Dosanjh v Nottinghamshire Healthcare NHS Trust (Practice and Procedure : Amendment)

An appellate court may set aside a discretionary case-management decision where the tribunal acted under a material misapprehension of fact, overlooked a relevant consideration, or failed to give reasons for its treatment of a central issue. On an application to amend to add discrimination claims, the tribunal must fairly assess matters relevant to delay and prejudice. Those matters may include whether discrimination was raised during an internal process, contemporaneous material showing that it was raised with advisers, and ill health relied on to explain delay.

Different considerations may apply to distinct proposed discrimination claims and according to their connection with an existing unfair-dismissal claim. A tribunal need not address every individual allegation separately, but must reconsider the amendment application on an informed basis.

The Claimant appealed against an Employment Judge’s refusal to permit amendment of her existing unfair and wrongful dismissal claim to add claims of race and disability discrimination. The proposed claims were advanced well after the dismissal and were said to be out of time.

The Employment Judge treated discrimination as having been absent from the disciplinary process, doubted that it had been raised with the Claimant’s former solicitors, and found no reason for the delay. The Claimant contended that disability discrimination had been raised on her internal appeal, that contemporaneous emails recorded her wish to bring a race discrimination claim, and that her ill health explained delay.

The central issue was whether those errors or omissions vitiated the discretionary refusal of permission to amend.

1. Appeal allowed. The refusal of permission to amend could not stand. The application was remitted to a differently constituted Employment Tribunal for reconsideration entirely afresh.

2. The Employment Appeal Tribunal applied the appellate restraint stated in Noorani v Merseyside TEC Limited, [1989] IRLR 184. A discretionary case-management decision is not overturned merely because an appellate tribunal would have decided differently. It may be set aside where the discretion was exercised under an error of law or factual misapprehension, where relevant matters were omitted or irrelevant matters considered, or where the outcome lay outside the generous ambit of reasonable disagreement.

3. The Employment Judge materially misapprehended the facts by finding that discrimination had never been raised during the disciplinary process. Disability discrimination had been raised at the internal appeal stage. Under the Selkent principles, that could affect prejudice because an allegation advanced by amendment might already be in play in the unfair-dismissal proceedings.

4. The Judge also overlooked important contemporaneous emails. They showed that the Claimant had complained of racist conduct and had confirmed that she wished to bring a race discrimination claim. This materially qualified the inference that no discrimination allegation could have been put before her former solicitors.

5. The finding that there was no reason for delay neither evaluated nor addressed the Claimant’s case concerning substantial ill health. That was either an omission of a significant consideration or an inadequate failure to give reasons.

6. On remittal, the Claimant should provide clear consolidated particulars of each proposed claim and a witness statement addressing delay and prejudice. Although separate treatment of every allegation was unnecessary, the tribunal may need to distinguish race from disability discrimination and consider the extent to which each proposed amendment relates to the existing unfair-dismissal claim.

• Employment Appeal Tribunal: Allowed the Claimant’s appeal and remitted the amendment application for reconsideration by a differently constituted Employment Tribunal.
• Employment Tribunal: Employment Judge Hutchinson, sitting at Nottingham, refused on 1 February 2012 permission to amend an unfair and wrongful dismissal claim to add race and disability discrimination claims.