Patka v. British Broadcasting Corporation & Anor (PRACTICE AND PROCEDURE - Amendment), Court of Appeal - United Kingdom Employment Appeal Tribunal, April 12, 2018,  UKEAT 0190_17_1204
|Resolution Date:||April 12, 2018|
|Issuing Organization:||United Kingdom Employment Appeal Tribunal|
|Actores:||Patka v. British Broadcasting Corporation & Anor (PRACTICE AND PROCEDURE - Amendment)|
Appeal No. UKEAT/0190/17/DM
EMPLOYMENT APPEAL TRIBUNAL
FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8AE
At the Tribunal
On 26 February 2018
Judgment handed down on 12 April 2018
HER HONOUR JUDGE EADY QC
MR S PATKA APPELLANT
(1) BRITISH BROADCASTING CORPORATION
(2) MS L LANDOR RESPONDENTS
Transcript of Proceedings
PRACTICE AND PROCEDURE - Amendment
Application to amend - race discrimination - complaint of unequal pay - whether direct or indirect race discrimination
The Claimant - acting in person - had put his case of race discriminatory unequal pay as a complaint of direct discrimination, albeit relying on general statistical evidence in support. After taking legal advice, he subsequently sought to amend: to add details about a subsequent decision on his internal grievance; to add a claim of indirect discrimination in the alternative; to include a further basis for his complaint of direct discrimination. The ET permitted the application to amend in respect of the internal grievance but only to the extent this was background information; it otherwise refused the amendments, concluding these were not simply different labels but added substantively new causes of action and arguments that had been raised too late (the parties had fully prepared their respective cases on the basis of the claim as already pleaded) and had already led to the postponement of the listed Full Merits Hearing; in the circumstances, the balance of prejudice supported the refusal of the application. The Claimant appealed.
Held: dismissing the appeal
The ET permissibly understood the application to amend in respect of the internal grievance to have been limited to adding an update to the factual background; on this basis the Respondents had not objected to the amendment and it had been allowed. That was an entirely appropriate exercise of the ET's case management powers and there was no proper basis of challenge.
As for the indirect discrimination case, the ET was entitled to conclude this was not previously identified by the Claimant as part of his claim. Although the fact that it might still be in time was a potentially significant factor (Gillett v Bridge 86 Ltd UKEAT/0051/17 applied), the ET had permissibly taken the view that whether or not there was a continuing act could only be determined at the final Merits Hearing. It was, moreover, open to the ET to conclude that the different issues raised by the indirect discrimination claim meant the balance weighed against hearing that together with the existing direct discrimination claim, in particular given the prejudice caused to the Respondents.
Similarly, the ET had been entitled to see the new argument raised in respect of the direct discrimination claim as giving rise to substantively new issues for determination such as to cause unfair prejudice if this amendment was permitted. To the extent the Claimant was only seeking to make this amendment to explain how he argued that the burden of proof shifted to the Respondent, that remained open to him given he had always made it clear he intended to rely on the statistical evidence to this purpose.
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HER HONOUR JUDGE EADY QC
The appeal in this matter concerns an application to amend in what might be described as an equal pay case based on the protected characteristic of race. The underlying claim raises potentially interesting issues relating to a case of race-based pay discrimination but the present appeal is concerned with a refusal by the Employment Tribunal (``the ET'') to permit amendments to the claim - an exercise of judicial discretion on the part of the ET and thus a decision with which the EAT should not interfere unless it discloses an error of approach, can properly be characterised as perverse or failed to take account of that which was relevant or had regard to that which was irrelevant.
The appeal is pursued by the Claimant against the Judgment of the London Central ET (Employment Judge Baty sitting alone on 13 December 2016), sent to the parties on 25 January 2017. Both parties were represented by counsel before the ET: the Respondents appearing by Mr Linden QC, as now; the Claimant then represented by Ms Tether of counsel, but today appearing in person. By its Judgment, the ET allowed that the Claimant might amend his claim to add paragraphs 10 to 16 of his proposed amended grounds but refused leave to add additional paragraphs 17 to 25.
On the initial paper sift, the Claimant's appeal was considered by Soole J to disclose no reasonable basis to proceed. At a subsequent hearing under Rule 3(10) EAT Rules 1993, however, HHJ Shanks gave permission for this matter to continue to a Full Hearing on amended grounds of appeal, specifically: (1) whether the ET had failed to recognise that permitting the amendments at paragraphs 15 and 16 already included a complaint of indirect race discrimination; (2) whether the ET erred in not permitting an amendment to include a claim of indirect race discrimination relating to matters occurring before 31 October 2016 when that was already part of the Claimant's case; (3) whether the ET erred in not permitting paragraphs 18 to 20 of the amended grounds when the ``Danfoss'' arguments there raised (referring to the case Handels og Kontorfunktionaerernes Forbund i Danmark v Dansk Arbejdsgiverforening (acting for Danfoss)  IRLR 532 ECJ) merely addressed the burden of proof question and added no new claim.
The Respondents resist the appeal, largely for the reasons given by the ET but also referring to the procedural history since that decision.
The Relevant Background and the ET's Decision and Reasoning
The Claimant works for the First Respondent's World Service Languages unit, based in London. By his ET claim, lodged on 2 January 2016, he complained he had suffered pay related race discrimination since May 2010. Relying on information provided in response to a Freedom of Information Act request, he contended that World Service Languages staff were paid an average of £7,400 less than staff on the same grade working for Network News in London; specifically, at his level (SM2), the difference in average pay was more than £18,700 per annum. He believed the main reason for these pay differentials arose from the fact that 74.4% of World Service Languages staff in London were from black and minority ethnic backgrounds, whilst 80.2% of Network News staff were from white majority ethnic backgrounds.
The Claimant was representing himself when he presented his claim and continued to do so until he obtained assistance from Ms Tether between the second and third Preliminary Hearings before the ET; the present appeal is concerned with the ET's decision at the third Preliminary Hearing.
In responding to the proceedings, on 9 February 2016, the Respondents characterised the Claimant's claim as one of direct race discrimination (the Claimant had not previously attached a specific label to his allegation of ``discrimination'') and contended that pay at SM (senior manager) level was ``determined on an individual basis taking into account a number of factors including responsibility, experience, skills, the appropriate rate for the role taking into account competition from the market, existing salary and comparison to relevant peers''. While accepting the statistics referenced by the Claimant, the Respondents contended these were not drawn from truly comparable groups of employees.
An initial Preliminary Hearing took place before Employment Judge Glennie on 24 June 2016. During the discussion of the claim at that hearing, the Claimant referred to the Birmingham City Council equal pay claims, apparently drawing from his general understanding of the news reports relating to those cases. That said, although the Birmingham cases involved claims of what might be described as indirect pay discrimination, Employment Judge Glennie's note of the Preliminary Hearing recorded as follows:
``1. The complaint is of direct discrimination because of race. The Claimant gave the following further particulars of his complaint:
1.1. The complaint is of direct, not indirect discrimination. The allegation is that the First Respondent paid employees (including the Claimant) in World Service Languages in London less on average than their equivalents in Network News in London because the majority of them were not White British. The Claimant contrasts this with the employees in Network News, the majority of whom are White British. ...''
Employment Judge Glennie's record from the Preliminary Hearing then set out three specific allegations made by the Claimant of less favourable treatment in relation to salary, detailing the individuals he identified as being responsible for the three pay decisions that thus formed the basis of his...
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