Kumari v Greater Manchester Case Note

The Employment Appeal Tribunal (“EAT”) held that the Employment Tribunal (“ET”) was entitled to take into account the merits of a discrimination claim when refusing to extend time on just and equitable grounds and in refusing to allow the amendment of the claim

In Kumari v Greater Manchester NHS [2022] EAT 132, the EAT held that the assessment of the merits is a relevant consideration which the ET may take into account, in deciding whether to extend time for just and equitable grounds under section 123(1) Equality Act 2010 (“EqA”) or to allow the amendment of the claim, provided it is done so by reference to identifiable factors apparent at a preliminary hearing (“PH”) and taking into account the fact that the ET will not have all the evidence before it, and is not conducting a mini-trial during the PH.

One of the common pitfalls that litigants experience in the ET when bringing claims under the EqA is failing to adhere to the 3-month limitation period under section 123(1)(a) EqA. For that reason, litigants are often required to apply to the ET to extend time on “just and equitable grounds” under section 123(1)(b). Kumari is an interesting case as it illustrates that the ET is entitled to take into account the merits of a claim when determining whether to extend time on just and equitable grounds or to permit a new complaint to be added by way of amendment. It is also an interesting case as the EAT held that the ET was not required to provide advance notice to the Claimant, a litigant in person (“LiP”), that the merits would be considered in her application for the extension of time and amendment.

Facts

The Claimant was employed by the Respondent from August 2017 and presented her notice of resignation in May 2019. Her effective date of termination was on 11 August 2019.

On 16 January 2020, (i.e. more than 2 months after the 3-month limitation period had expired), the Claimant started the ACAS Early Conciliation process and obtained the ACAS EC Certificate on 27 January 2020. On the same day, the Claimant presented her claim form as a LiP, claiming constructive unfair dismissal and race discrimination.

The Claimant provided a short narrative in her claim form, complaining of a series of incidents which occurred during her employment, which she maintained amounted to race discrimination or harassment related to race. She also referred to an incident after the termination of her employment on 8 October 2019, when she had witnessed a former colleague driving to her street and stopping their car by the Claimant’s car, before driving off (“the 8 October incident”). Following that incident, the Claimant complained to the Respondent’s Human Resources department.

The Respondent’s Grounds of Resistance contended that all of the Claimant’s complaints were out of time and lacked particulars. In any event, the Respondents denied that the Claimant was discriminated against on grounds of race or was constructively dismissed. The Respondent noted that the Claimant had raised a formal complaint on 8 October 2019, following which there was a thorough investigation which found no evidence of discrimination.

A case management hearing took place on 15 April 2020 where the ET referred to some of the post-employment complaints from the Claimant and noted that the Claimant was now alleging that the last act of discrimination was on 9 December 2019, which was the date in which the Respondent’s Head of Healthcare, Ms Press, had written to the Claimant with the outcome of the investigation into the matters raised in her letter of 8 October 2020.

In that hearing, directions were made for the Claimant to fully particularise her complaints, given that the ET had noted that the allegations raised by the Claimant were vague. The Claimant provided further and better particulars on 1 May 2020, which provided several pages of the various incidents complained of during her employment. It then referred to the 8 October incident and the Respondent’s letter of response from 9 December 2019 as being the last act of discrimination (although she had not referred to this in her Particulars of Claim).

In a PH on 14 September 2020, the ET summarised the gist of the Claimant’s allegations of bullying by a colleague referred to as “A”. It referred to the Claimant’s case that she had resigned when she could no longer tolerate this treatment. The ET further noted that the Claimant had not complained sooner of this treatment (whether to the Respondents or to the ET) because she was in poor mental health. However, the Claimant did not seek any medical advice or adduce any medical evidence to the ET. The ET further noted that there were no references to race in the 8 October 2019 letter and that, upon receiving Ms Press’ letter from 9 December 2019, the Claimant contacted the Citizen’s Advice Bureau who had referred her to ACAS to start the EC process.

The ET held at the 14 September 2020 PH, that the unfair dismissal claim was out of time and that it had been reasonably practicable for the Claimant to have brought the claim on time. It also held that, in relation to the race discrimination complaint, it was not just and equitable to extend time. The ET noted that the Claimant had advanced a sufficiently cogent case about the alleged treatment she faced during and after her employment, but that there was no link between the “act” and the letter the Claimant received on 9 December 2019. The ET noted that the Claimant had no previous dealings with Ms Press and failed to cogently explain why she saw the 9 December letter as discriminatory in itself, far less why that letter formed part of the same discriminatory act as A’s conduct.

It followed that the final date of the continuing act was 7/8 October 2019, which meant that the ACAS process should have commenced on 6/7 January 2020. The claim in respect of all those earlier alleged acts of discrimination was therefore out of time.

One reason why the ET did not grant an extension of time was because the merits of the claim were weak. The ET noted that it was difficult to discern anything which links the treatment the Claimant allegedly received with the protected characteristic of race. The ET also took into account the prejudice the Respondent would face if the claim were to proceed, such as incurring significant costs in attempting to establish sufficient details of the earlier alleged acts of discrimination for them to sensibly respond to the claim. The ET also noted that, given there was little documentary evidence, the cogency of the evidence would be affected by the time a final merits hearing would take place.

The ET also did not allow the Claimant to amend her claim to include the 9 December 2019 letter. The ET noted that the proposed amendment was a weak claim, and that the Respondent would face the inconvenience and cost of dealing with the proceedings in circumstances where, absent the amendment, all the other matters would have fallen away due to the earlier discriminatory acts being time-barred.

The Claimant then applied for reconsideration of the ET’s decision. One of the points raised in the reconsideration application was that the Claimant did not prepare and present the evidence about the complaints at the PH as she did not appreciate that the merits would be considered as part of the hearing. The ET refused to reconsider its Judgment. The ET noted that the Claimant had the opportunity during her evidence at the PH to expand her case. It further noted that the concern was not whether the Claimant could prove the underlying allegations but whether she would be able to link the treatment complained of to her race, which was not supported by the evidence before the ET during the PH.

The Claimant appealed to the EAT.

Legal background

Just and equitable

Section 123(1)(b) EqA provides that, if a Claimant fails to bring a claim within the 3-month period set out in section 123(1)(a), the ET may disapply the limitation period if it “thinks just and equitable”. The words “just and equitable” are deliberate, as Parliament had intended to provide to the ET the widest possible discretion. The Court of Appeal in Abertawe Bro Morgannwg University Health Board v Morgan [2018] EWCA Civ 640 noted at paragraph 17 that “[u]nlike section 33 of the Limitation Act 1980, section 123(1) of the Equality Act does not specify any list of factors to which the tribunal is instructed to have regard, and it would be wrong in these circumstances to put a gloss on the words of the provision or to interpret it as if it contains such a list”.

Given the broad discretion afforded to the ET, the EAT will only interfere with the ET’s exercise of section 123(1)(b) EqA if it can identify an error of law or principle which makes the decision of the ET plainly wrong; Robertson v Bexley Community Centre [2003] EWCA Civ 576.

Although section 123(1)(b) confers a broad discretion, the starting point is that time limits should be strictly applied. There is therefore no presumption that the ET should exercise its discretion in cases where a claim is out of time, unless the Claimant can persuade the ET to disapply the 3-month limitation period. The decision to extend is the exception, not the rule; Robertson at paragraph 25.

The burden to persuade the ET that the 3-month limitation period should be disapplied is on the Claimant. The Claimant should address the reasons for the delay, the merits of the claim itself and the prejudice that the Claimant will suffer if the discretion is not exercised.

In Rathakrishnan v Pizza Express [2016] IRLR 278, HHJ Peter Clark allowed an appeal and remitted the application for a just and equitable extension where the ET failed to consider, amongst other relevant factors, the potential merits of the claim. However, the judge held that the ET should not conduct a trial within a trial and so the assessment of the merits will necessarily involve an assessment at a high level.

Amendment of claim

The ET can grant permission to amend the Particulars of Claim under its general case management powers. When the discretion to grant an amendment is invoked, the ET should take into account all the circumstances and should balance the injustice and hardship of allowing the amendment against the injustice and hardship of refusing it. Selkent Bus Co Ltd v Moore [1996] IRLR 661 identifies the following relevant circumstances (on a non-exhaustive basis):

·       The nature of the amendment – is the amendment in question a minor one (e.g. correcting clerical errors, additions of factual details to existing allegations) or a major one which substantially alters the pleadings, such as by adding new factual allegations which change the basis of the existing claim?

·       Time limits – is the new complaint or cause of action out of time? If it is out of time, the ET should consider whether the time limit should be extended under the applicable statutory provision, e.g. under section 123(1)(b) EqA.

·       Timing and manner of the application – although there are no time limits laid down in the ET Rules for the making of amendments, the ET is entitled to take into account whether the application to amend was delayed and consider why the litigant is now seeking to make such amendment. Questions of delay, as a result of adjournments, and additional costs, particularly if they are unlikely to be recovered by the successful party, are relevant.

EAT decision

The Claimant appealed on the basis that she said the ET erred, in applying the test in section 123(1) EqA and dismissing her late application to amend, by having regard (or excess regard) to the merits of the claim without having found that the claim had met the ‘no reasonable prospects of success’ threshold and/or without the Claimant, who was a LiP, having advance notice that the merits would be considered as part of the assessment and that she should come to the hearing prepared to demonstrate that the claim had sufficient prospects of success.

Section 123(1) EqA 

The EAT noted that it is undisputed that the ET has a broad discretion under section 123(1) EqA and is not restricted to an exhaustive list of factors that it must regard as relevant or irrelevant. It follows that the ET is not precluded from considering the merits of the claim even if the ET is not in a position to say that the claim is so weak that it has no reasonable prospects of success.

Even if the merits are assessed as better than no reasonable prospect, or even found to be meritorious at the final merits hearing (subject to the limitation point), it does not follow that limitation will always in such cases be extended, becausethe potential merits of the claim may be outweighed by other considerations, such as the prejudice that the Respondent would face if the ET was to extend time.

Further, the ET often does not have all the evidence at a PH to determine whether a complaint is meritorious. The ET should therefore take real care when seeking to assess the merits of a prospective claim on an occasion where the ET does not have all the evidence, particularly in discrimination claims. However, this does not necessarily mean that it will be impossible in every case for the ET at the PH to fairly assess the prospects of success to some degree and determine whether it has a particular weakness or difficulty.

In appropriate cases, the ET may take into account its assessment of the merits at large, provided that the ET takes into account the fact that it won’t have all the evidence before it and that it identifies particular reasons or features that properly supports its assessment at the PH. In cases where the ET is not in a position to consider the matter with care, it should not take into account the merits as weighing against the Claimant.

Late application to amend

In relation to late application to amend, there is no prior authority which requires the ET to hold that it is, as a matter of law, wrong to take the assessment of the merits into account where they are not found to have no reasonable prospects of success. The ET should approach this with caution and identify a reasoned basis if it forms a general view of the strength of the proposed complaint, bearing in mind that it does not have the full evidence before it, as well as the need to avoid a mini-trial at the PH.

Access to justice considerations

The EAT also held that it is not necessarily always unfair for the ET to fail to warn a LiP that some assessment of the merits may be conducted when it decides whether it is just and equitable to extend time and/or grant a late amendment to the claim.

The onus is on the Claimant to advance their case as to why it is just and equitable to extend time or why the proposed amendment should be granted. The EAT noted that the assessment of the merits at a PH cannot involve consideration of all the evidence for the purposes of determining whether it is just and equitable to extend time or in relation to a late application to amend the claim. HHJ Auerbach commented at paragraph 92 that “[w]hat is required…is that a party has a fair opportunity to advance their case and to respond to their opponent’s case. Indeed, in relation to applications to amend, which are matters of case management, it is not necessarily always essential to have a hearing, although, in some cases, it may be concluded that in order fairly to dispose of the application a hearing is required”.

The judge also commented at paragraph 93 that where a Claimant advancing an argument to extend time and/or permit the late application to amend (or a Respondent seeking to oppose such applications) “considers that there is a key piece of evidence…which points strongly or uncontrovertibly to a particular conclusion on the prospective merits, there is nothing to stop that party tabling that document to the tribunal. But we do not consider that that means there is an obligation on the tribunal specifically to warn a litigant in person in every case that some assessment of the merits might be made.”

The reason why the ET does not have a specific obligation to warn LiPs in every case is because of the fact that the ET’s function is not to provide legal advice to LiPs or to assist them in developing their case. HHJ Auerbach also noted that the ET “could also send a wrong signal if a litigant in person was given the impression that the hearing would be a suitable occasion for all of the underlying evidence, or swathes of it, to be placed before the tribunal, when the tribunal will be neither required, nor in a position, to consider all of the evidence, or to make findings of fact.”

A safeguard that the ET should maintain when dealing with LiPs is to consider what particular directions may be needed, such as to direct the Claimant to set out particular points that they will rely on in support of their application. However, HHJ Auerbach warned that there is no “one right approach to such matters of case management; and, ultimately, the question…is…whether each side, in fact, had a fair opportunity to put its case at the hearing itself, before the tribunal came to its decision.”

Conclusion reached by the EAT

On the facts of the case, the Claimant had informed the judge that her resignation letter did not refer to race and nor did the 8 October letter. The ET had noted that there was nothing on the face of the claim itself or the particulars which linked the alleged bullying to her race. It also noted that there were no grounds to link Ms Press’ letter to the previous conduct and that the Claimant was unable to cogently explain why she saw the response to her complaint as an act of discrimination.

The ET had formed the view that the claim appeared to be very weak given that it was difficult to discern how anything in the alleged treatment was linked to the Claimant’s race. The ET had also confirmed with the Claimant whether the resignation letter or the 8 October letter had mentioned race. What the Employment Judge was doing was to see whether she had missed anything that might be found in those letters and which could positively support the Claimant’s assertion that the treatment she faced was related to race. The ET had also noted the heavy prejudice that the Respondent would face in dealing with a claim dating back some two years, given the nature of the evidence, which was mostly oral.

The ET also took into account how, in the context of the late application to amend, the proposed complaint was weak and peripheral (or parasitic upon) the main complaints that the Claimant sought to advance, which was about her alleged treatment during her employment and the 8 October incident.

It followed that the ET had given the Claimant a fair opportunity to put her case and that these matters were then properly weighed in the balance by the judge.

What to take away

Kumari illustrates how the ET has a broad discretion in considering whether to grant an extension of time or to allow an amendment to the claim, such that it may take into account the merits of the claim. Although Kumari might be viewed as a harsh decision for LiPs, the judgment makes clear that the ET should make use of directions to ensure that LiPs are given a fair opportunity to advance their case. As noted by HHJ Auerbach, the ET should make fair allowances to unrepresented parties but its function is not to advise the LiP. Moreover, there is no ‘one size fits all’ approach in how the ET should make fair allowances to an unrepresented party, which explains why the HHJ Auerbach was not prepared to conclude that the ET should have a specific obligation to warn a LiP that the assessment of the merits may be conducted in any application under section 123 EqA or in a late application to amend.

The EAT decision can be accessed here.