The Employment Appeal Tribunal (EAT) has held in Reuters Ltd v Cole that adding a complaint of direct discrimination to an existing claim which includes indirect discrimination is more than a “relabelling exercise” not least because a different factual inquiry was needed and a more onerous test would have to be applied.
Basic facts
Mr Cole, an assistant editor with Reuters since 2010, suffered from a chronic depressive illness which was recognised as a disability within the meaning of section 6 of the Equality Act. After crossing swords with a new manager in January 2016 who was critical of his work, he went on sick leave.
In June 2016, he lodged tribunal claims for discrimination arising from disability (section 15 of the Equality Act) and failure to make reasonable adjustments (section 21). After asking for a postponement to resolve an internal grievance, a preliminary hearing was set for the end of August 2017.
However, two weeks before the hearing his solicitors asked to amend his application to include claims of direct discrimination (section 13 of the Equality Act) arguing that it was essentially a relabelling exercise. They explained that the amendment had been submitted late because Mr Cole’s health problems made it difficult for him to give them instructions.
Tribunal decision
The tribunal granted the amendment on the basis that the new claims did not rely on any new facts or matters in comparison to those set out in his original claim form.
Reuters appealed, arguing that the judge was wrong to accept that “no new facts or matters” were raised by the amendment.
EAT decision
Allowing the appeal, the EAT agreed that the additional claims were more than a mere “relabelling exercise” not least because a claim of direct discrimination involved “a greater area of factual inquiry”.
In this case, that would involve finding out whether Mr Cole was treated less favourably than a comparator and if so, whether this was on the grounds, conscious or unconscious, of his disability. In addition, section 13 imposed more stringent tests both as to knowledge and causation which also involved a comparative exercise. As such, the set of facts necessary to establish liability under section 15 would not satisfy section 13.
As the existing claim had been framed to establish the ingredients of a section 15 claim, it did not argue that Mr Cole had been discriminated against by his manager because of his disability. To the extent that inferences would have to be drawn to satisfy the further ingredients of a section 13 claim, these were inferences of new fact.
The judge should therefore have had regard to these various factors as well as whether it was just and equitable to grant an extension of time as the claims went well beyond the three-month limitation period.
The EAT therefore remitted the claim to the same tribunal to consider whether the amendment should be allowed.