Reuters Ltd v Cole

An amendment adding a direct disability discrimination claim under section 13 of the Equality Act 2010 is not a mere relabelling of an existing section 15 claim where it requires further factual findings on less favourable treatment, comparison, and causation by reference to disability.

Mere relabelling is confined to adding a legal label to facts already pleaded. Where the amendment advances a new claim, the Employment Tribunal must exercise its discretion, including by addressing limitation and any just and equitable extension of time.

The Claimant, a disabled employee, presented claims for discrimination arising from disability and failure to make reasonable adjustments. After the claim had been stayed during an internal grievance process, he applied to add direct and indirect disability discrimination claims.

The Employment Tribunal granted the amendment on the basis that it relied on no new facts or matters. Reuters appealed only the addition of the direct discrimination claim. The central issue was whether a section 13 claim was merely a relabelling of the pleaded section 15 claim, or a new claim requiring consideration of discretion and limitation.

1. Appeal allowed. The Employment Judge erred in treating the proposed section 13 claim as a mere relabelling of the existing section 15 claim.
2. Under Selkent, relabelling concerns the addition or substitution of legal labels for facts already pleaded. The discussion in Abercrombie of the extent of any difference in factual enquiry concerns the discretionary amendment exercise where the amendment is not mere relabelling.
3. A section 13 claim requires a more demanding factual enquiry than a section 15 claim. It requires less favourable treatment by comparison with others and treatment because of disability. A section 15 claim concerns unfavourable treatment because of something arising in consequence of disability, subject to its distinct statutory conditions.
4. The pleaded claim was framed to establish section 15, not direct discrimination. It did not expressly or implicitly allege treatment because of disability. Any inference establishing the additional ingredients of section 13 would be a new inference of fact. The facts sufficient for section 15 would therefore not suffice for section 13.
5. The amendment was a new claim made outside the primary three-month period. The Tribunal had to exercise its discretion, considering the greater factual enquiry, limitation, and whether it was just and equitable to extend time under section 123 of the Equality Act 2010. The Judge had not undertaken that exercise because she had accepted the relabelling submission.
6. The application was remitted to Regional Employment Judge Taylor, rather than a fresh Tribunal. The parties could adduce further evidence and submissions. The EAT indicated that, on the conflict of EAT authority, it would follow the approach that an applicant need show only a prima facie case on limitation when seeking amendment, but left the timing question for the Judge after submissions.

• Employment Appeal Tribunal: allowed Reuters' appeal and remitted the amendment application to the same Employment Judge.
• Employment Tribunal: Regional Employment Judge Taylor granted permission on 29 August 2017 to add direct and indirect disability discrimination claims, on the basis that no new facts or matters were relied upon.