Miss O Mironescu v Parkcare Homes (No.2) Ltd and others: 1302243/2019

EMPLOYMENT TRIBUNALS

Case No 1302243/2019

Between

Miss O MironescuClaimant

Parkcare Homes (No.2) Ltd and othersRespondent

Before

Employment Judge Kelly

In person for claimant

Ms Badham (instructed by counsel) for respondent

Date 8 October 2020

JUDGMENT

[1]The Tribunal is unable to identify the correct identity of the respondent and has added further respondents by separate order.

[2]The claimant’s claim for unfair dismissal is dismissed.

[3]The claimant had a disability for the purposes of the Equality Act 2010 from 19 November 2015 to 21 January 2019, namely the Arm Impairment, as set out below.

REASONS

CONCLUSIONS

[1]This Preliminary Hearing was to determine the following issues:a. The correct identity of the respondent. The claimant called the respondent “Priory Group Head Office”. There is no such company registered at Companies House and it cannot be the correct name for the respondent. The respondent contended that the correct name of the respondent was Parkcare Homes (No.2) Limited.

b. Whether the claimant was an employee of the respondent and, therefore, whether the Tribunal has jurisdiction to determine the claimant’s claim for unfair dismissal. The respondent accepted that the claimant was a worker.

c. Whether the claimant was a disabled person as defined in the Equality Act 2010 (EQA) at any material time. At the preliminary hearing of 12 September 2019, the claimant identified that she was a disabled person by reason of her medical conditions of carpal tunnel syndrome, fibromyalgia and planter fasciitis. In medical evidence submitted to the hearing, the claimant also had a diagnosis of “myofascial pain”.

[2]For the purposes of these reasons, when we refer to the respondent, we shall refer to the claimant’s employer in the Priory Group of companies, whichever company that may be, unless the context requires us to be referring to Parkcare Homes (No.2) Limited, which company Ms Badham was apparently representing.

[3]By an email to the Tribunal of 21 Oct 2019, the respondent contested that the claimant had a disability at the material time on the following grounds: i. The claimant did not suffer from a medical impairment given that her medical records did not show a demonstrable cause of the symptoms. ii. The alleged physical impairment did not have a substantial adverse effect on the claimant’s ability to carry out normal day to day activities. iii. The impairments were not long term; the claimant’s medical records showing that she suffered from plantar fasciitis for a short period in 2016 and with fibromyalgia between June 2017 and December 2017.

The Law

[4]The question of when the “material time” was to identify whether or not the claimant had a disability had not been explored at the preliminary hearing of 12 September 2019. When this was raised in this hearing, it emerged that the claimant considered that acts of disability discrimination occurred, not only on her dismissal, but also prior to this when she was allegedly overlooked for other positions. We noted that the Tribunal would have to accept her application to amend her claim in order to rely on these pre dismissal events in her disability discrimination claim. Consideration of this application should take place at the next preliminary hearing. For the purposes of the today’s hearing we are considering whether the claimant was a disabled person at any time during the period October 2014 to 21 January 2019 (when her contract was terminated), this being the period of disability discrimination contended for by the claimant.

[5]The claimant gave evidence and was cross examined. She also relied on a written statement of Angela Hobbs. We did not find Ms Hobb’s statement of much assistance in considering the issues. The respondent relied on a written statement of Patrick Van Rensburg, operations director at the respondent’s group, which we refer to at points below. Neither Ms Hobbs nor Mr Van Rensbury attended to be cross examined on their evidence.

[6]We had a bundle of documents, and a written skeleton argument for the respondent. WHAT HAPPENED

[7]We find the following as the primary facts relevant to the issues for today’s hearing.

[8]From 21 Oct 2010, the claimant worked as a support worker at an establishment called the Tithe Barn, a specialist residential home for individuals with learning disabilities, autism and challenging behavior.

[9]Initially the claimant was an employee. When she joined as an employee, the Tithe Barn was operated by an organisation called Craegmore. The Tithe Barn operation was then taken over by the respondent or its group company.

[10]After this take over, in November or December 2013, the claimant was successful in finding a position with a third party to work 30 hours a week caring for elderly people. She still wished to continue at the respondent part-time and asked if she could change her working arrangement to be a bank worker, which was agreed. There was no break in time between her full time employment and transition to bank working. Relating to status

[11]A bank working agreement of 21 January 2014 was sent to the claimant on paper headed “Priory Group of Companies” from Priory Central Services Limited by cover letter of 21 January 2014. It was signed by the claimant and the respondent.

[12]This agreement stated that it detailed the essential terms and conditions of the Priory Group bank working agreement and that further details of standards at work were available in the bank workers’ handbook. We were supplied with a later copy of that handbook, but from the evidence we heard, there was no difference between the earlier and later versions relevant to the issues at this hearing.

[13]The agreement stated:a. “This agreement is not a contract of employment.”

b. “Any bank hours offered are at the sole discretion of the company, as dictated by the needs of the business, which you may accept or decline as you wish.”

c. “The company does not guarantee to offer you any number of bank working hours or any bank working hours at all.”

d. “You may decline to accept bank working hours offered. But once bank working hours are accepted you are required to give reasonable notice if you subsequently are unable to work the bank working hours accepted.”

e. The claimant was paid an hourly rate for bank hours worked. She was entitled to paid holiday, but not company sick pay. She was obliged to follow company procedures.

f. “If you no longer wish to be considered available for bank work please inform your manager in writing.”

g. “The company may inform you in writing if your bank working services are no longer required.”

h. “Casual bank working will not count towards continuous service.”

[14]In the bundle was a letter of 27 June 2019 to the claimant, sending her a new bank agreement stated to take effect from 21 December 2013. This comes from “Group HRD Administrator” but is not printed on company paper showing from which company it was sent. The enclosed agreement was not in the bundle.

[15]The Handbook stated:a. “The nature of a bank working arrangement means that there is no guarantee of employment and no entitlement to additional benefits. Similarly you are under no obligation to accept work that is offered to you.”

b. “As a bank worker you will be offered bank hours at the sole discretion of the company, as dictated by the needs of the business. You will be advised of the time and duration of work for each attendance.”

c. “If you no longer wish to be available for bank work you should advise your manager in writing of the date after which you will not be available. If there is no need for you to be available for work, the company will advise you of this in writing confirming the date of termination of your bank agreement.”

[16]The claimant said that the respondent explained to her that there was no obligation from it to her or vice versa.

[17]The claimant arranged her shifts as follows. She was shown a copy of the rota and asked to put her name down for any shifts she wanted to work. Also, she was called and asked if she could do a shift. When this happened, she felt moral pressure was put on her to accept the shift; she was told that it was her duty as a carer to accept the shift and she felt guilty and that she had to rearrange any prior commitments and do the shift. However, she accepted that it was her decision whether to refuse the shift. She said that, once she had accepted a shift, she was asked to give 24 hours’ notice to be released from it and look for cover and, if she could not cover the shift, pressure was put on her to cover the shift.

[18]The claimant accepted that the respondent did not have to offer any hours of work to her at all and sometimes, she had no hours on the rota.

[19]The claimant was provided with training by the respondent, during her period as a bank worker. Mr Van Rensberg’s statement says that, due to the nature of the services, Priory Group has a responsibility to ensure that all staff have a sufficient skills and knowledge to ensure that vulnerable service users were appropriately safeguarded.

[20]The claimant had two extended periods when she opted not to have any bank working shifts, in order to go abroad. One was from 8 June 2018 to 1 July 2018, and the other from 16 July 2018 to 7 Sep 2018.

[21]The respondent undertook an investigation into an issue involving the claimant in November 2018 using what appears to be a standard “Investigation Workbook” which demanded the claimant’s “Employee signature”.

[22]The claimant made the points that she was given the same job title of “support worker” as was applied to employees, not “bank worker”, that like employees, she accessed group intranet materials, she paid national insurance contributions and income tax, she had to submit to the same policies and procedures as employees, the respondent organised her CRB check, she had the same line manager when an employee and a bank worker; she had access to the same employee support helpline as employees, and she felt she should have been supported to the same level as employees. Relating to identity of employer

[23]The claimant was employed full time by Craegmoor Facilities Company Limited from 21 Oct 2010, as shown by a contract of employment for the claimant in the bundle of documents, from November 2010. This company is ultimately owned by Craegmoor Group Ltd, a company in the Priory Group.

[24]For the first 2 years of working for the respondent, the claimant’s bank statements said that payments were being made to her by Priory Central Services Ltd. The statements then changed to say that payments were being made by “Priory Group”. The claimant’s P60’s showed the employer as “Priory Central Services” and then “Priory Group”, and her pay slips showed it as “Priory Group”. The claimant’s P45 gave the employer as “Priory Group” of 2 Barton Close, Leicester. This is not the registered office address of any of the companies mentioned above.

[25]A Care Quality Commission report of July 2016 stated that the Tithe Barn was run by Parkcare Homes (No.2) Limited.

[26]The respondent has a very complex corporate structure. A company plan produced by the respondent shows Parkcare Homes (No.2) Limited as being in its group of companies, directly owned by Craegmoor Care (Holdings) Ltd, ultimately owned by Craegmoor Group Ltd. This latter company is shown as owned by Priory Investments Holdings Limited and two of its indirect subsidiaries are Priory Central Services Ltd and Priory Group Ltd.

[27]Mr Van Rensburg’s statement states that Tithe Barn was part of the Craegmoor Group of Companies which was acquired by Priory Group of Companies in or around 2011. He referred to a current bank workers agreement in the bundle showing the contract being with Parkcare Homes (No2) Ltd. He did not actually state in so many words that the claimant’s contract was with this company. Relating to disability issue

[28]The claimant said that she suffered pain from 2013, initially in the hands and wrists. In 2015, she underwent an operation intended to relieve carpal tunnel syndrome. After this operation, pain in her hands continued and spread up her arms and into the side and back of the neck, the chest and sides of the body, and shoulder blade. She was diagnosed with fibromyalgia in 2016. She also experiences feelings of weakness and numbness and extreme fatigue.

[29]By reference to a diagram of the symptoms of fibromyalgia, the claimant established that myofascial pain is a symptom of fibromyalgia.

[30]The claimant explained that planter fasciitis leads to pain in the feet (and the claimant also said she felt it up to the hips).

[31]The claimant produced a statement on how her disabilities affected her, and gave more information on dates covered orally.a. She said that, from 2014 onwards, she needed extra time to get ready for the day, IE having a shower and washing her hair, getting dressed and eating. She struggled with showering and washing her hair because of the movements in the arms and wrists, and squeezing shampoo bottles, and holding up and moving a hair dryer. She needed extra time to dress because it hurt her arms to raise them and pull down a top and pull up trousers, to reach down to tie shoes and to put a coat on. She could not cut hard vegetables or fruit when preparing food. She suffered pain driving in holding the steering wheel, changing gear, adjusting the hand brake, and sometimes opening and closing the car door. It would take her 5 to 7 days to clean her flat. Texting hurt her fingers as did holding a phone. She could not hold a cup of tea in her hand.

b. From late 2014 or the start of 2015, she could not press switches on and off, hold a kettle full of water, flush a toilet or carry a certain amount of shopping.

c. From March or April 2015, she could no longer take a suitcase on holiday as she could not carry it.

d. From the end of 2015, she did not really sleep or fell asleep very late because there were no comfortable positions to lie in. From March 2015, she did not socialise.

[32]We were referred to a letter from a consultant hand and upper limb surgeon of 5 Dec 2016 regarding the claimant’s “pain both arms” which stated that the claimant’s pain fluctuated in intensity but was there all the time and caused her to drop things; her arms felt heavy; lifting her arms high was particularly painful; she worked as a carer doing cooking, personal care, driving and dressing but some adaptions have been made. She had someone to carry the full basket of washing for her and she had a trolley to move food rather than she carry it. “It seems likely that it is a chronic fibromyalgia picture.”

[33]We were referred to a letter from the claimant’s GP of 26 Jun 2019 stating that the claimant had been consulting him for severe chronic pain which had been extensively investigated in the past and for which she was currently on medication. He stated that she had been diagnosed with plantar fasciitis and myofascial pain syndrome. She was managing her pain with strong pain killers.

[34]The claimant’s GP records show an entry for plantar fasciitis in Oct 2015, with a few months of pain sole in the right foot, and another in April 2016. There is no other entry for plantar fasciitis. The claimant said that it was affecting her outside those dates, even if she did not mention it to the GP.

[35]To summarise the claimant’s GP records, which start on 20 Nov 2014, with a broad brush approach: In Nov 14, the entry says the claimant was diagnosed with carpal tunnel, giving painful numb hands. In Jan 15, she had bad pain in her hands. In Jan 16, she felt could not return to work due to hand pain. In Mar 16, she said she could not cope any more with the pain. In Jan 17, she suffered increased pain and the GP considered referral to pain clinic. In Oct 17, her right arm was hurting a fair amount and myofascial pain syndrome was diagnosed. In Nov 18, she had pain in the legs and arms and there was a diagnosis of myofascial pain syndrome, and fibromyalgia was mentioned. In May 19, she had pain in the right shoulder and arm.

[36]In the bundle were a number of Statements of Fitness for Work submitted by the claimant to the respondent. The claimant said that she did not submit these to her third party employer because, in that job, she was a team leader with lighter duties which protected her physically. a. There were three statements in 2015 referring to carpel tunnel syndrome; five in 2016 referring to carpel tunnel syndrome; six in 2017 referring to carpel tunnel syndrome, fibromyalgia and myofascial pain syndrome; and five in 2018 referring to myofascial pain syndrome.

[37]The Statements were submitted to the respondent either to support a need for lighter duties or to support an inability to work for a period. Until June 2016, they related to the claimant being unfit for work, generally for periods of one or two months. In Jan and April 2017, for 6 weeks or 2 months, she was fit if avoiding heavy lifting and strenuous activities involving the arms. One Statement had the example of lifting heavy laundry baskets. In May and August 2017, for 2 months and one month, she was fit for work if she avoided heavy lifting or strenuous activities. In October 2017, December 2017, Feb 2018, she was fit for 2 months if she avoided heavy lifting. In April and July 2018, she was fit for two months with light duties, if there was no lifting, pushing or pulling. In Sep 18 and Nov 18, she was fit for 2 months and 3 months if she avoided heavy lifting/pushing/pulling.

[38]The claimant was given a risk assessment in June and November 2016 which stated that the claimant would not carry any heavy load upstairs or downstairs and she would not do any heavy lifting or carrying or carrying of refuse/shopping bags or moving items of furniture. Small and regular loads were advised. The claimant could not peel or chop root vegetables, she would use the trolley to bring food items from the stores and would require help with laundry baskets. She could not change beds but may be able to assist. She would be able to drive but this would be monitored to see how she managed the steering. She could not wash up large pots and pans but could manage smaller items. She could not hoover due to the pushing and pulling motion. She could not move any furniture. She could do general day to day cleaning. She would need more time to write client notes due to pain.

[39]Risk assessments were subsequently reviewed with no change. In July 2018, it stated that there were no amendments to her risk assessment. She was able to complete all her duties depending on what her pain was like on that day. In October 2018, it states that the claimant was to let the respondent know at the start of a shift if she was unable to do certain jobs. No other amendments were made to the risk assessment.

[40]There is a note, apparently from 2018 (p225) as the lower part is dated 3 Oct 2018, stating that the claimant could do more cleaning than others some days and she could not do any laundry tasks. She needed backups dealing with double beds. She could not do much cooking, only breakfast, and driving was OK. THE LAW Employment status

[41]S230 Employment Rights Act 1996 states that “In this Act “employee” means an individual who has entered into or works under (or, where the employment has ceased, worked under) a contract of employment.

[42]The case of Ready Mixed Concrete (South East) Limited v Minister of Pensions and National Insurance (1968 2 QB 497) established that the following are required for a contract of employment:a. The worker was subject to a right of control by the employer. The respondent conceded this was so in this case.

b. The worker was obliged to perform services personally. The respondent conceded this was so in this case.

c. There must be mutuality of obligation between the employer and the worker. The respondent said that this did not exist in this case.

[43]For mutuality of obligation to exist, the worker must be obliged to accept work and the employer to offer it.

[44]According to St Ives Plymouth Ltd v Haggerty EAT 0107/08, a course of dealing between a casual worker and an employer may give rise to mutual legal obligations, even where the worker is entitled to refuse the offer of a particular shift. Meaning of disability for EQA

[45]Under s6 EQA, a person (P) has a disability if— (a)P has a physical or mental impairment, and (b)the impairment has a substantial and long-term adverse effect on P's ability to carry out normal day-to-day activities.

[46]Under Schedule 1 Part 1 EQA:a. The effect of an impairment is long-term if— (a)it has lasted for at least 12 months, (b)it is likely to last for at least 12 months, or (c)it is likely to last for the rest of the life of the person affected.

b. If an impairment ceases to have a substantial adverse effect on a person's ability to carry out normal day-to-day activities, it is to be treated as continuing to have that effect if that effect is likely to recur.

c. An impairment is to be treated as having a substantial adverse effect on the ability of the person concerned to carry out normal day-to-day activities if— (a)measures are being taken to treat or correct it, and (b)but for that, it would be likely to have that effect.

d. This paragraph applies to a person (P) if— (a)P has a progressive condition, (b)as a result of that condition P has an impairment which has (or had) an effect on P's ability to carry out normal day-to-day activities, but (c)the effect is not (or was not) a substantial adverse effect. P is to be taken to have an impairment which has a substantial adverse effect if the condition is likely to result in P having such an impairment.

[47]Under s212 EQA, “substantial” means more than minor or trivial.

[48]Under the Code of Practice on Employment 2011 App 1 section 7: There is no need for a person to establish a medically diagnosed cause for their impairment. What is important is to consider the effect of the impairment, not the cause.

[49]The Guidance on matters to be taken into account in determining questions relating to the definition of disability is relevant and the parties were referred to it. CONCLUSIONS Identity of respondent

[50]We did not find clear evidence pointing to any particular corporate entity as the employer, and this was solely the fault of the respondent for failing to issue clear documents on the point.

[51]There are several candidates for the employer:a. The respondent says it was Parkcare Homes (No 2) Ltd and relies on the CQC report giving this company as running the Tithe Barn and its current bank working agreement giving the employer as this company. We do not find these determinative of the issue. Staff can be employed by one group company and assigned to work for another. The current bank working agreement post dates the claimant’s agreement. Mr Van Rensburg did not give unequivocal evidence on this point.

b. The claimant’s bank working agreement was sent to her by Priory Central Services Limited, salary payments initially entered the claimant’s account from this company and this company also appeared on P60’s issued in respect of the claimant.

c. The claimant was initially employed by Craegmoor Facilities Company Limited and this company is still within the Prior group.

d. Payslips showed the employer as Priory Group and this is also the name of the entity which came to make payments to the claimant’s account after a couple of years. Priory Group Limited is a company in the respondent’s structure.

[52]As all of these companies are potentially the correct respondent, we have made an order adding them as respondents in this case. Employment status

[53]It is well established law that mutuality of obligation is necessary for employment status, and this is set out in Ready Mixed Concrete (South East) Limited v Minister of Pensions and National Insurance.

[54]The claimant accepted that the respondent was not obliged to offer her any hours of work at all. This alone means that there was not mutuality of obligation.

[55]We also find that the claimant was not obliged to offer any hours of work. Although she may sometimes have felt under moral pressure to cover shifts, she was not obliged to do so and this was made clear in the bank working arrangement. It can be seen working in practice in her failure to offer any shifts from 8 June 2018 to 1 July 2018, and from 16 July 2018 to 7 Sep 2018. This confirms the lack of mutuality of obligation.

[56]We note from St Ives Plymouth Ltd v Haggerty EAT 0107/08, that a course of dealing between a casual worker and an employer may give rise to mutual legal obligations, even where the worker is entitled to refuse the offer of a particular shift. However, no such argument was put forward in this case and we cannot see any particular features of this case which would mean that this principle applied.

[57]Therefore we find that the claimant was not an employee.

[58]The claimant’s points relating to her integration into the respondent’s organization are not sufficient to make her an employee in the absence of mutuality of obligation.

[59]We dismiss the claimant’s claim for unfair dismissal because the Tribunal does not have jurisdiction to hear this claim.

[60]The respondent invited us to dismiss the claimant’s claim for notice pay if we found that she was not an employee. We did not hear any submissions on this point and we are not prepared to make a decision on this today. Disability issue

[61]We do not consider to be valid the respondent’s argument that the claimant did not suffer from a medical impairment given that her medical records did not show a demonstrable cause of the symptoms; the Code of Practice Guidance referred to above states that there is no need for a person to establish a medically diagnosed cause for their impairment. What is important is to consider the effect of the impairment, not the cause.

[62]We were concerned that the respondent’s approach to the claimant’s conditions of separating them into distinct impairments according to a label applied to them may artificially limit the claimant’s ability to show that an impairment was long term.

[63]By reference to a diagram of the symptoms of fibromyalgia, the claimant established that myofascial pain is a symptom of fibromyalgia and so myofascial pain and fibromyalgia are not distinct conditions. After hearing the claimant’s information about her medical conditions, we understood that the planter fasciitis leads to pain in the feet (and the claimant also said she felt it up to the hips); and the carpel tunnel syndrome and fibromyalgia (including myofascial pain) leads to pain from the hands and up the arms and into the neck and parts of the upper torso. We noted from this that the claimant’s conditions appeared to essentially be two conditions:a. one which caused pain below the waist, plantar fasciitis; we call this plantar fasciitis; and

b. one which caused pain in the hands, arms and upper torso being labelled as carpal tunnel syndrome, fibromyalgia and myofascial pain; for convenience we call this the Arm Impairment.

[64]The respondent was content to accept this analysis.

[65]The respondent’s oral argument was that, according to the Statements for Fitness for Work, the claimant was, for most of the period, unable to undertake heavy lifting, which was not normal day to activity. It was only for the short period when she was on light duties from April 2018 to September 2018 that the symptoms affected normal day to day activities and that such short period could not constitute a long-term condition for the purposes of the EQA. It also pointed to the fact that the claimant was working in two care jobs, which would involve a high degree of physical activity. It said that the evidence did not show a long term substantial adverse effect. Plantar fasciitis

[66]We do not accept that there is evidence to show that the plantar fasciitis had a substantial adverse effect on the claimant’s ability to carry out normal day-to-day activities. All the effects listed by the claimant in her statement on how her disabilities affected her appear to be linked to issues with in the hands and arms, not the feet. They are to do with lifting the arms and pressing with the hands. Nor do we accept that there is evidence that the plantar fasciitis was long term, it being only mentioned in the GP notes in October 2015 and April 2016, which period does not extend to a year. There was no evidence that it is a progressive condition or that its effects were likely to recur. Therefore, we find that the claimant was not a disabled person by reference to plantar fasciitis. Arm Impairment – whether long term

[67]Turning to the Arm Impairment. By the point of termination of contract, the condition was certainly long term, carpal tunnel syndrome having first been recorded first on 20 November 2014 by the claimant’s GP, the GP notes recording pain in every year thereafter, and the GP recording myofascial pain syndrome and fibromyalgia in November 2018. By January 2019, the condition had lasted for over 12 months.

[68]We have to consider, not only the point of dismissal, but also the period from October 2014 and, if not the Arm Impairment was not long term then, when it started to be long term.

[69]We have no medical evidence until 20 November 2014 when carpal tunnel syndrome is mentioned in the GP notes. We have no evidence to support or go against the suggestion that carpal tunnel syndrome, at that time, would be likely to last 12 months, nor any evidence that it was likely to recur. Therefore, there is no evidence on which to base a finding that the claimant had a disability in October or November 2014.

[70]We consider that the Arm Impairment became long term on 19 November 2015 because, at that point, it has lasted for at least 12 months from the GP having first recorded carpel tunnel syndrome on 20 November 2014. It then remained long term to 21 January 2019, the GP notes recording pain in every year thereafter, and the GP recording myofascial pain syndrome and fibromyalgia in November 2018. Arm Impairment – whether substantial adverse effect

[71]The respondent says that the condition must have had a substantial adverse effect on the claimant’s ability to carry out normal day to day activities for a long-term period. We accept this. We will consider the evidence for the Arm Impairment having such an effect.

[72]The claimant’s medical evidence does not comment on her ability to undertake normal day to day activities, with the exception of the surgeon’s letter of 5 Dec 2016 which says that the claimant had someone to carry a full basket of washing for her and had a trolley to move food rather than carry it.

[73]We accept that most of the statements for fitness for work issued for the claimant do not show adverse effect on ability to undertake normal day to day activities. Most of them relate to heavy lifting and strenuous activities such as lifting laundry baskets. We accept that this is not normal day to day activity. The only statements indicating a difficulty with more normal activities are for 2 months from April 2018 and for 2 to months in July 2018. By September 2018, the statements revert back to warning against heavy activities. Therefore, the statements only indicate an issue with normal day to day activities from April to September 2018.

[74]However, there is more evidence relevant to this point in the risk assessments. We consider the risk assessments to provide good evidence because they contain the respondent’s own assessment of the situation. In June and November 2016, the risk assessments note that the claimant would not carry any heavy load upstairs or downstairs and she would not do any heavy lifting or carrying or carrying of refuse/shopping bags or moving items of furniture. Small and regular loads were advised. The claimant could not peel or chop root vegetables, she would use the trolley to bring food items from the stores and would require help with laundry baskets. She could not change beds but may be able to assist. She could not wash up large pots and pans but could manage smaller items. She could not hoover due to the pushing and pulling motion. She could not move any furniture. She could do general day to day cleaning. She would need more time to write client notes due to pain.

[75]We do not consider that the following are normal day to day activities: carrying heavy loads up and down stairs, heavy lifting, moving furniture, washing large pots. We consider the following to be normal day to day activities: carrying refuse and shopping bags, peeling and chopping root vegetables, carrying food items from the stores, changing beds, hoovering, and writing. Therefore, the risk assessments show that the claimant was unable or needed more time to undertake these day to day activities from June 2016. The risk assessments were subsequently reviewed with no change to the above until the last review in October 2018. We therefore accept from this evidence that the claimant had difficulty undertaking normal day to day activities from June 2016 to October 2018. Since there is no change noted in the claimant’s medical condition in medical notes after this date, we accept that this situation continued until January 2019.

[76]The only evidence of the impact on day to day activities prior to this date is the claimant’s statement on how her disabilities affected her in which she describes an impact on normal day to day activities from 2014 onwards in terms of showering, washing and drying her hair, putting on a coat and other dressing, preparing food, driving, cleaning, texting, holding a phone and holding a cup. Other issues with day to day activities are set out in para 31 above from the end of 2014 onwards. These issues are generally consistent with the sorts of day to day activities which the respondent found the claimant could not do in its risk assessments from June 2016. The claimant was diagnosed with carpel tunnel syndrome in November 2014 and so it is consistent with this diagnosis to find that the claimant suffered impact on day to day activities from November 2014.

[77]We consider that this impact was substantial, meaning more than minor or trivial. To be unable to undertake activities or require more time in undertaking activities such as hoovering, chopping root vegetable, carrying rubbish bags, changing beds and writing is a substantial impact. Conclusion on disability issue

[78]Therefore, we find that the Arm Impairment had a substantial and long-term adverse effect on the claimant’s ability to carry out normal day-to-day activities from 19 November 2015 to 21 January 2019, and that the claimant had a disability for the purposes of the EQA during this period.

Background

[1]The claimant application to amend her claim of disability discrimination limited to add complaints of direct discrimination because of her disability and discrimination arising from her disability in relation only to the events leading to the cessation of her working for the respondents or any of them from 28 November 2018 and the termination of those arrangements on 21 January 2019.

[2]Subject to the amendment permitted at paragraph 1 above the claimant's application to amend her claim of disability discrimination to add matters arising before her dismissal from October 2014 does not succeed.

[1]The claimant in this case has made an application to amend her complaint of disability discrimination to add the claim to include allegations of unlawful discrimination because of the protected characteristic of her disability from the commencement of the working arrangements with the respondents in 2014.

[2]The claimant presented a complaint to the employment tribunal on 2 May 2019 having begun early conciliation through the offices of ACAS on 20 March 2019. Early conciliation ended on 12 April 2019 when a certificate was issued. At a case management preliminary hearing before Employment Judge Gaskell held on 12 September 2019 it was agreed a Preliminary Hearing would be held to determine three preliminary issues namely:a. the correct identity of the respondent;

b. employment status;

c. and disability. The parties agreed that the time issues could not be determined in advance of the final hearing when the tribunal would hear the entirety of the evidence.

[3]A Preliminary Hearing before Employment Judge Kelly on 13 December 2019 found that the claimant was not an employee of the respondent or any of them and determined that a further preliminary Hearing should be held to determine the issues that are now before me, namely: “The hearing will consider the claimant's application to amend her claim of disability discrimination to add matters arising before her dismissal from October 2014.”

THE LAW

[4]The law to which I have had regard in consideration of the claimant’s application to amend requires me in exercising my general case management powers I have had regard to the Employment Tribunal (Constitution & Rules of Procedure) Regulations 2013 (“the Rules”) and the Guidance Note 1 of the Presidential Guidance on General Case Management.

[5]The guidance given by Mummery J in the case of Selkent Bus Company v Moore

[1996] ICR 836

sets out the non-exhaustive list of factors relevant to the exercise of discretion when considering amendment applications to consider that I should have regard to :a. The nature of the amendment

b. The applicability of time limits

c. The timing and manner of the application The overarching principle is stated to be : “Whenever the discretion to grant an amendment is invoked, the tribunal should take into account all the circumstances and should balance the injustice and hardship around the amendment against the injustice and hardship of refusing it.” [para4@843]

[6]In exercising my discretion I have had regard to the overriding objective under the Rules to enable me to deal with a case fairly and justly which includes as far as practicablea. Ensuring that the parties are on an equal footing; b. dealing with cases in ways that are proportionate to the complexity and importance of the issues c. avoiding unnecessary formality in seeking flexibility proceedings d. avoiding delay, so far as compatible with proper consideration of the issues and e. saving expense.

[7]To the extent that I consider in determining the timing of the application and the issue of the tribunals exercise of judicial discretion in relation to complaints that may be presented out of time having regard to s123 of he Equality Act 2010 I have regard to the guidance provided by the statute and authorities.

[8]Section 123 of the EA10 concerns time limits. It provides: “(1) Proceedings on a complaint within section 120 may not be brought after the end of—(a) the period of 3 months starting with the date of the act to which the complaint relates, or

(b) such other period as the Employment Tribunal thinks just and equitable. (3) For the purposes of this section— (a) conduct extending over a period is to be treated as done at the end of the period; (b) failure to do something is to be treated as occurring when the person in question decided on it. (4) In the absence of evidence to the contrary, a person (P) is to be taken to decide on failure to do something— (a) when P does an act inconsistent with doing it, or (b) if P does no inconsistent act, on the expiry of the period in which P might reasonably have been expected to do it.”

[9]The law provides that in respect of discrimination claims and detriment claims, if there is a continuing course of conduct it is to be treated as an act extending over a period. Time runs from the end of that period. The focus of the Tribunal’s enquiry must be on the substance of the complaint that the respondent was responsible for an ongoing state of affairs in which the claimant was less favourably treated. The burden of proof is on the claimant to prove, either by direct evidence or by inference from primary facts, that the alleged acts of discrimination were linked to one another and were evidence of a continuing discriminatory state of affairs see Hendricks v Commissioner of Police for the Metropolis

[2003] IRLR 96

CA.

[10]If any of the complaints were not in time, the Employment Tribunal must consider whether there is nevertheless jurisdiction to hear them. In discrimination cases the test is whether it is just and equitable to allow the claims to be brought.

[11]When deciding whether it is just and equitable for a claim to be brought, the Employment Tribunal’s discretion is wide and any factor that appears to be relevant can be considered. However, time limits should be exercised strictly and the Tribunal cannot hear a complaint unless the claimant convinces it that it is just and equitable to do so. The exercise of discretion is therefore the exception rather than the rule Robertson v Bexley Community Centre

[2003] IRLR 434

.The material judgment reads: “An Employment Tribunal has a very wide discretion in deciding whether or not it is just and equitable to extend time. It is entitled to consider anything that it considers relevant. However, time limits are exercised strictly in employment cases. When tribunals consider their discretion to consider a claim out of time of just and equitable grounds there is no presumption that they should do so unless they can justify failure to exercise discretion. On the contrary, tribunal cannot hear a complaint unless the claimant convinces it that it is just and equitable to extend time. The exercise of this discretion is thus the exception rather than the rule.”

[12]Case law provides that consideration of the factors set out in section 33 of the Limitation Act 1980 is of assistance. The Employment Tribunal should have regard to all the circumstances of the case, and in particular to the following:a. the length and reasons for the delay;

b. the extent to which the cogency of the evidence is likely to be affected by the delay;

c. the extent to which the party sued cooperated with any requests for information;

d. the promptness with which the claimant acted once he or she knew of the facts giving rise to the cause of action; and

e. the steps taken by the claimant to obtain professional advice once he or she knew of the possibility of taking action.

[13]In addition, when deciding whether to exercise its just and equitable discretion, the Employment Tribunal must consider the prejudice which each party would suffer as a result of the decision to be made (sometimes referred to as the balance of hardship test) British Coal Corporation v Keeble

[1997] IRLR 336

EAT.

[14]Failure to adopt a “checklist” approach carries the risk that a significant factor will be overlooked London Borough of Southwark v Afolabi

[2003] IRLR 220

CA. The amendment application

[15]I have considered the documents that are included in the bundle before me comprising 144 pages and the additional documents that have been submitted by the parties.

[16]The claimant in her original complaint details the claim to be of unfair dismissal and discrimination because of disability [para 8.1, page7] and details the complaint: “l was laid not to come is work anymore on 28.11 .2018 because: a). I did not do a top wash to a service user even though l offered 3 times but I was told no. I did it In the end with the intention to help out my colleagues. b). 1 did not put the ASDA shop order away knowing my disabilities. c). l could not leave the ﬂat assigned to ; no cover to watch my service users I was not a danger to any service users or colleagues and feel I should of been allowed to work my shifts already assigned to me (until 04.01.2019). Lost pay : £10455 .” Also the shifts that would of been assigned to me. Lost pay : 22171.75 .

[17]In her details of her claim at para 8.2 [8] the claimant details two complaints, a) unfair dismissal and b) Discrimination. Although the claimant’s complaint and the dismissal was been dismissed as being a complaint in respect of which the tribunal does not have jurisdiction, the claimant describes circumstances which she was told that led to the respondent deciding to temporarily cease her bank agreement shifts with effect from 28 November 2018. The claimant references that the she was given different reasons why her agreement was brought to an end, and that the dismissal was unfair and moreover that the events and circumstances that lead to her dismissal was discrimination because of her disabilities.

[18]In the broadest terms I read the claimants original complaint to assert that the termination of her Bank Agreement terms to work as a support worker for the respondent was an act of discrimination and that the events leading to the less favourable treatment was as a result of behaviour that the claimant says was arising from her disability and was discrimination.

[19]The claimant asserts that at the case management hearing before EJ Gaskell she had been ready to provide further particulars of her complaints of discrimination but, as general direction for a Preliminary Hearing to determine three preliminary issues was scheduled to be heard on 13 December 2019 she did not present the amendment application to the judge.

[20]At the Preliminary Hearing before EJ Kelly the claimants indicated that she wished to make complaints about the respondents treatment of her that discriminated against her since she began working for them in 2014. EJ Kelly directed the claimant to provide further particulars of her allegations of discrimination: “2.1 By 31 January 2020, the claimant must provide to the respondent, copying the Tribunal, details of the amendments to her claim which she wishes to make so as to add incidents of alleged disability discrimination from 19 November 2015 to 21 January 2019.”

[21]In response to the directions the claimant filed an application for amendment document on 27 January 2020 [54-83] and the respondent served objections to the application on 19 February 2020 [84-89].

[22]The respondent asserts in their objection that nowhere in her original details of complaint did the claimant assert an act of discrimination taking place after 28 November 2018. I conclude that the claimant’s claim form which states: “Discrimination: Due to everything I have stated above I believe I was discriminated against my disabilities even though I was fulﬁlling my job role line within the restriction notes from the GP&risk assessments put in place at work.” Although the claimant did not in her original application label the basis upon which she claimed she had been discriminated against whether direct discrimination, indirect discrimination, discrimination arising from disability or harassment it is evident that the complaint of discrimination related not only to the bank agreement review of 28 November 2018 and also the dismissal letter of the 21 January 2019.

[23]I remind myself that the claimant has participated in this hearing with the assistance of a Romanian interpreter as English is not the claimant’s first language.

[24]In the claimant’s application for amendment of the complaint that the application to mentor disability discrimination claim in the money she describes as being to use further evidence discrimination incidents that are detailed under 4 headings a) – d). I deal with each in turn. “a. The Claimant to be allowed to use further evidence of disability discrimination incidents occurred during the Claimant’s dismissal process & the dismissal day itself (21.01.2019) as per paragraph 4 from the Judgment’s "Reasons” & paragraph 2 from the ”0rder”(21january 2019) (the dismissal process starts on 28.11.2018, the day the Claimant was sent home based on health issues reasons (Fibromyalgia) given by management - Amanda Bell through a telephone call and agreed by Claire Garside who later on communicated this to the Claimant. Please note that, Tithe Barn] Priory Group of Companies did not handled the Claimant’s dismissal accordingly to their "Policy and Procedure" named “Disciplinary Procedure” (page 5 : section 4.4 - subsections 4.4.1, 4.4.2, 4.4.3, 4.4.4 8: 4.4.5) regarding the stages of dismissal process which should have been followed, which led again to the unfair dismissal of the Claimant, this way also not giving her the chance to also say her version of the events/incidents.”

[25]The respondent, raising their objections to the claimant’s application suggest that claim does not provide further particulars of information that was suggest there are amendments to the information contained within the ET1. The claimant in response on 2 May 2020 submitted a further document described as “Particulars of the “Amendments” of the “Disability Discrimination” claim” [102-106]. That document is prepared to anticipate all of the claimant’s application for amendment being allowed and at paragraph 14 [105] the claimant details the particulars in relation to the dismissal.

[26]I conclude that the claimant in an effort to address each of the objections raised by the respondent has sought to provide the context of her complaint and refers to documents which she considers relevant to the issue. The claimant refers at 14)f) [106] refers to: “f) Cover letter explaining the 4th & last reason of my dismissal which involves directly my disabilities : Complaint done by myself towards management involving SS’s treatment & reaction towards the activities that i found difficult to do sometimes or can’t do at all due to my disabilities, facts/activities that were documented in my Risk Assessments and that the management & SS herself were aware of (25/11/2018 + 29/11/2018 — incidents occurred on 28/11/2018) + (x1) rota picture showing myself & Becky Davies/Becky Watkins working together on 25/11/2018 on an early shift, fact linked to the complaint dated 25/11/2018; Complaint done by myself (21/11/2018) involving 55 & Ivone Warren where is described SS’s very offensive verbal behaviour & anger towards Ivone Warren who was not present there.”

[27]The essence of the claimant’s complaint is spelt out that her complaint is of direct disability discrimination and is discrimination because of something arising from her disability. The claimant asserts that the respondent failed to follow their procedures and it would seem that the claimant, who is not an employee and able to complain of an unfair dismissal, can seek only to suggest that the failure to follow a fair procedure was direct discrimination or something arising from her disability or at least evidence from which the tribunal may draw and adverse inference in their consideration of the discrimination complaint.

[28]The respondent in resisting the claimant’s application suggest that the evidence will show that the disciplinary procedure the respondent does not apply to ‘bank workers’. I have not had sight of the respondent’s procedure and instead the manner in which the respondent sought to temporarily suspend the claimant’s duties from 28th November 2018 until the termination of her engagement on 21 January 2019 will be a matter be determined by the tribunal hearing evidence in the case. Whilst I have regard to likely prospects of success of an allegation that the procedure adopted in terminating the claimant’s employment was itself an act of discrimination I am not in a position to conclude that such an allegation has no reasonable prospect of success.

[29]In dealing with a litigant in person and one for whom English is not her first language. I consider whether an amendment is required to be made by the claimant in so far as she asserts that the respondent’s treatment of her, in considering those matters which led to the suspension of her duties from 28 November 2018 until the termination of her working arrangement on 21 January 2019 are on the face of her complaint in her details at 8.2 of her ET1 application form.

[30]The respondent is legally represented in these proceedings and it is evident that the response filed by the respondent had identified at paragraphs 24,25 and 26 that the claims raised by the claimant related to the circumstances in relation to the claimants conduct that gave rise to her not being allocated shifts from 28 November 2018 and the termination of her contract and identified the claims they had to met to be that of direct discrimination and discrimination arising from her disability.

[31]In considering whether an amendment is required I have sought to undertake a non-technical approach to the original claim form and not an overly legalistic view of the terms in which the application is couched. The claimant says in very clear terms when she was told not to attend work any that she was treated differently to a named comparator, Vicky Walker “Nothing was told or happened to her, but I was sent home” and that “Claire Garside mentioned that, most probably my health conditions will not heal any more that means the situation will always been same and stop always complain they have not believed in me.”.

[32]When describing the reason why she was sent home on 25 November 2018 the claimant says “I refused to drive the company’s car &take residents out. I was still under the effect of a Tramadol(tablet taken the afternoon before for my pain in my arms). I did not fell safe to drive & didn’t want to endanger any resident or myself or others I traffic.”

[33]On a purposeful reading of the claim form the claimant refers to the complaint of discrimination to be due to “everything” she stated in her allegations of unfair dismissal to be discrimination against her disabilities. Aside only that the claimant did not explicitly label the matters she complained of as the particular prohibited conduct of direct discrimination or discrimination arising from her disability the essence of her complaint was clear.

[34]I find that taking into account the guidance in the case of Selkent Bus Company v Moore

[1996] ICR 836

I conclude that the original claim form contains the discernible facts of the complaint that were understood by the respondent as evidenced in their response. I conclude in relation to the first of the claimant’s amendment applications this is an amendment that seeks to attach the label to the complaint of which further particulars are given.

[35]The facts are set out in the complaint, albeit not as fully as the claimant later adds in the further particulars of her complaint submitted on 27 January 2020. To the extent, if at all, that the claimant’s application for amendment to the particulars in relation to paragraph a) amounts to an amendment I have reminded myself of the Selkent guidance and the Presidential Guidance in relation to amendment applications. I in general terms whether the amendment if made at the time when the original complaint was presented was in time. It will be a matter for the tribunal hearing all the evidence to determine whether some or all of the complaints are in time, however if the events which led to the suspension of the claimant from duty were part of a conduct extending over a period of time which culminates in the termination of the claimants work on 21 January 2019 the conduct will be treated as done at the end of the period under s123 of the Equality Act 2010.

[36]The claimant’s application to amend her claim of disability discrimination to add complaints of direct discrimination because of her disability and discrimination arising from her disability in relation to the events leading to the cessation of her working for the respondents or any of them from 28 November 2018 and the eventual termination of those arrangements on 21 January 2019 as detailed at paragraph a) is allowed.

[37]“(b). The Claimant to be allowed to use further evidence of discrimination incidents during employment (ET1 form) Bank Agreement contract (as the Claimant mentioned at the Preliminary Hearing on 13th December 2019, incidents/events which through repetition during employment led to the Claimant’s disabilities).

[38]At the Preliminary hearing before EJ Kelly on 13 December 2019 the claimant sought to rely on incidents and events during the entire course of her employment up to its termination. The claimant has not particularised the incidents or events to which she refers other than to those which founded the suspension of her duties on 28 November 2018 and ultimately to the termination of her contract. The claimant seeks to raise an entirely new claim that instance and events through repetition during employment led to the claimant’s disabilities. There is no reference to this claim on the face of her form ET1. In the claimant’s further particulars of the amendments of the disability discrimination claim [102-106] the claimant makes not further reference to incidents/events which through repetition during employment led to her disabilities.

[39]The amendment sought seeks to introduce an entirely new head of complaint and is one that is out of time. Even if the amendment was one which had it been entertained by EJ Gaskell at the September 2019 hearing it would have been presented nine months after termination of employment and four months after the original complaint was presented to the tribunal. The allegation made in the application is without any supporting evidence and the respondent does not have sufficient detail of the allegation to be able to answer the unspecified complaint against it.

[40]The claimant’s application to amend does not succeed.

[41]( c) The Claimant to be allowed to use further evidence of disability discrimination incidents during employment/Bank Agreement contract (as per paragraph 4 from the Judgment's “Reasons") which occurred and were stated in the ET1 form at page 7, point 8.2* & in the joint bundle at page 8, incidents from the day of 28.11.2018 . It is clearly shown in these disability discrimination incidents occurred on 28.11.2018 that also staff’s complaints contributed to the Claimant's unfair dismissal besides the management’s disability discrimination towards the Claimant. This further proves Constructive Dismissal based on disability discrimination (which is included into the Unfair Dismissal as it is confirmed in the ET1 form at page 6, point 8.- 8.1* and in the joint bundle at page 7) (paragraph 3 from the ”Judgment”). Complaints to the office from staff regarding the Claimant’s disabilities kept repeating themselves during the Claimant's Bank Agreement period 81* due to poor management action & lack of action at times, things led later on to the Claimant’s unfair & constructive dismissal. The Claimant sent together with her Amendments : - 2 letters dated 28.12.2018 (letter informing the claimant about a meeting to take place on 16 January 2019 where she will have the chance to talk about my concerns : what happened on 28.11.2018 stated in the complaint dated 29.11.2018) & 21.01.2019 (dismissal letter & their reasons) ; - 2 letter-complaints done by the claimant towards MB, the manager at that particular time, dated 25.11.2018 & 29.11.2018. (this last letter— complaint was not considered at all on the 16th January 2019’s meeting as the letter dated 28.12.2018 stated) ,- - Policy and Procedure called ”Disciplinary Procedure”. These 5 extra documents are being produced/sent in order to help out for the situation to be understood easier/better.”

[42]The claimant seeks to extend the scope of her complaint to incidents during employment beyond those incidents to which she does refer in the claim form at 8.2 [8] and to which the amendments described at paragraph (a) above have been accepted. The claimant has failed to particularise the alleged incidents beyond those leading to the suspension of duties on 28 November 2018 and the termination of her contract on 21 January 2019. In the claimant’s documents submitted on 2 May 2020 the particulars of the amendments of the disability discrimination claim [102-106] the claimant is particulars that she wishes to be taken into consideration. The particulars paragraphs 1) – 6) referred to instance that would seem to have occurred between 2011 and 2014. Whilst historical background may form part of the evidence which a tribunal may take into account when being asked to draw inferences discrimination claims describe with sufficient specification a complaint that can reasonably be understood by the respondents.

[43]The claimant at paragraphs 7 to 13, provides particulars the amendment, to the extent it is required of the claimants complaints in respect of the events leading to suspension of the duties on 28 November 2018 and subsequent termination of the contract.

[44]In considering the amendment application the extent to which the claimant seeks to rely upon events during the course of her working relationship with the respondents, other than those that are covered with scope of the amendment at paragraph (a) requires me to consider whether they are raising a new cause of action or simply re-labelling the facts that already contained in the original claim form. The complaints in the amendment identified in this paragraph relate to events that have occurred several years before the claimant’s contract with the respondent was brought to an end and are very many years out of time. The introduction of complaints in so distant a past requires the respondent and any witnesses who remain in the employment to resurrect memories that are long faded and likely unreliable. The claimant made no discernible refence to such complaints in her original complaint nor in the original amendment application submitted 27 January 2020 until more particulars were provided on 2 May 2020. The further particulars [102-106] are themselves not sufficiently full to enable the respondent to be able to identify the alleged prohibited discriminatory conduct about which the claimant complains. The application to amend does not succeed.

[46](d) The Claimant to be allowed to use further evidence of disability discrimination incidents/events regarding promotions during the employment/Bank Agreement contract as per paragraph 4 from the Judgment’s ”Reasons”. Nor was given to the Claimant equal chances as per Tithe Barn’s/Priory Group’s Policy & Procedure of ”Equality and Diversity” as it should have been given to all of their types of employees/staff (full time, part—time 8: bank workers).

[47]The claimant provided no particulars of what she asserts are “equal chances”. The amendment application submitted on 27 January 2020 does not include sufficient detail for the respondent to understand the complaint that it is required to answer. In the particulars of the amendment the disability discrimination claims submitted on 2 May 2020 at paragraph 11 [104] refers again to “ No equal chances given to me comparing to some of my colleagues opportunities (to some of my colleagues, the position was just given & others of them were just asked if they want it without any kind of competition/test/interview)” The claimant has however not provided details of the complaint in respect of precisely which opportunities the claimant was denied, when and by whom. The claimant has not identified the nature of the discrimination that she alleges was the prohibited conduct.

[48]The application to amend the complaint in this regard does not succeed.

[49]In reaching the conclusions that I have in determining this application I have sought to weigh the merits of the applications. In exercising my general case management powers I have had regard to the Employment Tribunal (Constitution & Rules of Procedure) Regulations 2013 (“the Rules”) and the Guidance Note 1 of the Presidential Guidance on General Case Management and the guidance given by MummeryJ in the case of Selkent Bus Company v Moore

[1996] ICR 836

which set out the non-exhaustive list of factors relevant to the exercise of discretion when considering amendment applications to consider:a. The nature of the amendment

b. The applicability if time limits

CONCLUSIONS

[50]In exercising my discretion I have had regard to the overriding objective under the Rules to enable me to deal with a case fairly and justly which includes as far as practicabled. Ensuring that the parties are on an equal footing; e. dealing with cases in ways that are proportionate to the complexity and importance of the issues f. avoiding unnecessary formality in seeking flexibility proceedings g. avoiding delay, so far as compatible with proper consideration of the issues and h. saving expense.

[51]Considering each of the key factors to which I should have regard in exercising my discretion I have considered the amendment application: The nature of the amendment

[52]The claimant was first directed to provide amended particulars by EJ Kelly in order dated 23 December 2019. The respondent suggested that the claimant had by that time already made applications to amend her particulars when she sought to amend the conditions she identified as the disabilities. It was not until preliminary hearing before Employment Judge Kelly that the claimant sought to particularise the alleged discrimination just the entire period of her employment since 2014. In light of the fact the claimant was found to be disabled person from 19 November 2015 any complaint of disability discrimination can be founded only from that date.

[53]The nature of the claimants amendments extends significantly beyond the facts set out in her original application the reasons that I have it out in my analysis above. In relation to the applicability of time limits

[54]EJ Gaskell has identified that the consideration of jurisdiction in relation to time limits will be determined by the Tribunal at the final hearing, I am however to weigh the likely application of time limits in the balance. The claimant refers primarily to the termination of her contract with the respondent on 21 January 2019 as the final act of discrimination and, for the reasons I have articulated in relation to the amendment application (a), the claimant will assert that the events that caused her suspension on 28 November 2018 were conduct extending over a period ending with the termination of her contract on 21 January 2019. The claimant entered into conciliation through ACAS on 20 March 2019 and early conciliation came to an end when a certificate was issued on 12 April 2019. The claimant presented her complaint on 2 May 2019 and claims are in time in so far as they occurred on or after 22 December 2018.

[55]I conclude that in relation to the applicability of time limits the complaint that the claimant raised as detailed in (a) are presented in time and to the extent that the circumstances that occurred on or before 21 December 2018 are not presented in time to the extent they were allegations in respect of the events that were grounds for the suspension of the claimant’s work from 28 November 2018 it might be considered just and equitable to extend time to consider that complaint presented not in time.

[56]In considering the allegations that the claimant makes upon which she seeks to be permitted to make the amendment at (b) and (c) and (d) the claimant has made no application until 27 January 2020 that has not been particularised at all and not then more fully until the additional particulars presented on 2 May 2020.The application is made significantly out of time referring in particular to events predating the date from which claimant has been found to be disabled. I consider that there is little reasonable prospect of a tribunal finding that it would be just and equitable to extend time to entertain complaints which would have arisen before the matters about which the amendment (a) is made. I haee considered the respondents reasonable complaint that to entertain the out of time complaints that predate the events leading to the suspension on 28 November 2018 would require examination of evidence the cogency of which would be adversely impact upon the responded. The timing and manner of the application –

[57]The Selkent guidance para5(c) offers guidance on the relevance of the timing and the manner of the application. An application to ament should not be refused soley because there as been a delay in making it. Delay is however a discretionary fact. I am asked to consider why the application was not made earlier and why it is being made when it is.

[58]In this case the claimant has provided her explanation for her delay in a witness statement sent to the tribunal and the respondent dated 2 June 2020 before the hearing of this Preliminary Hearing [115-144.. The claimant asserts that her understanding was that: “by not mentioning a specific period for when the ‘discrimination’ and & disability discrimination took place, it was clear that the reference was made for the whole period of the Claimant’s services in the Tithe Barn (21/10/2010 – 21/01/2019),”

[59]Whilst I appreciate the claimant’s command of the English language is not that of a native speaker her understanding of when a cause of a complaint arises is not dependant upon the language. The claimant is disingenuous in suggesting that the omission of specific detail means implicitly the complaint relates to the entire period of her employment. EJ Kelly was clear in identifying to the claimant at 2.1 of her Order [42] that: “By 31 January 2020, the claimant must provide to the respondent, copying the Tribunal, details of the amendments to her claim which she wishes to make so as to add incidents of alleged disability discrimination from 19 November 2015 to 21 January 2019.”

[60]The suggestion that the complaints relate to the entire period of employment and that it was not detailed as a complaint sooner than is was is not a credible one.

[61]Giving consideration to the overriding objective Adopting a forgiving approach to the claimant’s default as I do, her explanation for the delay does not bear scrutiny. The claimant entered early conciliation on 20 March 2019 which ended on 12 April 2019. The claimant subsequently lodged her complaint on 2 May 2019. The claimant relies primarily on the decision to terminate her contract on 21 January 2019 and on the circumstances that led to the suspension from duties on 28 November 2018 to found her complaints of disability discrimination, that complaint I have found has a foundation int eh facts set out in sufficient detail in the original complaint at 8.2 [8]. The complaint was presented within time as extended by the Early Conciliation procedures which were commenced within the period 3 months after the last act of alleged discrimination , the termination on 21 January and thereafter within one month of the date of issue of the Early Conciliation certificate.

[62]In examination the claimant has suggested that she was made expressly aware by the CAB of the right to present a complaint of disability discrimination to an Employment Tribunal on 12 September 2019. I find her suggestion that she was not aware of the time limit as she had by that time already presented her complaint to the Tribunal and refers within it to the Equality Act 2010 and to Human Rights [8].

[63]The claimant’s amendment application and the further particular provide no explanation for the reasons why the complaint was not presented sooner than it was.

[64]Taking as I do the most generous version of the claimant’s suggestion that she had the amendment application at hand to present to the Tribunal before EJ Gaskell at the hearing on September 2019 the claimant even then was four months late in presenting her complaint which, to be in time ought to have been made by 11 May 2019.

[65]The claimant details in her witness statement [122-126] at 3) a)-f) the “Reasons why the ‘amendments’ were not forwarded earlier and why her ‘amendments’ should be accepted by the ET” In contradiction of her claim that she had the ‘amendment’ ready to present to EJ Gaskell at his hearing on 12 September 2019 that claimant suggests that it was not until EJ Kelly gave her direction that the claimant submit written particulars of her amendment complaint that “she did not thought at all that she was allowed to change her claims/title once she submitted her ET1 form on 2/05/2019.”

[66]Having had regard to all the circumstances of this case I conclude the claimant has produced further information about the nature of her claims as she seeks to amend them in a piecemeal fashion and even now the respondent is bereft of full detail of the complaints as they related to matters before those she raises in the amendments other than the amendment a). The claimants explanation for her delay in making the amendment application is inconsistent and provided only in her witness statement dated 2 June 2020.

[67]The claimant seeks to introduce wide ranging allegations of discrimination that stretch back in time to the start of her contract in 2010. Even when the complaints must be limited to take account of the fact that the complaint of discrimination related to the protected characteristic of disability can only extend back to the date from which the claimants is found to be disabled, from 19 November 2015 the scope of the complaint placed an unfair imbalance as the respondent is prejudiced in responding to matters that are historical complaints.

[68]I am led to conclude that in respect of all but the amendment a) the claimant’s pleaded complaints are those which may at least be timely and are ones which on their face have some even if little reasonable prospect of success. The amendment sought b),c) and d) if allowed would without doubt disadvantage the respondent disproportionately in terms of their ability to recall and call evidence to rebut the complaints and the expense in time and cost of preparation of defence of the complaints. The application to amend as set out 1b) - d) is an application to fundamentally change the nature of the complaint against the respondent and in all the circumstances the balance of injustice and hardship in allowing the amendment is outweighed by the hardship in caused to the respondent in allowing it. The claimant is not without remedy in so far as the allegation of the most recent complaint of discrimination is before the Tribunal.

[69]For all of the reasons that I have set out above and having had regard to the overriding objective I conclude that the claimant's application to amend her claim of disability discrimination to add matters arising before her dismissal from October 2014 does not succeed save in regard the matters in 1a) of the amendment application. Signed by _____________________ on 8 October 2020