Baker v The Commissioner of Police of the Metropolis

An originating application must be read as a whole to decide whether it contains a particular discrimination complaint. Particulars may explain a claim, but cannot introduce a claim absent from the form. In deciding whether to amend, an employment tribunal must balance all relevant circumstances. The lateness of an application is one factor and is not, by itself, an insuperable reason to refuse to hear it. In a victimisation claim, a tribunal may include relevant characteristics in constructing the comparator. Even if that approach is legally imperfect, the tribunal’s findings as to the actual reason for the treatment may make the error immaterial.

The claimant, a probationer police officer with dyslexia, presented three ET1 forms. The first was completed without legal assistance and referred expressly to race discrimination, although the disability box was also ticked. The second and third forms, completed with solicitors’ assistance, raised claims under the Disability Discrimination Act 1995.

After a 16-day hearing, the Employment Tribunal held that the first ET1 contained no disability discrimination claim and dismissed the claims. It also dismissed the victimisation claims under the Race Relations Act 1976. The appeal concerned whether the first ET1 included a disability claim, whether the tribunal wrongly refused to hear an amendment application, and whether it adopted the wrong comparator in the victimisation claims.

1. Disability claim in the first ET1. The ET correctly read the first ET1 as a whole. Although the disability box was ticked, the particulars identified race discrimination and did not allege that any treatment was because of dyslexia or required disability-related adjustments. The ET’s conclusion was open to it and was neither an error of law nor perverse.
2. Amendment. The ET erred in refusing to hear or determine the application to amend merely because it was made at a very late stage. Applying Selkent Bus Co Ltd T/A Stagecoach Selkent v Moore, the tribunal had to consider all the circumstances, including the nature of the proposed amendment, whether it was genuinely a re-labelling of pleaded events, limitation, any just and equitable extension, and the balance of injustice between the parties.
3. The case was remitted for determination of the amendment application. Any application had to identify the statutory provision allegedly breached by each act and explain why the claims were within time or why time should be extended. The application was to be determined on the evidence before the original tribunal, without additional evidence in support.
4. Victimisation. The ET adopted an approach which included additional characteristics in the hypothetical comparator. Following Chief Constable of West Yorkshire Police v Khan, that was not necessarily an error of law. The essential question remained why the respondent acted as it did. The ET made clear findings that the impugned treatment resulted from matters unrelated to protected acts under section 2(1) of the Race Relations Act 1976. The dismissal of those claims was therefore plainly and unarguably right.
5. The appeal was dismissed except in relation to the refusal to consider the amendment application.

• Employment Tribunal: Judgment entered on 11 February 2009 in the three joined claims. The tribunal held that the first ET1 did not contain a disability discrimination claim and dismissed the victimisation claims.
• Employment Appeal Tribunal: The appeal was dismissed save for the refusal to hear or determine an application to amend the first ET1. That application was remitted to the same tribunal if reasonably practicable, otherwise to a tribunal directed by the Regional Judge.