Haziz Rahim v The Big Word & Anor

The Employment Appeal Tribunal allowed grounds 1 and 2 of the appeal because the Employment Judge had not appreciated that the claimant had made a written application to amend the ET1 (dated 2 September 2021) in relation to factual matters already set out in the ET1 attachment. The Tribunal held that the amendment ought to have been considered before deciding the jurisdictional/time-limit issues because, if allowed, it could materially change the parameters and the date from which time ran. The EAT remitted the matter to the Employment Tribunal to consider the amendment and any consequent effect on time limits. Grounds 3 and 4 were not determined by the EAT to avoid prejudicing the Employment Tribunal’s reconsideration of amendment and extension of time. Ground 5 (challenge to the identity of the correct respondent) was dismissed as a perversity challenge because there was evidence on which the Employment Judge could properly have concluded that the second respondent was the correct respondent. The judgment identifies statutory references to protected disclosure (ss. 43A and 103A Employment Rights Act 1996) and engages procedural principles on amendment and limitation (including reference to Cox v Adecco and Selkent principles).

Background and parties. The appellant (claimant) brought multiple employment claims against two respondents, including disability discrimination, religion or belief discrimination, detriment/dismissal for protected disclosure, and claims for notice and holiday pay. The ET1 included a lengthy 204-page attachment. The Employment Tribunal (Judge Barrowclough) heard a two-day preliminary hearing (16–17 September 2021) ordered to identify the claims and decide jurisdictional/time-limit issues. The Employment Judge concluded the claims were presented out of time (effective date of termination identified as 12 March 2020), struck out the claims as time-barred and found the second respondent was the correct respondent.

Nature of the appeal / relief sought. The appellant appealed to the Employment Appeal Tribunal seeking to overturn the strike-out/time-bar decision and to have the tribunal consider an amendment application and, if appropriate, extend time or otherwise allow the claims to proceed.

Issues framed by the EAT. The amended grounds raised and considered on the appeal were:

• Whether the Employment Judge failed to identify the issues properly before striking out the claim (ground 1);
• Whether the Employment Judge failed to consider a written amendment application dated 2 September 2021 before striking out (ground 2);
• Whether the judge erred in fixing the effective date of termination and finding that the claims were presented out of time (ground 3);
• Whether the judge applied the correct approach to the just and equitable discretion to extend time (ground 4);
• Whether the judge was wrong to find the second respondent was the correct respondent (ground 5).

Court’s reasoning and conclusions. The EAT accepted that the Employment Judge faced an exceptionally large and poorly-pleaded bundle and that the claimant repeatedly sent late material. Nonetheless, the EAT found persuasive evidence that the claimant had applied in writing to amend the claim prior to the hearing and that the ET Judge appeared unaware of that application and therefore did not address it. Because the amendment relied upon factual matters already in the ET1 attachment (including alleged continuing acts and post-termination communications), the EAT concluded that the Employment Tribunal should have considered the amendment before determining time-bar and limitation issues; allowing or refusing the amendment could materially affect the date from which time ran and the scope of the claims. The EAT therefore allowed grounds 1 and 2 and remitted the case to the Employment Tribunal to consider the amendment under the Selkent/Cox principles and to reconsider any extension of time. The EAT declined to decide grounds 3 and 4 to avoid pre-empting the Employment Tribunal’s fresh exercise of discretion following any amendment. Ground 5 (respondent identity) was dismissed because the EAT found no basis to overturn the judge’s factual finding: the perversity threshold was not met. The EAT also commented on the inefficient and disproportionate presentation of documentary material and emphasised that tribunals are not resourced to read excessive documentation.

The appeal was allowed in part. Grounds 1 and 2 were allowed because the Employment Judge had not appreciated and therefore had not considered a written amendment application that had been made before the hearing; the question of amendment could materially affect time-limit issues. Grounds 3 and 4 were not determined by the EAT so as not to pre-empt the Employment Tribunal’s reconsideration of amendment and any subsequent exercise of its discretion. Ground 5 was dismissed: the EAT found there was evidence on which the Employment Judge could conclude that the second respondent was the correct respondent and the perversity threshold for overturning that factual finding was not met. The matter is remitted to the Employment Tribunal to reconsider the amendment application and any consequences for time limits, to be reheard (preferably by the same judge unless impracticable) as directed by the Regional Employment Judge.

Appeal from the Employment Tribunal (East London) decision of Employment Judge Barrowclough following a preliminary hearing (16–17 September 2021). The Employment Appeal Tribunal gave judgment on 12 December 2023 ([2023] EAT 171) allowing grounds 1 and 2, dismissing ground 5, declining to determine grounds 3 and 4, and remitting the matter to the Employment Tribunal for reconsideration.