24 August, 2021
Section 123 of the Equality Act 2010 deals with the relevant time limits for discrimination claims under the Equality Act. This essentially gives a three month time frame within which relevant claims must be raised with the important caveat that conduct extending over a period is to be treated as done at the end of the period, so for instance, concerning a pattern of harassment the time limit would come from the last time the harassment took place.
Ultimately, once a claim has been submitted (and the same applies to a response submitted by a Respondent) to an Employment Tribunal, the right to vary it is limited and with the permission of the Employment Tribunal. It is therefore important to understand that tribunals can allow amendments but will generally only do so after careful consideration and taking the views of both parties to the case into account. Key factors which are weighed up by Employment Tribunals include, the nature of the amendment, the applicability of time limits and the timing and manner of the application.
The Employment Tribunal has issued guidance which makes clear that minor amendments such as changing of typos and dates etc. are uncontroversial. For more substantial amendments the Employment Tribunal would instead consider the principles set out in Selkent Bus Co Ltd v Moore, known as the Selkent principles which are:
The nature of the amendment;
Time limits for any new claims that are being brought; and
The timing and manner of the application to amend the claim.
Prakash v Wolverhampton City Council is another important case which confirmed that there is no reason in principle why a cause of action that has accrued after the presentation of the original claim form should not be added by amendment if appropriate. In the case the Employment Appeal Tribunal made it clear that it makes sense to allow such amendments rather than always requiring claimants to issue second originating applications.
In the recent EAT case, Sakyi-Opare v Albert Kennedy Trust, the Claimant in the case (Sakyi-Opare) was a social work student at Brunel University. She had undertaken a placement at a well-known LGBT youth homelessness charity. The Trust terminated her placement due to concerns around her professionalism in May 2018 and the Claimant then made a claim to the employment tribunal on 05/10/2018 alleging discrimination and harassment on the ground of religion, claiming that her placement at the charity had been prematurely brought to an end because of her religious views. She claimed that allegations that she was homophobic, which had been made against her, amounted to harassment and discrimination. She also claimed that during the placement other employees engaged in conversations relating to her faith when she was present in which it was denigrated and ridiculed.
Just over three months later on 15/01/2019 Sakyi-Opare was invited to a meeting by her university (Brunel University) to discuss concerns about her placement, which took place on 22/01/2019. Sakyi-Opare considered that this meeting amounted to a continuation of the alleged harassment and discrimination directed against her.
Sakyi-Opare then sought to add her complaint about the January 2019 meeting with her university by way of an amendment to her original claim, however the Employment Tribunal ruled that her original claim was submitted out of time. This is because, according to the Employment Tribunal (applying section 123 of the Equality Act 2010) if the latest discriminatory act was the termination of her placement with the homelessness charity in May 2018, then she was significantly out of time to bring this claim.
In so concluding, the Employment Tribunal ruled that it was not just and equitable to extend the time to make amendments to the original claim. The Employment Tribunal rejected Sakyi-Opare's argument that the alleged discrimination constituted conduct extending over a period of time (i.e. since the first incident at her placement, to the meeting she had with her university which she claimed was a continuation of the discrimination and harassment against her).
Sakyi-Opare appealed to the Employment Appeal Tribunal arguing that the Employment Tribunal had erred in failing to determine her application to amend her claim to cover events in January 2019. The Employment Appeal Tribunal allowed the appeal and made it clear that the Employment Tribunal had, in fact, erred in law in rejecting Sakyi-Opare's argument about there being conduct extending over a period of time, since at no point did the Employment Tribunal address Sakyi-Opare's application to amend or the substance of her January 2019 allegations. It therefore stands to reason that it is permissible to make an application to amend a claim to include within it events that post-date the presentation of the claim form. Amendments to include events that post-date the submission of a claim form, therefore amounting to a continuation of the series of events claimed about, can be made.
This case is a useful reminder that particularly in claims involving claims of discrimination, just because the case is brought out of time, does not mean that Claimant cannot bring still bring their claim. This is even more likely to be the case in circumstances such as the above case where the Claimant had an ongoing relationship with the parties involved which can happen and is not uncommon in discrimination claims.