Redhead v London Borouh Of Hounslow (Practice and Procedure : Amendment)

An application to vary or revoke an unless order under Employment Tribunal Rules of Procedure 2004, rule 12(2), does not suspend the obligation to comply. The applicant must comply if possible and seeks variation or relief at the risk that the order will remain effective.

Relief from the sanction of strike-out is fact-sensitive. A tribunal may give decisive weight to knowing, deliberate and persistent non-compliance, particularly where there is no substantial compliance and further delay prejudices a fair hearing.

On amendments, the tribunal must consider all circumstances, including the substance of the amendment, limitation, and the timing and manner of the application. A new discrimination allegation which materially broadens the factual enquiry is not merely a different legal label.

The Claimant brought consolidated Employment Tribunal claims for victimisation, protected-disclosure detriments and constructive dismissal. She had expressly confirmed at an earlier case management discussion that she was not pursuing direct race-discrimination claims.

Following a remittal concerning proposed amendments, Employment Judge Grewal refused applications to add direct race-discrimination allegations. Judge Grewal later refused to vary an unless order requiring a medical certificate and witness statement by 4 January 2013, and refused relief after the claims had been automatically struck out for non-compliance.

The Claimant appealed both decisions. The central issues were whether an application under rule 12(2)(b) suspended an unless order, whether relief should have been granted, and whether the refusal of the proposed amendments disclosed an error of law.

1. Both appeals were dismissed. The Employment Judge made no error of law in refusing to vary the unless order, refusing relief from its strike-out consequence, or refusing the amendment applications.

2. An application under rule 12(2)(b) of the Employment Tribunal Rules of Procedure 2004 to vary or revoke an unless order does not itself stay compliance. The rule affords an affected party an opportunity to make representations, including after expiry of the compliance period. It does not permit that party unilaterally to neutralise an order which remains binding unless varied or revoked. In any event, the order had not in fact been made under rule 12(2), because the Claimant’s representative had attended and made submissions when it was made.

3. Once an unless order has properly been made, its making has already required consideration of the seriousness and proportionality of the sanction. On a later application for variation or relief, the issue is whether there is a reason to vary the order or relieve against its consequences. Deliberate and persistent non-compliance is not a formal gateway, but describes conduct at the serious end of the relevant spectrum.

4. The Employment Judge was entitled to find that the Claimant knowingly, deliberately and defiantly chose not to serve a witness statement despite understanding the consequences. She had not offered substantial compliance, had adopted an unconstructive approach to case preparation, and further delay would imperil a further nine-day hearing and make the factual allegations harder to answer. The Judge had weighed the relevant matters sufficiently, even without using the word “proportionality”.

5. On amendment, appellate courts should respect case-management discretion and avoid over-analysing a tribunal’s reasons. Applying the approach in [1996] IRLR 661 and [2013] ICR 213, the proposed direct race-discrimination claims were substantial new causes of action, not relabelling. They would widen the period and scope of factual enquiry, require evidence on alleged race-based treatment and comparators, and materially alter the case to be defended. The Tribunal was entitled to take account of the Claimant’s informed earlier choice not to pursue such claims, the substantial delay, and prejudice through memory fade and additional preparation. Its refusal fell within its permissible discretion.

• Employment Appeal Tribunal: Both appeals were dismissed. The refusal to amend and the refusal to vary the unless order or grant relief from the resulting strike-out were upheld.
• Employment Tribunal: Employment Judge Grewal refused the direct race-discrimination amendments after a June 2012 hearing. In a written decision of 6 March 2013, she refused variation of the 10 December 2012 unless order and refused relief after the claims had been struck out on 4 January 2013.
• Earlier Employment Appeal Tribunal stage: An earlier appeal from Employment Judge Sage resulted in remission of the question whether the Claimant should be permitted to amend to include the direct race-discrimination allegations.