Queensway Surgery v Jayatilaka UKEAT/0046/11/SM

Subjects: Amendment to ET1 – Addition of Reasonable Adjustments Claim

C presented an ET1 complaining of unfair constructive dismissal on 11.09.09. On 12.01.10 she wrote to ET asking to amend her claim to include a disability discrimination claim. The ET allowed the amendment and R appealed.

Facts

C was a GP employed by R. She suffered from neurosarcoidosis. The ET1 stated that C suffered from neurosarcoidosis and diabetes. It also alleged that as a result of her increased workload she did not even have time to have a sandwich and could not therefore eat regularly, which is essential for persons suffering from diabetes. It made specific complaint about her manager’s conduct and about her workload in June 2009. Despite these assertions the ET1 did not make a claim for disability discrimination. C applied in January 2010 to add claims under the DDA 1995 which included a failure to make reasonable adjustments in respect of her increased workload.

Held

HHJ Clark allowed the appeal in respect of a broad claim that R had failed to make adjustments over a period from 2002 to May 2009. The ET judge had described the addition of a claim in respect of this period as a re- labeling exercise. However, the allegations of discrimination over this long period of time were not referred to in the ET1 and the ET judge had not given any indication that he would be prepared to extend the time limit to allow the claims to be brought. HHJ Clark followed the approach of the Court of Appeal in Housing Corporation v Bryant [1999] ICR 123 and held that, in the absence of a causal link between the primary facts pleaded and the DDA 1995, the decision to allow the amendment on the basis that it was a mere relabeling exercise was wrong. However, HHJ Clark refused the appeal in part and upheld the ET’s decision to allow an amendment to the ET1 to add a claim of a failure to make reasonable adjustments in June 2009. The factual matters relied upon for the new discrimination claim had been raised in the ET1 but it was immaterial whether one called the amendment a relabeling exercise or a new cause of action because the ET judge had indicated that he would have granted an extension of time in any event. HHJ Clark agreed with the ET’s decision to extend time in respect of the allegations in June 2009. Since no new factual matters were relied upon the extension of time would not increase the complexity or length of the hearing and no new evidence would be required. The balance of justice therefore required that C be permitted to make the amendment.

Comment

The most interesting part of this case is HHJ Clark’s approach to the question of whether the addition of the new DDA claims was merely a relabeling exercise. Even though no new facts were relied upon by C and no new evidence was required, HHJ Clark held that the addition of the DDA claims was not a relabeling exercise because there was no causative link between the primary facts and the consequences under the DDA that were contended for by way of an amendment.