarcoopome were cited in The Housing Corporation v Bryant [1999] ICR 123. That was a decision of the Court of Appeal in which an application was made to amend the application to claim victimization. The original claim alleged sex discrimination at an early date and also alleged at a later date unfair dismissal. The original application did not however link the two allegations and make a claim of victimization. The Court of Appeal, reversing the EAT, held that there had to be a causative link alleged as between sex discrimination and the dismissal, and since that causative link had not originally been pleaded the application to amend was an application to bring a new claim. It was thus subject to the test whether it would be just and equitable to extend time. On the basis that the original industrial tribunal had correctly concluded that it was a new claim, the Court of Appeal allowed the appeal and refused the amendment.

So far as victimization is concerned, in the light of Housing Corporation v Bryant, the EAT has in Lewis v Blue Arrow Cars Ltd, EAT/694/99refused to follow the very wide dictum of Buckley J in Quarcoopome. In the judgment given by His Honour Judge Peter Clarke it was said:-

It is of passing interest that in the decision of the ET the language used by the chairman was that it was “not just and equitable” to allow the amendment. One notes the language used by His Honour Judge Peter Clarke was the “balance of hardship”. That would seem to point to there being little distinction between the two tests. However, as I have indicated, Miss Williams, supported by Mr Thomas, submits that tribunals do consider that “just and equitable” does impose a higher test. Those submissions are at least to an extent supported by a decision included with our papers but not referred to in argument, Harvey v Port of Tilbury London Ltd(1999) ICR 1031. In the judgment given by Lindsay J it is certainly apparent that he was of the view that a material distinction existed between the case where a new claim was being brought and the case where the claim was already covered by the existing originating application. In that case the original claim was for unfair dismissal and the amendment sought was to assert that, in dismissing the claimant, the employer had discriminated contrary to the Disability Discrimination Act 1995. It was a case, thus, where it could be said that the event was within three months of the originating application and that, adopting the view of Charles J quoted in paragraph 4 above, there should be little difference between the test of just and equitable and balance of justice. That said, since Lindsay J also decided that if balance of justice was the correct test the Tribunal was right to refuse the amendment, the decision itself perhaps takes matters little further.

I finally turn to Smith v Zeneca (Agrochemicals) Ltd[2000] ICR 800 where the authorities are scrutinised in great detail. In that case the employee made a claim of sex discrimination against her employers on the grounds that they were vicariously liable for acts of sexual harassment by a fellow employee. At the hearing the applicant raised as an issue for the Tribunal that the employer’s handling of her complaint of harassment itself constituted unlawful sex discrimination by the employer. The Tribunal found that, although the disciplinary proceedings against the applicant’s fellow employee, on which she was basing her complaint of discrimination by the employers had been concluded seven days before the applicant presented her originating application to the Tribunal, the application did not include a complaint of discrimination by the employers themselves, and no application had been made to amend to add such a complaint. The Tribunal held that, in the absence of such amendment, they had no jurisdiction to consider the applicant’s additional claim. The applicant appealed and the EAT, by a judgment prepared by Charles J, upheld the ET’s decision holding that the allegation of sexual harassment by the employers was a new claim, but that even if it was not, and even it could be categorised as particulars, then the balance of hardship and injustice would have made it unfair for the Tribunal to deal with the additional claim as requested, and they were correct in their conclusion on jurisdiction.

In his judgment Charles J subjected Quarcoopome and Dodd to detailed analysis. He concluded that if it had been necessary to do so the appeal tribunal would have refused to follow Quarcoopome because it did not accord with, or follow the reasoning and approach in Dodd, and because it failed to have proper regard to the point confirmed by a Court of Appeal decision in Cast v Croydon College [1998] ICR 500 of the need in discrimination cases to identify the acts complained of.

In his judgment Charles J set out the relevant passage from Selkent, which I have quoted at the commencement of this judgment. He pointed out that the reference to “the applicability of time limits” as being one of the relevant circumstances, takes one to those sections which provide that claims outside the three month period should only be allowed to proceed where it is “just and equitable to allow an applicant to amend”. He said in relation to Dodd and Quarcoopome that they were both cases concerned with an originating application and whether an effective complaint had been made to prevent time running. However he pointed out that in Dodd the application and rejection were referred to in paragraphs 6 and 11 of the unparticularised originating application. Therefore he said the unparticularised application identified the act complained of, and made clear that the applicant was making a complaint of discrimination in respect of it, albeit it did not specify whether that was a complaint under the Race Relations Act 1976 or the Sex Discrimination Act 1975 or both. So far as Quarcoopome was concerned, Charles J had considerable difficulty with it, but he pointed out that, even in that case, and if an amendment was not out of time, amendment was still necessary and the test applied was the balance of hardship and injustice test.

In paragraph 55 he commented on Quarcoopome in the following terms:-

It is then in this context that he ultimately said what he did in paragraph 59, a paragraph quoted at the commencement of this judgment.

Miss Heather Williams, in a detailed skeleton argument by reference to the authorities above cited, seeks to suggest that there should be no undermining of the authority Quarcoopome. In so submitting, she seeks to take the proposed amendment outside the “just and equitable” provision and into the “balance of hardship and justice”. Mr Thomas, on the other hand, submits that Quarcoopome hardly survives the analysis of Charles J in Smith v Zeneca. Thus he submits the correct question for the tribunal will be whether it is just and equitable to allow the claim of indirect discrimination to be brought out of time.

In my view the question whether an originating application contains a claim has to be judged by reference to the whole document. That means that although box 1 may contain a very general description of the complaint and a bare reference in the particulars to an event (as in Dodd), particularisation may make it clear that a particular claim for example for indirect discrimination is not being pursued. That may at first sight seem to favour the less particularised claim as in Dodd , but such a general claim cries out for particulars and those are particulars to which the employer is entitled so that he knows the claim he has to meet. An originating application which appears to contain full particulars would be deceptive if an employer cannot rely on what it states. I would for my part think that insofar as Quacoopome suggests to the contrary it should not be followed. Therefore I would hold that paragraph 25A seeks to bring into the proceedings a new claim.

But, as I indicated at the commencement of this judgment, I find it impossible to think an ET should find that it makes any difference whether the test it should apply is “just and equitable” or on the “balance of hardship and justice”. There are, as Mummery J said in Selkent, many different circumstances in which applications for leave to amend are made. One can conceive of circumstances in which, although no new claim is being brought, it would, in the circumstances, be contrary to the interests of justice to allow an amendment because the delay in asserting facts which have been known for many months makes it unjust to do so. There will further be circumstances in which, although a new claim is technically being brought, it is so closely related to the claim already the subject of the originating application, that justice requires the amendment to be allowed, even though it is technically out of time. In the instant case, where the appellant only discovered the facts on which he relies for bringing his indirect discrimination claim during the process of disclosure or during the hearing, it is inconceivable that an application to amend to add that claim as soon as it was discovered would have been refused. The fact that technically it was being brought out of time could not have been an answer, having regard to the appellant’s ignorance. So in a case such as this being out of time is certainly not an answer in itself.

The question in this case is going to revolve round whether the delay in identifying the indirect discrimination claim renders it unjust for the respondents to meet that claim now at the new hearing. That in my view if tested by reference to the balance of justice and hardship will reach no different result than if the test were “just and equitable”.

In the result, I would uphold the decision of the EAT that the ET were wrong in concluding that no amendment was necessary, but I would suggest that the approach of the ET should be as indicated.