Further Clarification About When a Claimant Can Add New Claims to Existing Employment Tribunal Cases
In the case of Reuters Ltd v Cole, the Employment Appeal Tribunal (EAT) considered whether the employee could amend his claim to include allegations of direct disability discrimination.
His original claim alleged discrimination arising from disability, a different type of disability discrimination.
When Can a Claim Be Amended?
It is well established that an Employment Tribunal (ET) must consider all the circumstances of a case before deciding whether an application to amend a claim should be granted. This will involve weighing up the potential injustice and hardship caused to each party by granting, or not granting, the application and bearing in mind relevant circumstances, such as the timing of the application, nature of the amendment and the manner in which the application was submitted.
A distinction should be drawn between applications which seek to 're-label' the existing claims on the basis of the same facts already pleaded, and those which add new claims entirely. Whilst it depends on the circumstances, in most cases a simple 're-labelling' is more likely to be granted than the addition of a new claim relying on new factual allegations.
If an employee is seeking to add a new claim, the ET will take into account whether it is out of time or not. However, existing case law is not clear on whether the time limit question has to be determined at the time the application to amend is made, or whether it can be put off until the full merits hearing.
The Facts of Mr Cole's Case
Mr Cole is employed with Reuters Ltd. His job title is Assistant Editor.
Since January 2016, Mr Cole has been on sick leave from his job due to his disability, which relates to a chronic depressive illness. On 3 June 2016, he submitted a claim to the ET for failure to make reasonable adjustments and discrimination arising from disability.
The case was then stayed to allow Reuters to hear Mr Cole's grievance.
On 23 August 2017, shortly before a preliminary hearing was due to take place, Mr Cole applied to amend his case to include a claim for direct disability discrimination, claiming that the facts associated with this new claim were broadly the same as the facts already set out in his original claim. In Mr Cole's view, the addition of the new claim amounted to no more than a 'relabelling' exercise.
Mr Cole argued that the amendment was being requested so late for reasons relating to his disability, in particular the difficulty he had in providing his solicitor with instructions.
The ET granted Mr Cole's application, accepting that it was no more than a re-labelling exercise.
Reuters Ltd appealed the decision.
The EAT's Decision
The EAT allowed the appeal, and held that the addition of the claim for direct discrimination amounted to more than a 're-labelling exercise' and the EAT judge should have gone on to consider all the circumstances of the case before deciding whether or not to allow the amendment.
The EAT found that the adding of a direct discrimination claim would require a wider factual enquiry, for example whether Mr Cole had been treated less favourably than a comparator. The legal test to show direct discrimination was different to that of discrimination arising out of disability, and required different inferences to be drawn and different facts to be presented.
The EAT decided that the application to amend the case should be sent back to the ET to be considered again. The EAT also commented that whilst the new claim Mr Cole wanted to bring was out of time being a relevant factor, it was not necessary for the ET to reach a final view at the preliminary hearing stage.
Best Practice
This decision will make it more difficult for Claimants to add an additional type of discrimination after a claim has been issued. Whilst this may well be good news for employers, it does raise the possibility that Claimant's will add more elements to their initial claims on the basis that it is easier to take claims away than add them. This might result in increased costs for employer's at the start of the litigation process.