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17 June 2018

101: Court distinguishes between disability arising from discrimination and direct disability discrimination claim

When deciding whether to allow an application to amend a claim, an Employment Tribunal must consider all the circumstances of a case and weigh up the potential injustice or hardship that could be caused to either party. Relevant factors will include the nature of the amendment, applicable time limits, and the timing and manner of the application.

Tribunals are more likely to grant applications which seek to ‘relabel’ existing claims on the basis of facts already pleaded, rather than applications which seek to change the basis of the existing claim by adding new factual allegations. In Reuters Ltd v Cole, the Employment Appeal Tribunal (EAT) had to consider whether a Tribunal was correct to allow a claimant to amend his claim for discrimination arising from disability to include a claim of direct disability discrimination.

Mr Cole, who is employed by Reuters Ltd, has been absent from work since January 2016 due to a chronic depressive illness and is disabled for the purposes of the Equality Act 2010. In June 2016 he submitted a claim for discrimination arising from disability and failure to make reasonable adjustments. This claim was then stayed for nine months whilst Mr Cole pursued an internal grievance. In August 2017, Mr Cole applied to amend his case to include a claim for direct disability discrimination, arguing that this new claim arose out of the facts already set out in his original claim. He argued that a protective claim had been submitted originally because his health difficulties meant that he had been unable to provide detailed instructions at that time. The Employment Tribunal allowed the amendment, agreeing that the amendment was simply a relabelling exercise.

However, the EAT allowed Reuter’s appeal, ruling that this was not merely relabelling since more onerous legal tests applied to a direct discrimination claim, for example, in relation to knowledge, causation and comparators. This would involve a much broader factual assessment. The EAT held that the Tribunal had failed to consider all relevant factors when exercising its discretion, including the fact that Mr Cole’s original claim had made no allegations of direct disability discrimination, and the new claim was out of time.

This decision will make it more difficult for employees to issue a protective claim initially and then add a new discrimination claim on the basis that this arose out of the same facts. Employees are therefore more likely to protect their position by including all types of discrimination in their original claim, which may result in more time and costs being incurred by employers at the outset of proceedings.

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