Redhead v London Borough Of Hounslow

An ET1 must be construed as a whole to identify the claims actually presented. References to race discrimination, a tick in a discrimination box, or later documents do not necessarily establish a direct or indirect race discrimination claim where the particulars clearly formulate complaints as victimisation or detriment for making protected disclosures.

An application to amend must be determined by identifying and balancing the respective hardship to the parties if the amendment is allowed or refused. Failure to undertake that exercise is an error of law requiring the decision to be set aside and the application reconsidered.

The claimant, a black African Caribbean employee of the respondent council, presented an ET1 alleging victimisation and detriment for making protected disclosures. She later brought constructive, unfair and wrongful dismissal proceedings, which were consolidated with the first claim.

After her representative provided further and better particulars alleging direct and indirect race discrimination, the Employment Tribunal held that the original ET1 did not contain such claims and refused permission to amend. The claimant appealed both case management decisions. The respondent accepted that the amendment decision had been reached without applying the balance of hardship approach.

1. Scope of the original ET1. The Employment Tribunal had to determine, as a question of fact, whether the ET1 contained claims of direct or indirect race discrimination. The form had to be read as a whole. The references to discrimination in the background material described earlier grievances and alleged protected disclosures. The references to discriminatory acts were consistent with victimisation. The tick in the race discrimination box was only one feature of the overall construction.
2. Subsequent documents, including the respondent’s grounds of resistance, could provide little assistance in construing the original claim. The ET1 repeatedly and precisely characterised the alleged adverse treatment as victimisation or detriment because the claimant had made protected disclosures. It contained no usual formulation of direct discrimination, such as less favourable treatment because of race or a comparison with a person of another race. It contained no allegation of a provision, criterion or practice causing the disadvantage required for indirect discrimination. The decision that the ET1 raised no such claims disclosed no error of law.
3. The approach in Quarcoopome v Sock Shop Holdings Ltd [1995] IRLR 353, insofar as it suggested that merely mentioning race discrimination embraced every variant under the Race Relations Act, had been displaced by Ali v Office for National Statistics [2005] IRLR 201.
4. Amendment. Under Selkent Bus Co Ltd v Moore [1996] IRLR 661, the tribunal had to identify the hardship to the claimant if amendment were refused and the hardship to the respondent if it were allowed, then balance those competing considerations. The Employment Tribunal had failed to do so. The refusal of amendment was therefore set aside.
5. The application was remitted to a different Employment Tribunal Judge. The remission concerned only the proposed amendment introducing direct racial discrimination. The proposed indirect discrimination amendment had been expressly abandoned and was not remitted.

• Employment Appeal Tribunal: The appeal was dismissed concerning the finding that the original ET1 contained no direct or indirect race discrimination claim. It was allowed concerning refusal of the proposed amendment, which was set aside and remitted to a different Employment Tribunal Judge.