O Rahman v Ford Retail Limited t/a Trustford

An employment tribunal must decide whether a proposed complaint was factually raised in the original claim before deciding whether an amendment is required. A complaint of victimisation requires factual material identifying the alleged protected acts, even if legal labels are unnecessary.

Where permission to amend is required, the tribunal must apply the Selkent balancing exercise. It must take account of material contained in a claimant’s further-information document, including whether that document identified the facts of the proposed complaint. Failure to address that relevant consideration is an error of law. A later determination of direct discrimination does not necessarily preclude a distinct victimisation complaint.

The claimant had brought complaints of direct race discrimination. After providing a lengthy further-information document while unrepresented, he later sought permission to amend his claim to add victimisation complaints. The proposed protected acts were complaints to HR and acts in the grievance and grievance-appeal process alleging race discrimination.

Employment Judge Goodrich held that the victimisation complaints were not raised in the claim form and refused permission to amend. The claimant appealed only that refusal. The central issue was whether the judge had properly considered the further-information document when applying the amendment discretion.

1. Appeal allowed in part and remitted. The Employment Appeal Tribunal upheld the conclusion that the original claim form did not factually raise victimisation complaints or identify protected acts. Its clear thrust was direct race discrimination. References to approaching HR and bringing a grievance did not state that the claimant had alleged internally that the treatment was because of race.

2. Permission to amend was therefore required. In exercising that discretion, the tribunal had to balance the relevant prejudice and decide where the balance of justice or injustice lay, following Selkent Bus Co Ltd v Moore [1996] ICR 836. The claimant’s previous lack of representation, the timing of the application and the respondent’s potential prejudice were all matters for the tribunal’s evaluative judgment.

3. However, the judge erred by failing to consider, or to explain his conclusion on, whether the further-information document identified the factual basis of the proposed protected acts. That was material to the amendment discretion. Paragraph 63 of that document stated that the claimant had said he and his partner were being discriminated against, in the context of complaints to HR, a grievance and an appeal. Read with the wider material, it necessarily identified an allegation of race discrimination sufficient to amount factually to protected acts.

4. This finding did not compel the grant of permission. The amendment application was remitted for fresh determination on that footing. The later merits findings dismissing direct race discrimination did not necessarily defeat the proposed victimisation complaints. In particular, a finding not necessary to the earlier decision could not found res judicata or issue estoppel. The remitted tribunal was directed to disregard the direct-discrimination merits outcome, while considering the specified proposed victimisation allegations and any relevant changed circumstances, including witness availability.

• Employment Appeal Tribunal: allowed the appeal in part and remitted the amendment application for fresh consideration: [2023] EAT 55.
• Employment Tribunal: Employment Judge Goodrich held that permission was required to add victimisation complaints and refused permission to amend.