Has amending claims just got more difficult?


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The Employment Appeal Tribunal (EAT) has upheld a tribunal's decision to refuse an application to amend a direct discrimination claim to include indirect discrimination in Patka v British Broadcasting Corporation. This was despite the fact that the claimant was still potentially in time to bring a fresh indirect discrimination claim.

Mr Patka worked for World Services Languages (WSL) Unit of the BBC. He obtained information that WSL employees were paid on average £7,400 less than BBC employees of the same grade working for Network News. He brought a claim on 2 January 2016. Following a couple of preliminary hearings in which he acted in person, on 1 November 2016 he applied to amend his claim to include indirect discrimination. His application to amend was considered at a third preliminary hearing and refused, in part on the basis that his late application to amend had resulted in the final hearing being postponed.

The EAT agreed with the tribunal and dismissed the appeal. Although it found that the tribunal had failed to give proper weight to the fact that the amendment was still in time to be brought as a fresh claim, it was not necessarily true in this case that it would be best for a new claim to be heard as part of an existing claim. Furthermore the amendment application had already led to the postponement of the final hearing and the tribunal was entitled to be influenced by the prejudice to the BBC if the amendments were allowed.

Meanwhile, the EAT has held in Reuters Ltd v Cole that a tribunal was not correct to grant an application to amend a disability related claim to include a claim for direct discrimination.

Mr Cole is an assistant editor at Reuters Ltd. He suffers from a chronic depressive illness, and is disabled. He has been off work because of his disability since January 2016. On 3 June 2016 he presented a claim for discrimination arising from a disability and failure to make reasonable adjustments. The proceedings were stayed for around nine months at his request while an internal grievance procedure was ongoing. Then on 23 August 2017 Mr Cole made an application to amend his claim to include claims for direct and indirect disability discrimination, arguing that the new claims arose out of the same or similar facts as already set out in the original claim. The tribunal granted his application, but Reuters appealed.

The EAT held that the tribunal had been wrong to hold that the amendment was merely a relabelling exercise. This could not be the case because there was a higher test and different issues involved in a direct discrimination case. Amending Mr Cole's claim to include direct discrimination would require a wider factual enquiry, and a comparative exercise to determine whether he had been treated less favourably, and, if so, whether this was on the ground of his disability. The EAT held that the tribunal should have had regard to all of the relevant factors when exercising its discretion, including the fact that the new claim was out of time. The application was remitted to the tribunal on the basis that it sought to amend to include a fresh claim rather than being a relabelling of existing claims.

Take note: It seems, following the decisions in both Patka and Cole, that tribunals are becoming more restrictive when it comes to claimants wanting to amend claims. The fact that a new claim arises out of the same facts no longer has much weight.

This article is taken from HR Law - May 2018.

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