Argenio v NEC Group Ltd. & Anor

An Employment Tribunal originating application should be read broadly and untechnically, but it remains a form of pleading. It must sufficiently notify the respondent of the material facts on which the claim is based. A reference to dyslexia that merely explains why an employee wanted to record a meeting does not, without more, notify the employer of a disability-discrimination claim. The pleading must connect the disability to the alleged dismissal or detriment, or identify the substantial disadvantage caused by an arrangement and the reasonable adjustment said to be required. A later attempt to introduce that claim is a new claim and may be out of time. Whether a claim was sufficiently indicated is fact-sensitive.

Carmelo Argenio appealed from the Employment Appeal Tribunal, which had dismissed his appeal against an Employment Tribunal decision. The Employment Tribunal held that his proposed disability-discrimination complaint was introduced approximately 13 months out of time and that it was not just and equitable to extend time.

His original application concerned unfair dismissal and race discrimination. It referred to dyslexia only when explaining his wish to tape-record a meeting. In January 2001 he sought to introduce a disability-discrimination claim. Permission to appeal was limited to whether paragraph 5 of the original statement already contained facts capable of supporting that claim.

Lord Justice Peter Gibson delivered the judgment. Lord Justice Waller and Lord Justice Jonathan Parker agreed.

1. Disposition. The appeal was dismissed. The order for costs was upheld, with costs summarily assessed at £10,000 inclusive of VAT.
2. Nature of an originating application. An Employment Tribunal form should be approached broadly and without undue technicality. No particular precision is required. Nevertheless, it operates in substance as a pleading and must notify the respondent of the material on which the claim is based.
3. Application to the pleaded case. The original application, read as a whole, advanced unfair-dismissal and race-discrimination complaints. Its reference to dyslexia explained the appellant’s wish to record the meeting. It did not assert that dyslexia caused his dismissal or suspension, as required for the case advanced under section 4(2)(d) and section 5 of the Disability Discrimination Act 1995.
4. The proposed section 6 case was also inadequately indicated. The appellant did not allege that he failed to understand questions at the meeting, which was not a disciplinary meeting. The employer’s no-recording rule was therefore not shown, on the pleaded facts, to place him at a substantial disadvantage compared with non-disabled persons.
5. The January 2001 letter accordingly sought to introduce a new disability-discrimination claim, rather than relabel an existing claim. The Employment Tribunal was entitled to treat it as long out of time. Davidson v The Ministry of Defence was factually distinct: dyslexia there formed part of the central unfair-dismissal complaint and the delay was shorter. It was an Employment Appeal Tribunal decision and was not binding on this court.

• Court of Appeal (Civil Division) — dismissed the appeal and ordered costs summarily assessed at £10,000 inclusive of VAT: [2003] EWCA Civ 523.
• Employment Appeal Tribunal — on 5 September 2002, dismissed the appeal from the Employment Tribunal.
• Employment Tribunal — decision sent on 6 March 2001, held that the proposed disability-discrimination complaint was out of time and that it was not just and equitable to extend time.