Trade union advisors often draft their members' tribunal claims for them. Unfortunately, the Court of Appeal has just made that job more difficult by deciding in Ali v Office of National Statistics (2005, IRLR 201) that claimants have to make sure they have identified all the right claims and covered all eventualities (either specifically or generally).
It can be very difficult (and very time consuming) to try to lodge an amendment to remedy an omission later, as this case shows.
What were the facts?
Mr Ali, a black African, was unsuccessfully interviewed twice for two different jobs with the Office of National Statistics. He then claimed that he had been rejected because he was black.
In his claim form (the old box one) he wrote that he wanted the tribunal to decide "whether I have been victimised and discriminated against on racial grounds contrary to the 1976 RRA".
The factual details that he provided showed a claim of direct discrimination (that he won) but which was overturned on appeal. The employment appeal tribunal (EAT) then sent the case back to the employment tribunal to be reheard.
What happened second time round?
Mr Ali's representative then tried to amend his claim to include "indirect" (as well as "direct") discrimination following new evidence that emerged during the first tribunal hearing.
Mr Ali argued that he had already identified this claim because he had referred to race discrimination generally, and relied on the 1995 case of Quarcoopome which said that that was enough to cover both direct and indirect discrimination. The ONS disagreed, saying that it was a brand new claim that was being brought late.
The tribunal took a third view deciding that the amendment could be read into the factual summary in the original claim form, and allowed the claim to proceed. The ONS successfully appealed on the basis that neither party had argued this point so it was not open to the tribunal to adopt it.
The case was sent to yet another tribunal to decide whether the indirect discrimination claim should be allowed under the Quarcoopome rule or be allowed late.
What was the question for the Court of Appeal?
The Court of Appeal had to decide whether it should follow the EAT decision in Selkent Bus Co Ltd v Moore (1996, IRLR 661) and "take into account all the circumstances and ... balance the injustice and hardship of allowing the amendment against the injustice and hardship of refusing it". This applied if Mr Ali was right.
Or whether "in all the circumstances of the case [the tribunal] considers that it is just and equitable to [allow the amendment]", taken from s68(6) of the Race Relations Act 1976. This applied if the ONS was right.
What did it decide?
The Court of Appeal decided that whether a claim form contains a specific claim can only be judged by looking at the document as a whole. In other words, by looking at the name given to the claim as well as the factual details accompanying it.
If, however, the claim is very general (such as "discrimination"), then the particulars need to be specific so that employers are clear about what claim is being made against them, as direct and indirect discrimination are two separate types of unlawful act.
Therefore Quarcoopome was wrong on this point and Mr Ali's claim for indirect discrimination was both new and late.
As to the proper test that should be used, the court said that both tests amounted to much the same thing.