Dass v The College of Haringey, Enfield and North East London & Anor

An employment tribunal has a broad discretion to refuse a very late amendment introducing multiple new causes of action with only a remote connection to the original claim. Relevant considerations include limitation, delay, prejudice and whether allowing the amendment would cause injustice or merely incur futile costs. A stay does not entitle a claimant to wait and add claims that could have been brought separately. Refusing to accept or settle a claim is not, without more, direct discrimination or victimisation. The conduct must be because of sex or a protected act. The Court of Appeal will not interfere with a properly directed case-management decision falling within the tribunal’s discretion.

The appellant brought a part-time worker’s pension claim in 1994 against his former employer. The claim was stayed pending test litigation. In 2011 the Employment Tribunal accepted that he was entitled to retrospective pension-scheme membership for part of the relevant period, but refused his 2010 application to add claims for breach of contract, arrears and deductions, discrimination, victimisation, regulatory breaches and litigation misconduct extending to 2004.

The Employment Appeal Tribunal, applying the principles in Selkent Bus Company Ltd v Moore, refused an appeal. On a renewed application, the issue was whether either tribunal had arguably erred in law, including by failing to account for the delay, limitation, prejudice or the alleged discriminatory refusal to accept or settle the claim.

1. Permission refused. The refusal of permission by Elias LJ on the papers was upheld. There was no real prospect of successfully challenging either the Employment Tribunal’s refusal of the amendments or the Employment Appeal Tribunal’s refusal of a full appeal.
2. The decision whether to allow an amendment is discretionary. Under Selkent Bus Company Ltd v Moore [1996] ICR 836, the tribunal must consider the nature of the amendment and relevant matters including limitation, delay, prejudice and the interests of justice. A claimant has no right to add wholly new and remotely related causes of action to an existing claim.
3. The proposed money claims were long out of time, and the appellant had known the relevant facts since 2004. Allowing them as amendments treated as made with the original claim would have caused obvious injustice by defeating limitation. Allowing them subject to a time-bar defence would have achieved nothing and wasted costs. The stay did not justify waiting to issue separate proceedings. The equal-pay complexity discussed in Potter v North Cumbria Acute Hospitals NHS Trust [2009] IRLR 900 was irrelevant to these proposed amendments.
4. A refusal to accept or settle a claim is not inherently direct discrimination or victimisation. Liability requires the conduct to have been because of the claimant’s sex or because of a protected act. The reasoning in Hartlepool Borough Council v Llewellyn [2009] IRLR 796 supported the conclusion that taking a bad legal point did not itself establish discriminatory motivation.
5. The Employment Tribunal had applied the correct principles and its decision fell within the broad ambit of its discretion. The Court of Appeal would not interfere with such a case-management decision, and the application for permission to appeal was therefore refused.

1. Court of Appeal (Civil Division) — On a renewed application, permission to appeal was refused: [2013] EWCA Civ 884.
2. Employment Appeal Tribunal — Judge Richardson held that the Employment Tribunal had not erred in law in refusing the amendments and refused the proposed appeal: UKEATPA/0672/11/ZT.
3. Employment Tribunal — Judge Sigsworth refused permission to amend the original claim to add the proposed new claims.