Argenio v NEC Group Ltd & Anor

An employment tribunal application should be approached as a means of communicating the complaint, rather than as an obstacle course. The relevant question is whether the application, read as a whole, demonstrates the nature of the complaint. Facts stated in the narrative may disclose a complaint even where the corresponding category has not been identified in the form’s list of complaint types. If necessary, an amendment may be permitted where it causes no injustice, with an adjournment available to address any genuine surprise.

The applicant, an employee dismissed for gross misconduct, presented Employment Tribunal claims for unfair dismissal and race discrimination. His application narrative stated that he had dyslexia and that English was not his first language, and explained his wish to record a disciplinary meeting. Shortly before the hearing, he sought to add disability discrimination. The Employment Tribunal treated this as a new, out-of-time complaint under the Disability Discrimination Act 1995 and refused amendment or an extension of time. The Employment Appeal Tribunal dismissed his appeal. He applied to the Court of Appeal for permission to appeal.

1. Permission granted. Lord Justice Sedley granted permission to appeal on the single ground that the applicant should not have been prevented from pursuing a disability discrimination complaint.
2. The originating application form for employment tribunal proceedings is intended to be simple. It need not be used at all if the necessary matters are communicated to the tribunal. The application must therefore be read as a whole to determine whether it demonstrates the nature of the complaint.
3. Although disability discrimination was not specified in the complaint-category box, the narrative expressly referred to dyslexia, language difficulty and the reasons for wishing to record the meeting. It was fairly arguable that these facts were capable of supporting a disability discrimination claim.
4. If the complaint required express identification in the form, it was arguable that amendment could have been allowed because the underlying facts had been set out from the beginning. Any genuine surprise to the respondents could potentially have been dealt with by an adjournment.
5. The applicant’s complaints that the tribunals had acted improperly amounted, at their highest, to assertions that they had made errors. Error is not a separate head of misconduct; the proper remedy is an appeal.
6. The applicant was warned that he would bear the ordinary costs risk of an unsuccessful appeal. Legal representation was recommended, and the application for permission to appeal was allowed as stated in the judgment.

• Employment Tribunal, Birmingham: On 6 March 2001, refused to permit the disability discrimination complaint to proceed, refused amendment and declined to extend time.
• Employment Appeal Tribunal: On 5 September 2002, dismissed the applicant’s appeal in a reasoned judgment.
• Court of Appeal (Civil Division): Granted permission to appeal on the single disability discrimination pleading and limitation issue.