Brill v Interactive Business Communications Ltd

An amendment adding an associative disability discrimination claim cannot be refused on the assumption that a statutory grievance was required for every form of the proposed claim. A grievance is required for a reasonable-adjustments claim, but not for discrimination relating to dismissal. The amendment remains a discretionary case-management decision and should ordinarily be determined by an Employment Judge. An unless order striking out an entire response for failure to disclose the address of a potential witness may be disproportionate. The reasonableness of the sanction, including the time allowed for compliance and whether the order could reach the affected party, must be assessed in the circumstances.

Mr Brill brought two interlocutory appeals arising from proceedings against his former employer. The first challenged Employment Judge Metcalf’s revocation of permission previously granted to amend the ET1 to add an associative disability discrimination claim under the Disability Discrimination Act 1995. The second challenged Employment Judge Southam’s decision to revoke an unless sanction which had automatically struck out the employer’s ET3 for failing to disclose a former employee’s last known address.

By the time of the appeals, the substantive tribunal had found that Mr Brill was unfairly dismissed but had reduced compensation to nil for 100% contributory conduct. The central issues were whether the amendment had been refused on an erroneous jurisdictional basis and whether restoring the response was legally or procedurally impermissible.

1. Amendment. The appeal against the revocation and refusal of permission to amend was allowed. The Employment Appeal Tribunal held that the proposed amendment was capable of including a complaint that dismissal was an act of, or related to, disability discrimination. Such a claim did not require a statutory grievance. A grievance would have been required for a claim alleging breach of the duty to make reasonable adjustments, but the Employment Judge treated the absence of a grievance as a significant reason for refusing the amendment without adequately distinguishing the possible claims.
2. The amendment decision involved the exercise of discretion, taking account of a variety of matters. It was therefore for an Employment Judge to decide the issue. Applying the approach in Dobie v Burns International Security Services (UK) Ltd [1984] ICR 812, the decision could not be upheld as plainly and unarguably correct despite the misdirection. Both the application to revoke the earlier permission and, if necessary, the application to amend were remitted for a de novo decision. The Employment Appeal Tribunal indicated that the parties should ordinarily have an opportunity to make representations. It also noted the possible relevance of jurisdiction, abuse of process, limitation, costs, and the effect of the substantive tribunal’s findings.
3. Unless order. The appeal against restoration of the ET3 was dismissed. Under rules 10 and 13 of the Employment Tribunals Rules, an Employment Judge had power to remove the unless sanction and reverse the automatic strike-out. The sanction was disproportionate because it struck out the entire response for failing to disclose the address of a potential witness.
4. The unless order, made on 30 December 2008 with compliance required by 2 January 2009 over the New Year period, was unreasonable. It was unlikely to come to the employer’s representatives’ attention before the deadline. Although the Appellant had not been invited to make representations, any procedural error could not have affected the result: applying Dobie, removal of the disproportionate sanction and restoration of the ET3 were plainly and unarguably inevitable in the circumstances.

• Employment Appeal Tribunal: allowed the appeal concerning permission to amend and remitted the applications to an Employment Judge; dismissed the appeal concerning the unless sanction and restoration of the ET3.
• Employment Tribunal: found that Mr Brill had been unfairly dismissed, but reduced compensation to nil for 100% contributory conduct. It rejected the contractual and commission claims.