Appeal No.UKEAT/0203/05/LA 
& UKEAT/0204/05/LA

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 21 December 2005

Before
HIS HONOUR JUDGE RICHARDSON
SIR WILLIAM MORRIS KBE OJ

MR T MOTTURE

DR A BANERJI	APPELLANT

GLOUCESTERSHIRE HOSPITALS NHS TRUST	RESPONDENT

Transcript of Proceedings

JUDGMENT

		
	APPEARANCES

For the Appellant	MS HOLLY STOUT
(Of Counsel acting via the Free Representation Unit)
	
For the Respondent	MR JULIAN HOSKINS
(Solicitor)
Messrs Bevan Brittan Solicitors
35 Colston Avenue
Bristol
BS1 4TT	

SUMMARY
Practice and Procedure – amendment and costs
Race Discrimination - victimisation

Tribunal ought to have allowed an amendment to claim victimisation.  Tribunal had a power under the 2001 Rules to offer out of pocket expenses, not including lost wages (except indirectly via regulation 14(1)(b)).

HIS HONOUR JUDGE RICHARDSON

1.	This is an appeal by Dr Amitabha Banerji against certain judgments and orders of the Employment Tribunal sitting in Bristol in January 2005.  There has already been a preliminary hearing of the appeal at which HHJ Ansell dismissed certain grounds but gave directions for a full hearing of three grounds.  

2.	Those grounds may briefly be described as follows.  Firstly, whether the Tribunal erred in law in refusing Dr Banerji leave to amend his claim to allege racial harassment and victimisation.  Secondly, whether the Tribunal erred in law in refusing Dr Banerji permission to rely on certain paragraphs of a further statement served in January 2005.  Thirdly, whether the Tribunal erred in law in refusing an application for costs of an aborted 3-day hearing which was adjourned in January 2005 because the Trust’s representative, Mr Hoskins was unable to attend on the first day.

3.	In order to explain these issues it is necessary to consider the course of proceedings.  This can be done really in three stages.  

First stage – the Originating Application
4.	Dr Banerji was employed by Gloucester Hospitals NHS Trust (“the Trust”) as a doctor in its obstetric and gynaecology department from 23 December 2002 until 22 June 2003 on a fixed term contract which was not renewed.  Dr Banerji presented his complaint by an Originating Application dated 18 September 2003.  The Originating Application complained that the non-renewal of his contract was due to race discrimination.  The Trust says that non-renewal was due to concerns about his relationship with his colleagues  following complaints.  
5.	In his Originating Application Dr Banerji says there were problems with several midwives and other members of staff.  He says that staff were being rude, demeaning and dismissive towards him and this behaviour was discriminatory.  He says he complained to the Trust’s Clinical Director and Deputy Director of Human Resources about it; finally writing to the Clinical Director on 20 May, saying that in his opinion certain staff had treated him rudely because he was a foreigner.  He says alternatively that he was treated as he was by reason of reporting concerns about certain doctors not properly carrying out their duties and compromising patient health.  

6.	Under the heading asking for details of the type of complaints the applicant wished the Tribunal to consider, Dr Banerji’s then representative, the BMA, by its Advocacy Unit said, “Race discrimination, unfair dismissal for protected disclosure”.  Within the Originating Application there are clearly causes of action, firstly for race discrimination arising out of the rude, dismissive and demeaning behaviour of staff towards him; secondly for race discrimination arising out of the non-renewal of his contract; and thirdly for automatic unfair dismissal for making a protected disclosure.  

7.	Less clear was the extent to which the Originating Application intended to rely on victimisation contrary to section 2 of the Race Relations Act 1976.  But it is right to say that the Originating Application referred to Dr Banerji’s complaints to the Clinical Director and the Deputy Director of Human Resources and also to the letter dated 20 May.

Second Stage – the Main Witness Statement
8.	The Tribunal gave directions on 19 November 2003 for exchange of witness statements.  A full hearing fixed for 3 days was postponed to enable Dr Banerji to find solicitors.  A further hearing was fixed for May 2004.  In May 2004 solicitors then acting for Dr Banerji served a witness statement containing further allegations.  The full hearing was postponed on the Trust’s application because the witness statement contained allegations which the Trust regarded as new.  The Tribunal made an order that this witness statement stand as an amendment to the Originating Application.  

9.	It is therefore necessary to see what this amendment added to Dr Banerji’s case.  First, it was supportive of the causes of action already set out in the Originating Application.  There were details of the rude, dismissive and demeaning behaviour relied on and of the protected disclosures; some of the allegations were highly specific, others very generalized.  Secondly, the statement did allege in reasonably clear terms that at the meeting with the Clinical Director and again with the Deputy Human Resources Director, Dr Banerji alleged that the rude, dismissive and demeaning treatment was on racial grounds.  See, in respect of the first meeting, paragraphs 20-21 of the statement, in respect of the second meeting paragraph 29 of the statement.  

Third Stage – Events in January 
10.	Following the adjournment in May 2004 the full hearing was again postponed in September.  This time due to the illness of a Trust witness.  It was in due course re-fixed for 3 days commencing on 24 January 2005.  By a letter dated 11 December 2004, Dr Banerji applied for leave to amend his Originating Application.  He said merely that he wished the Tribunal to include complaints of racial harassment, victimisation, and breach of contract within his original application.  He did not set out the grounds for those allegations.  He said they should have been included in his original claim but the BMA did not do so.  He also applied in the same letter for an adjournment so that he could find solicitors – his present ones having refused to represent him.

11.	The application to amend was listed to be dealt with at a Case Management Discussion on 4 January 2005.  Dr Banerji did not take part in this.  The Chairman, Mr Sara, refused the application to amend giving the following reasons:

“3. The application to amend states that he also wishes to claim racial harassment, victimisation and breach of contract. The allegation of racial harassment is not new: There are already allegations of alleged racist comments and there is no reason why any such matters should not be dealt with on the existing pleadings.
4.	As to the claims of victimisation and breach of contract, it is the claimant's own case that these causes of actions were consciously not pursued by the claimant on the advice of his then solicitors. I have no reason to think that this advice was wrong.
5.	As to the claim of victimisation (presumably under s. 2 Race Relations Act 1976), I consider it would be wrong to allow an amendment to add such a claim at such a late stage, especially as the documents before me do not seem to indicate that he had made a specific complaint of racial discrimination.  However, if it emerges during the hearing that there is evidence for such a claim it would be open to the claimant to renew his application to amend during the hearing.”

12.	There was a further Case Management Discussion on 18 January 2005.  Mr Sara had also refused Dr Banerji’s application for an adjournment of the January hearing and the further Case Management Discussion seems principally to have been devoted to this question.  However, when refusing the application for an adjournment, Mr Tipple, the Chairman, directed that if the Claimant wished to rely on a revised or different statement of evidence he must serve that on the Trust by Wednesday 19 January.  The Chairman did not give him leave to rely on a revised or different statement; he simply ordered that if the Claimant wished to rely on one he must serve it, which would give the Trust an opportunity to consider it before the hearing.  

13.	In the event Dr Banerji served a further witness statement somewhat late on 21 January 2005.  We will return when we come to deal with the individual Grounds of Appeal to the disputed content of this witness statement.  Suffice it to say for the moment that there are some minor amendments and some new quite lengthy passages of material.  The statement is signed and dated 24 July 2004 but was not served until 21 January 2005.  Dr Banerji says that he always wished the full content of the statement to be served and did not realize until that date that it had not been.

14.	On 24 January most unfortunately the Trust’s representative was unavailable.  Mr Hoskins had arranged to return from Geneva the previous day but the airport had been shut and his flight was cancelled.  The tribunal adjourned the case against Dr Banerji’s objection.  The Tribunal on this occasion made two orders about which Dr Banerji complains in this appeal.  They are as follows:  

“2.	Despite the Claimant's failure to comply with the precise terms of the tribunal's Interlocutory Order of 19th January 2005, the Claimant has leave to adduce evidence as set out in his Statement signed on 23rd July 2004 and served on the	tribunal on 21st January 2005, save that the following paragraphs may not be relied on –
•	Paragraphs 79 to 83
•	Paragraphs 100 to 104 and 106 to 107
•	Paragraphs 109-112, 119 to 130 and 147 to 162.
4. The claimant's application for costs is refused.”

15.	The Tribunal’s reasons for the former order are as follows:  

“7. Now that the tribunal has had to opportunity to read the statement it is apparent that it does not simply expand on existing allegations, but contains a number of entirely new allegations against further members of staff.  These include both allegations of racial discrimination and or protected disclosures alleging incompetence.
8. If brought by separate claims, these allegations would be well out of time and it would not be just and equitable to extend time. The Claimant has been given an opportunity to explain why he did not include these allegations in the original or the amended claim. His contention is that his solicitors knew about them, but failed to comply with his instructions to include these matters.  Clearly solicitors acting for a client should follow his instructions, but they also have an obligation to give proper advice. The failure to include these allegations was plainly a conscious decision by his solicitors which he accepted at the time. If these allegations cannot be pursued, it would not be right for the facts contained in the paragraphs set out in the Order to be put before the tribunal as evidence.”

16.	The Tribunal’s reasons for the latter order are as follows:  

“9. Normally the costs of an adjournment caused by the failure of one side's representative to attend would result in an order for costs against them. However, the claimant is not represented and the new provision for Preparation Time Orders in rules 42 to 47 Employment Tribunal Rules of Procedure 2004 does not apply to claims served on the respondent before 1 October 2004 - see Regulation 20(4). It is now established that the Litigants in Person Act does not apply to employment tribunals and, therefore, the tribunal has no power to order the respondents to pay the claimants costs or preparation time.”

17.	Against this background we turn to the three heads of the Appeal.  

Amendment
18.	As regards racial harassment Miss Stout on Dr Banerji’s behalf submits that it was insufficient for the Chairman to say that the allegation could be dealt with on the existing pleadings.  Racial harassment, she submits, is a separate head of claim since the amendment introduced to the Race Relations Act 1976 by the Race Relations Act 1976 (Amendment Regulations 2003) in particular by the addition of section 3A and section 4(2)(A).  However, as Miss Stout correctly mentioned in her Skeleton Argument the amendment took effect from 19 July 2003, that is after the period with which this case is concerned.  This case therefore falls to be decided under the old law pursuant to which racial harassment was a species of unlawful racial discrimination.  In our judgment the Tribunal Chairman was correct to say that no amendment was required in this respect.  

19.	As regards victimisation, Miss Stout submits that the Tribunal Chairman was wrong to say that the documents before him did not indicate that he had made a specific complaint of race discrimination.  The original statement, which was to stand as an amendment, did make reference to acts within the meaning of section 2 of the Race Relations Act 1976.  Therefore an amendment should be allowed to make clear that which was already within the pleaded case; namely that he was dismissed because he had complained about race discrimination.  She says the amendment came within the principles laid down in Selkent Bus Company v Moore [1996] ICR 836.  

20.	In answering this point Mr Hoskins accepts that the amended Originating Application indeed did refer to protected acts.  He accepts that the Chairman who of course had no assistance from Dr Banerji on the day of the hearing was wrong in saying in paragraph 5 that the documents did not indicate a specific complaint of racial discrimination.  

21.	However, he makes two points.  Firstly, he says there was no detail in the request for amendment at all.  It was simply a bald request to add a reference to victimisation.  Secondly, he refers to the Chairman’s comment that the claim was being amended “at such a late stage”.  He says this was a matter that the Chairman was entitled to take into account and that overall the Chairman should not be considered to have erred in law.  

22.	Our conclusions are as follows.  

23.	We accept of course that an appeal lies only on a question of law and that a Tribunal exercising a discretionary power such as the grant of permission to amend will err in law only if the discretion is exercised on wrong legal principles by taking into account the irrelevant, by leaving out of account the essential or by reaching a conclusion outside the ambit within which reasonable disagreement is possible.  

24.	In this case, however, we consider that the Tribunal Chairman approached the exercise of his discretion on a wrong basis.  At the heart of his reasoning was a belief that the documents did not seem to indicate that the protected act involved a specific complaint of race discrimination.  That did not do justice to Dr Banerji’s pleaded case, in particular in the statement which stood as an amendment to his Originating Application.  The Tribunal Chairman’s exercise of discretion to refuse leave to amend to allege victimisation therefore cannot stand.  

25.	In our judgment leave to amend to plead victimisation should be allowed, subject to a sensible and succinct draft being provided.  That should certainly encompass two matters.   Firstly, the complaints to the Clinical Director and, secondly, to the Deputy Human Resources Director, to both of which we have already referred.  There is a possible third protected act actually referred to in the Originating Application.  The letter dated 20 May.  Mr Hoskins says that protected act may have been too late to have had any influence on the decision in this case; if so there will be no substance in an amendment on that point.  

26.	In our judgment therefore the Tribunal ought to grant leave to amend subject, as we have said, to a suitable succinct amendment being provided.  

The New Statement
27.	Again, the principles to which we have referred apply.  An appeal to the Appeal Tribunal in relation to an exercise of discretion can only succeed if it comes within those narrow principles.  

28.	Miss Stout’s first submission is that the Tribunal ought to have treated the revised witness statement as being in essence an application to amend the claim.  In our judgment it is inherent in the Tribunal’s approach that it was prepared to contemplate precisely that.  Since the Tribunal regarded the allegations as entirely new, if it was not prepared to contemplate any further amendment there would have been no point given the Tribunal’s reasoning in considering the amendments at all.  

29.	Miss Stout’s second submission is that the Tribunal erred in law because it failed because it failed to take into account that it had decided, on the Trust’s application, to postpone the hearing by four months until May 2005.  We are wholly unpersuaded that the Tribunal left this out of account.  The Tribunal was well aware that it was adjourning the case until May.  It specifically took that into account when allowing a part of the revised witness statement to stand.  See paragraph 6 of its Reasons.  

30.	Miss Stout thirdly submits that the Tribunal erred in law in comparing the new allegations to separate claims whereas she says they are additional incidents of protected disclosure.  They are not separate claims because the fundamental claim is for unfair dismissal but no more than additional facts which go to support the existing claims.  Fourthly, she submits that they ought not to have been struck out because applying Selkent principles they were no more than a re-labelling or a development of the case rather than new material.  Finally, she submits that in any event they were relevant evidence and the Tribunal has no jurisdiction to exclude relevant evidence.  In that respect she refers to ALM Medical Services v Bladon [2002] IRLR 807.

31.	We reject these submissions for the following reasons.  Firstly, we have no doubt that the Tribunal did have Selkent principles in mind in the reasons which it gave.  In Selkent Mummery LJ said that the whenever the discretion to grant an amendment is invoked the Tribunal 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; relevant circumstances include the nature of the amendment, the applicability of time limits and the timing and manner of the application.  Mummery LJ noted that applications to amend are of many different kinds ranging from correction of errors to the addition of factual details to existing allegations and the making of entirely new factual allegations.  It was essential for a Tribunal considering a new complaint or cause of action to consider whether that complaint is out of time and, if so, whether the time limit should be extended under the appropriate statutory regime.  

32.	Contrary to Miss Stout’s submission we do not see the amendments (to which we have been taken to in considerable detail) as being further instances of protected disclosure.  The reality is that they are further matters of complaint, principally complaints of race discrimination.  See for example in relation to Dr Santos, paragraph 79 and 83; in relation to Mrs Pillai, paragraphs 101, 104 and 106; in relation to Mr Kerr-Wilson, paragraph 110; and in relation to Mr Holmes, at paragraphs 119 and thereafter; and in relation to medical secretaries, paragraphs 147 and 159.  They could have been free-standing allegations.  They were made a very long way out of time and the Tribunal was entirely within permissible limits in concluding that it would not be just and equitable to extend time for them.  

33.	We do not think that the Tribunal was bound to allow in any relevant evidence; this being Miss Stout’s boldest submission to us.  The Tribunal had powers of case management.  It was entitled to keep the case within sensible bounds.    

34.	For those reasons we consider that the Tribunal did not err in law in declining to allow the revised witness statement to go forward in the respects alleged.  

Costs
35.	The Tribunal was right to say in paragraph 9 of its Reasons that the provisions of the Employment Tribunal Rules 2004 relating to Costs and Preparation Time Orders did not apply to these proceedings.  That follows from Regulation 20 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004.  

36.	In our judgment it is plain that the Tribunal therefore had no power to award Dr Banerji costs based on the time he spent preparing for and attending the hearing.  The matter was fully discussed in Kingston upon Hull City Council v Dunnachie No.3 [2003] IRLR 843 at paragraphs 37-51.  For the purposes of the 2001 Rules, costs do not include the value of a litigant in person’s time.  

37.	Miss Stout submitted that a distinction should be made between the value of a litigant in person’s time and loss of earnings when a litigant in person has to attend a Tribunal.  This matter was left open in Dunnachie where it was not relevant.  See paragraph 39 of the judgment.  However, in our judgment the true distinction is between those items which are disbursements and those items which are not disbursements.  Under the old rules a litigant in person could recover disbursements but could not recover in any way, shape or form, for time expended.  

38.	Although counsel were unable to refer us to any specific authority on the point this interpretation is consistent with the judgment of the Court of Appeal in Buckland v Watts [1971] QB 27 where Dankwards LJ stated at 35G, “In the case of a layman who is not a skilled legal person he can only recover his out of pockets.”  If it were otherwise there would be a premium for a litigant in person in the way he organized his time for attending before a Tribunal.  If, on the one hand, he took holiday he would not be entitled to payment.  See Dunnachie itself.  If, on the other hand, he took unpaid leave he would have an argument for payment.  We do not think that can have been the distinction under the 2001 Rules.  The 2004 Rules of course are quite different; in a case to which those Rules apply, preparation time is allowed.

39.	Quite plainly, Dr Banerji in this case will have had out of pocket costs, not least the cost of travelling to the Tribunal which will have been wasted by reason of the adjournment.  The Tribunal ought not to have ruled out an award of such costs in principle.  

40.	There is, we add, a second somewhat different route by which costs can be awarded under the 2001 Rules.  By paragraph 14(1)(b) there may be an order that one party pay to the Secretary of State the whole, or any part of any allowances paid by the Secretary of State, under section 5(2) or (3) of the 1996 Act to any person for the purpose of, or in connection with his attendance at the Tribunal.  That can be a route by which expenses and allowances, which may in certain circumstances include repayment for loss of earnings, may be visited upon one party at the instance of the Tribunal, if it is just to do so.

41.	On the question of costs the matter must in our judgment be remitted to the Tribunal.

42.	In conclusion there are just three further things to say.  

43.	Firstly, Dr Banerji who was for good reason unable to attend today, has been very well represented by Miss Stout, who has argued his case thoroughly pursuant to appointment by the Free Representation Unit and we are grateful to her for doing so.  
44.	Secondly, we have heard this case by my direction before the case began, as a Tribunal with members because one of the judgments which was under appeal was a decision by a Chairman and members.  The Preliminary Hearing does not appear to have been conducted in the same way.  We do not encourage any application to review the Preliminary Hearing but if any remedy were required in relation to the Preliminary Hearing a review could in our judgment would be the first port of call.  As I say we do not encourage it but it is only right to point out the circumstances. 

45.	Finally, this matter will require, we have no doubt, a Case Management Discussion before it is listed for hearing.  We are strongly of the view that it is in Dr Banerji’s interests to attend any Case Management Discussion which may take place.  It is unfortunate, although there may very well be good reason for it, that he was not available on the telephone on one instance.  His personal attendance would have been very helpful, particularly if he had had all the papers with him.  We think that on any subsequent occasion he should be encouraged to attend.  

46.	At any Case Management Discussion at least the following will need to be considered.

47.	  Firstly, the time estimate for this case was inadequate.  We doubt whether 3 days will suffice for the hearing of this case or come anywhere near it.  

48.	Secondly, if either party believes that they have a case for any further witness statements, we think those witness statements should be available for consideration by the Tribunal at that Case Management Discussion; so that the Tribunal may then rule on what is, if anything further is required.  So far as Dr Banerji is concerned we think it most unlikely that any fresh allegations will be appropriate.  The matter is, however, ultimately one for the Tribunal to consider if he makes an application to it.  So far as the Trust is concerned some matter responsive to what has been allowed by Dr Banerji may be appropriate.