In Reuters Ltd v Cole UKEAT/0258/17, the EAT considered whether a tribunal was correct to grant an application to amend a disability related discrimination claim to include a claim for direct discrimination.
Mr Cole has been employed by Reuters since 2010 as an Assistant Editor. Mr Cole is disabled for the purposes of section 6 of the Equality Act 2010 due to his chronic depressive illness.
In September 2015 Mr John Foley became his line manager. Mr Cole reacted badly to comments made by Mr Foley as to the quality of his work. Following a particular exchange on 7 January 2016, Mr Cole has not returned to work and has had periods of hospitalisation. He remains employed under his contract of employment.
On 7 April 2016 he contacted ACAS to commence early conciliation in respect of proposed claims of disability discrimination. On 3 June 2016, Mr Cole presented a claim to the employment tribunal for discrimination arising from disability and failure to make reasonable adjustments. The proceedings were stayed for approximately nine months at Mr Cole’s request pending completion of an internal grievance procedure.
On 23 August 2017, Mr Cole made an application to amend his claim to include claims for direct and indirect disability discrimination. Mr Cole argued that the amended new claims were related to the same or similar facts and circumstances as set out in his original claim.
His solicitors argued that due to his significant health difficulties at the time the original claim was submitted, it was difficult for him to provide detailed instructions.
Mr Cole’s application was granted by the tribunal, having regard to the fact that no new facts or submissions were relied upon.
Reuters appealed to the EAT.
The EAT allowed the appeal.
The EAT held that the tribunal were wrong to accept Mr Cole’s submission to amend his claim. Direct discrimination requires a higher test and there were different issues involved which refuted the explanation that it was a relabelling exercise.
Amending Mr Cole’s claim to include direct discrimination would require a wider factual enquiry and thus takes it outside the relabelling category. In particular, a comparative exercise to determine whether Mr Cole had been treated less favourably, and if so, whether this was on the ground of his disability.
The EAT held that the tribunal should have had regard to all of the relevant factors when exercising its discretion, including the fact that the new claim was out of time.
The application was remitted to the tribunal on the basis that it sought to amend to include a fresh claim rather than being a relabelling of existing claims.