The Court of Appeal, in Ali v Office of National Statistics, has held that
a claimant who fails to set out the acts complained of in the originating application
is required to seek leave to add the complaint as a new claim.
In the present case, the Court of Appeal was faced with the question of whether
an originating application, prepared by the appellant himself and containing
a complaint of race discrimination, was sufficiently specific to include a
claim of indirect race discrimination. It was held that after scrutinising
the particulars of the originating claim form, no assertion of indirect discrimination
could be detected. Therefore, without specific particularisation, the indirect
discrimination claim was a new claim and as such, was in fact out of time.
According to the Court of Appeal, the correct issue to be determined was whether
it was just and equitable to extend the time limit to allow an amendment. The
policy reasons behind the decision appear to be that to hold otherwise would
in effect mean that an originating application that appears to contain full
particulars would be deceptive if an employer could not in fact rely on what
it states as being a complete statement of all claims.
It was only after the disclosure of documents and the cross-examination of
witnesses that the information on which the indirect discrimination claim would
be founded, had come to light. The Court of Appeal therefore asserted that
it would be inconceivable that an application to amend to add that claim as
soon as it was discovered would have been refused. The case was therefore remitted
to the tribunal to decide whether or not an amendment to introduce a claim
of indirect discrimination should be permitted.
While the instant case centres upon a lack of specificity in an application
to the tribunal, employers should be equally aware that it would be prudent
to ensure that responses to claims should also be drafted in sufficiently detailed
terms to prevent their case being undermined at a later stage.
This decision perhaps reflects a more general trend towards a stricter interpretation
of employment tribunal procedure. An increasingly common pitfall for employers
is the failure to respond sufficiently to an order for documents or for further
and better particulars. A Glasgow tribunal has recently held that where an
employer had no documents to disclose against an order, it was not acceptable
for him simply to claim to have complied. Instead, the tribunal ruled the employer
should have sought that the order be set aside. Failure to follow the correct
procedure under the recently revised Employment Tribunals (Constitution and
Rules of Procedure) Regulations 2004 can lead to an award of expenses being
made against the non-complying party and serve to undermine a party's case.
While the tribunal system is designed to be accessible for claimants and respondents
alike, the increasingly strict interpretation of tribunal rules means that
it may be prudent for employers in particular, to seek specialist advice before
responding to claims or orders from the tribunal in order to minimise their