National Statistics Office v Ali

An amendment to an Employment Tribunal originating application must be judged by the whole document. A general reference to race discrimination does not preserve every possible form of discrimination where the pleaded particulars identify the acts and basis of the complaint. Direct discrimination and indirect discrimination are distinct unlawful acts. Adding an unpleaded indirect discrimination claim is therefore a new claim and, if out of time, engages the statutory just and equitable discretion. In practice, the tribunal should assess the application by considering all the circumstances and balancing the injustice and hardship of allowing or refusing the amendment. Neither formulation imposes a materially higher threshold. The fact that a claim is technically out of time is not, by itself, decisive, particularly where the claimant could not reasonably have known the supporting facts earlier.

The appellant had brought proceedings alleging direct racial discrimination and victimisation in relation to the respondent’s refusal to employ him. The Employment Tribunal found direct discrimination, but the proceedings were later set aside by consent and remitted for rehearing. During disclosure and the earlier hearing, facts emerged concerning preferential treatment of internal candidates. The appellant then sought to add an indirect discrimination claim under the Race Relations Act 1976, s 1(1)(b), by paragraph 25A.

The Employment Tribunal held that the original application already included that claim and that paragraph 25A merely clarified it. The Employment Appeal Tribunal disagreed, holding that an amendment was required, and remitted the amendment application for rehearing. The central issues before the Court of Appeal were whether the proposed amendment introduced a new claim and whether the tribunal should apply the statutory just and equitable test or the balance of injustice and hardship approach.

1. Appeal dismissed. The Employment Appeal Tribunal was correct to hold that paragraph 25A introduced a new claim of indirect discrimination and that an amendment was required. The originating application must be construed as a whole. Although its opening description was general, its particulars clearly advanced direct discrimination and victimisation and did not allege the requirement, disparate impact, lack of justification and detriment required for indirect discrimination under s 1(1)(b) of the Race Relations Act 1976 [39].
2. Indirect discrimination is a different type of unlawful act from direct discrimination. A general assertion of racial discrimination cannot be relied upon to conceal a materially different claim where the particulars give the respondent a misleadingly complete account of the case to be met. In so far as Quarcoopome v Sockshop Holdings Ltd suggested otherwise, it should not be followed [39].
3. Because the indirect discrimination claim was new and the relevant act was outside the primary limitation period, the Employment Tribunal must have regard to s 68(6) of the Race Relations Act 1976 when deciding whether to permit the amendment. The statutory question is whether, in all the circumstances, it is just and equitable to consider the out-of-time complaint [40], [48].
4. The tribunal’s practical task is nevertheless the same whether expressed as the statutory just and equitable test or as balancing the injustice and hardship of allowing and refusing the amendment. Neither formulation should produce a materially different result. The tribunal must consider all the circumstances, including the nature of the amendment, limitation, delay, prejudice and the reason why the facts were not identified earlier [40]-[41], [47].
5. Being out of time is not an answer in itself. Where the claimant only discovers the factual basis of the proposed indirect discrimination claim through disclosure or during the hearing, an application made promptly after discovery may be just and equitable. The decisive question on remission was whether the delay made it unjust for the respondent to meet the claim at the new hearing [40]-[41].
6. No further direction should be given to the Employment Tribunal to treat the amendment as not giving rise to a new cause of action. The amendment application was remitted for rehearing in accordance with the statutory provision [48]. Maurice Kay LJ agreed with both judgments and adopted the criticism of Quarcoopome in Smith v Zeneca (Agrochemicals) Ltd [50]-[53].

• Court of Appeal (Civil Division) [2004] EWCA Civ 1363: dismissed the appeal and upheld the EAT’s conclusion that an amendment was necessary, while directing that the application be remitted to the Employment Tribunal for reconsideration under s 68(6) of the Race Relations Act 1976.
• Employment Appeal Tribunal judgment dated 18 February 2004: set aside the Employment Tribunal’s decision that the original application already included indirect discrimination and remitted the amendment application for rehearing.
• Employment Tribunal decision dated 2 January 2004: held that the original application included an indirect discrimination claim and that paragraph 25A merely clarified it.