Tribunals have to tread a fine line when considering an application to amend an existing claim, as opposed to requiring the claimant to lodge a new one. In Edema v City of Sanctuary Sheffield, the EAT held that as Mr Edema had brought his original claim on the ground of dismissal alone, he could not amend his application with new allegations of race discrimination which clearly strayed well outside that “realm”.
Mr Edema lodged tribunal proceedings on 24 July 2020 against his dismissal.
On 30 September, he was ordered at a preliminary tribunal hearing to provide specific factual information about the allegations he had made relating to the dismissal. The judge also referred in the order to “allegations of race discrimination” made by Mr Edema which had allegedly started in the last three years of his employment.
On 21 October 2020, Mr Edema submitted further particulars. On 2 November, he was ordered to comply with the tribunal order that had been made on 30 September. He sent further particulars on 23 November, but these were rejected by the tribunal as being noncompliant.
Without being asked to do so, he provided another document of further information, as well as a document entitled “Further identification of claims”, which contained 62 allegations of direct race discrimination/harassment and also a new allegation of indirect discrimination.
On 18 January 2021, Mr Edema made a formal application to amend his original claim form, but this was refused on the basis that these were new claims, some of which extended back as far as 2016 and were, therefore, out of time. Although the tribunal acknowledged that Mr Edema might argue there had been discrimination because of a continuing cause of action, it was influenced by the fact that the allegations of discrimination were about various individuals at the company, one of whom had now retired.
Basis of appeal
Mr Edema appealed, arguing that by referring to “allegations of race discrimination” in the order dated 30 September, the judge had recognised not just that his complaint was of continuing acts, but also that he would be given the green light to amend his original application form in due course.
In support of that expectation, Mr Edema pointed to the template which he had been ordered to fill in by the judge, which included asking for factual details about what his employer was alleged to have done under the heading of “direct race discrimination” and which culminated in his dismissal.
The employer argued that the amendment should not be allowed because of the addition of new factual allegations and the fact that they related in very large part to historic allegations which were probably out of time.
Rejecting the appeal, the EAT held that the original claim was brought on one ground only – dismissal. The new allegations, on the other hand, clearly went well outside that “realm”. As for the issue of time limits, the EAT held that the tribunal had taken this into account when coming to its decision.
Whilst acknowledging that Mr Edema would be disappointed by the decision, the EAT said he should take comfort from the fact that he had “a significant claim” for unfair dismissal. In any event, as the EAT pointed out, Mr Edema could submit the various factual allegations as evidence and ask for inferences to be drawn from them as part of his dismissal claim.