[1]The tribunal decided to refuse the claimant’s application to amend the claim form to introduce a complaint of failure to make reasonable adjustments.[2]The claim of an unauthorised deduction from wages (in respect of the 25 payment of injury benefit) will now proceed to be listed for hearing.
REASONS
[3]The hearing today was arranged to determine the claimant’s application to amend the claim to include a complaint under section 20 Equality Act, that the respondent had failed to make reasonable adjustments.
Background
[4]The claimant presented a claim to an Employment Tribunal in England and Wales on the 7 August 2018. The claimant had, on the form, ticked the box indicating he was bringing a claim in respect of disability, arrears of pay and other payments. The narrative on the claim form related to an injury at work 35 and a dispute regarding payment of an injury at work benefit.[5]A Preliminary Hearing took place on the 23 January 2019 at which the claimant confirmed he was seeking payment of injury at work benefit as an unauthorised deduction from wages. The Employment Judge, in the Note following the hearing, noted that during a lengthy discussion with the claimant to clarify the discrimination claim, “the claimant explained that the non-5 payment of the benefit was not advanced as a claim of direct discrimination”.[6]The Note went on to set out that the claimant (who is a disabled person in terms of the Equality Act) did not have a return to work interview when he returned to work; he informed his manager that he was unable to stand for any lengthy period as a result of his long-standing conditions which had been made more difficult by his knee injury and that despite many requests during his shift to be permitted to sit down, he had been required to stand throughout the period of his shift.[7]The Employment Judge noted the claimant would have to make an application to amend his claim to include a complaint of failure to make reasonable adjustments, and the claimant confirmed he wished to do so.[8]The respondent’s representative confirmed their objections to the application to amend by email of the 15 February 2019.[9]The claimant responded to this by email of the 18 February 2019, and the respondent’s representative made further written comments by email of the 21 February 2019.[10]The application to amend was not dealt with: it was placed on the back burner pending resolution of the claimant’s application to have the case transferred to Scotland. This was finally resolved when the case was transferred on the 4 February 2020.[11]The first case management preliminary hearing arranged for the 4 May 2020 did not take place because the claimant felt unwell. The preliminary hearing was rearranged for the 18 June 2020, at which point it was agreed the outstanding application to amend required to be determined.[12]I heard submissions from the claimant and Dr Gibson. Claimant’s submissions[13]The claimant’s position was that he had, in the claim form, put forward the “bare bones” of his claim, thinking that he would have an opportunity to explain the whole story at a hearing. The claimant noted he was not represented and questioned how he was meant to understand what the correct completion of the form entailed.[14]The claimant did not consider the allegations were new because he had raised them with the employer at the time. The claimant did not believe the respondent would be prejudiced by the inclusion of the amendment because they kept meticulous records and all the witnesses were still employed by the 10 respondent.[15]The claimant submitted it would be just and equitable to allow him to amend the claim form because he would suffer prejudice if not allowed to proceed with this aspect of his claim.[16]The claimant referred to the case of Abertawe Bro Morgannwe University v Morgan 2018 ICR 1194 where the claim had been brought by someone with a depressive illness (like the claimant) and the tribunal had commented that “it should be assessed from the claimant’s point of view”.[17]The claimant considered the respondent knew exactly what his claim was about even though he had not set it all out in the claim form. 18. (The remainder of the claimant’s submission related to his claim for payment of the injury benefit and is not included here because it is not relevant.) Respondent’s submissions[19]Dr Gibson set out the background to the claim and noted the respondent had, when returning the ET3, included a defence to a direct disability discrimination claim which they assumed the claimant was making in relation to the payment of injury benefit. Dr Gibson invited the tribunal to note the respondent also stated in the ET3 that the claimant had provided insufficient details to allow them to properly respond to the claim.[20]Dr Gibson referred to the Note issued by the Employment Judge following the first preliminary hearing on the 23 January 2019, where the reasonable adjustments claim was set out. The claimant’s application to amend the claim related to the reasonable adjustments claim as articulated in that Note.[21]Dr Gibson noted the claimant’s position that he thought he had to put “the bare bones” of the claim on the claim form, but submitted this was not correct. He referred to the case of Chandhok v Tirkey 2015 ICR 527 where the EAT had made reference to the ET1 not simply being to set the ball rolling. The respondent must know what case they are facing.[22]Mr Gibson referred to the cases of Cocking v Sandhurst Stationers Ltd 1974 ICR 650 and Selkent Bus Co Ltd v Moore 1996 ICR 836 which had referred to the tribunal requiring to carry out a careful balancing exercise of all the circumstances, which would include relevance, reason, fairness, justice, and hardship to the parties of allowing or refusing the amendment. In particular the tribunal should consider the nature of the amendment, time limits and the timing and manner of the application.[23]Dr Gibson submitted, in relation to the nature of the amendment, that it sought to add an entirely new claim, unconnected to what was in the ET1 claim form. It was not a relabelling of existing facts. The parties could agree the claimant suffered an injury at work, but beyond that there was nothing in the claim form regarding the consequences of that injury beyond an alleged failure to pay more injury benefit. There was nothing in the claim form to give any clue to there being a reasonable adjustment claim.[24]Dr Gibson noted the alleged failure to make reasonable adjustments related to the period 15 September 2017 to 17 October 2017 when the claimant returned to work following the knee injury. The application to amend the claim was made 16 months after the alleged incident; and three years had now passed since those events. It was submitted there would be a prejudice to the respondent if the application to amend was allowed because of this passage of time impacting on the cogency of the evidence. Memories were likely to fade and it would not be fair to expect witnesses to recall accurately what they said and why they said it. Furthermore, the respondent would likely need to call additional witnesses to speak to these events if the amendment is allowed.[25]Dr Gibson submitted, in relation to time limits, that the (oral) application to amend the claim was made five months after the claim had been presented (at the preliminary hearing on the 23 January 2019). The claim had been presented 10 months after the alleged incident. The claim was significantly late.[26]The claimant knew of the facts relating to the alleged failure to make reasonable adjustments and ought to have included this on the claim form. 27. Dr Gibson noted there was no suggestion of there being a continuing act. He submitted it was clear in any event that the alleged failure to make reasonable adjustments was a one-off act, and that time to make a claim started to run from the time of the alleged act.[28]In conclusion, Dr Gibson submitted the application to amend the claim sought to introduce a new claim which was timebarred, and that there would be significant prejudice to the respondent in allowing the amendment. Dr Gibson invited the tribunal to refuse the application. Discussion and Decision[29]I had regard firstly to the fact employment tribunals have broad discretion to allow amendments at any stage of the proceedings, but such discretion must be exercised in accordance with the overriding objective of dealing with cases fairly and justly. I was referred to the case of Selkent Bus Company Ltd v Moore (above) and it is helpful to set out the guidance given in that case as to how tribunals should approach applications for leave to amend. It was said that in determining whether to grant an application to amend, an employment tribunal must always carry out a careful balancing exercise of all the relevant factors, having regard to the interests of justice and to the relative hardship that would be caused to the parties by granting or refusing the amendment. The relevant factors to consider would include:• the nature of the amendment – is it a minor matter or a substantial alteration pleading a new cause of action;• the applicability of time limits – if a new claim is proposed to be added by way of amendment, it is essential for the tribunal to consider whether that claim is out of time and if so, whether the time limit should be extended and• the timing and manner of the application – this includes considering why the application was not made earlier.[30]The EAT in Selkent also approved and restated the principles set out in the earlier case of Cocking v Sandhurst (Stationers) Ltd (above) where it was said that in exercising their discretion, tribunals must have regard to all the circumstances, and in particular to any injustice or hardship which would result from the amendment or a refusal to make it.[31]I next turned to consider the nature of the amendment sought by the claimant. I have set out above the fact the claimant, when completing the claim form, ticked the box indicating his claim concerned disability discrimination and payment of money (the injury benefit). The claimant, having ticked the box indicating disability discrimination, did not put any details or information in the claim form regarding this type of claim.[32]The first reference to a complaint regarding an alleged failure to make reasonable adjustments was at the preliminary hearing on the 23 January 2019, some five months after the claim had been presented.[33]The claimant, at this hearing, argued strongly that the complaint regarding an alleged failure to make reasonable adjustments, was not a new claim because he had previously raised it internally with his employer. This however misunderstands what is meant by “new claim” in the context of an amendment. A “new claim” relates to whether there was any reference to such a claim (either factually or otherwise) in the claim form. I was entirely satisfied, having had regard to the claim form, that there was no reference to any complaint of a failure to make reasonable adjustments and no reference to any facts relating to that claim. Accordingly, when the matter was raised on the 23 January 2019, it was the first time it had been raised.[34]I accordingly concluded, with regard to the nature of the proposed amendment, that it sought to introduce a new cause of action.[35]I next considered the issue of time limits because if a new complaint is sought to be added, it is essential for the tribunal to consider whether that complaint is out of time and, if so, whether the time limit should be extended under the applicable statutory provisions (section 123 Equality Act).[36]There was no dispute regarding the fact the incident to which the claimant referred regarding the alleged failure to make reasonable adjustments, occurred during the period 15 September 2017 and 17 October 2017 when he returned to work. If we take the latest date, being 17 October 2017, the claimant had a period of three months (less one day) in which to bring his claim. The amendment application was not made until 23 January 2019. The proposed claim is therefore 15 months late.[37]I accepted Dr Gibson’s submission that the incident referred to in the complaint of failure to make reasonable adjustments was a one-off act, and not a continuing act.[38]I must consider whether it would be just and equitable to extend the time limit for making the claim of failure to make reasonable adjustments. I was referred to the case of British Coal Corporation v Keeble 1997 IRLR 336 where the EAT suggested tribunals considering whether to exercise their discretion to allow a late claim, may be assisted by considering the following factors:(a) the length of, 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 has co-operated with any requests for information;(d) the promptness with which the claimant acted once he knew of the facts giving rise to the cause of action and(e) the steps taken by the claimant to obtain appropriate advice once he knew of the possibility of taking action.[39]A number of subsequent cases (Department of Constitutional Affairs v Jones 2008 IRLR 128 and Abertawe Bro Morgannwg University Local Health Board v Morgan 2018 ICR 1194) have made clear that the above factors are a useful guide and nothing more.[40]I have set out above the fact there has been a delay in bringing the complaint of failure to make reasonable adjustments of some 15 months. The claimant explained the delay had been caused by his mistaken belief the claim form was simply a document to get the case going, and that he would have an opportunity to explain everything in full to an Employment Judge at a hearing. I could not accept this explanation from the claimant for three reasons. Firstly, although the claimant is an unrepresented party, it was clear from what he said that he has made at least three claims against his employer. The claimant told me he had made an earlier claim regarding failure to make reasonable adjustments, in connection with an adjusted chair. That claim had been successful. He had also made a harassment claim. He was, accordingly, not unfamiliar with the process, and not unfamiliar with completing a claim form.[41]Secondly, the claimant referred to setting out the “bare bones” of his case, but he had not even done this in respect of any complaint of discrimination. There was no hint of a complaint of failure to make reasonable adjustments in the claim form. 42. Thirdly, the case of Chandhok (above) to which I was referred, made clear that “the claim, as set out in the claim form, was not something just to set the ball rolling or as an initial document necessary to comply with time limits but which is otherwise free to be augmented by whatever the parties choose to add or subtract merely upon their say so. Instead, it serves not only a useful but necessary function. It sets out the essential case, and it is that to which a respondent is required to respond. … the starting point is that parties must set out the essence of their respective cases on paper”[43]The claim form presented by the claimant was completely silent regarding any complaint of failure to make reasonable adjustments and silent regarding any factual basis relating to that claim. The claimant gave no hint in the claim form of any complaint of failure to make reasonable adjustments.[44]The claimant argued the cogency of evidence would not be affected by the delay because the respondent kept meticulous records. I did not doubt the respondent, given the nature of its work, would keep very good records, but I accepted Dr Gibson’s point that notwithstanding good record keeping, it was at the very least doubtful that records would go into the detail of whether the claimant had been required to stand, or whether he had made requests to sit during the shift. Accordingly, this point would come down to the memory of those involved regarding an incident alleged to have occurred three years’ 10 ago.[45]There was no issue with point (c) above. In relation to point (d), there was no dispute regarding the fact the claimant knew of the facts giving rise to the cause of action (failure to make reasonable adjustments) at the time he completed and presented the claim form. 46. I, in addition to the above factors, also took into account the prejudice to the parties of allowing or refusing the application to amend. On the claimant’s side, he argued there would be prejudice to him if the application to amend was refused because he would lose the opportunity to pursue this part of the claim. I accepted this, on the face of it, was correct. However, I balanced this with the fact that it was very clear, from having spoken with the claimant and from his correspondence, that the essence of the claim related to the payment of the injury benefit. This is the theme to which the claimant returned time and again when speaking about his claim: it is the focus of the claim.[47]I noted that on the respondent’s side the prejudice would arise from having to defend a claim which was not in the claim form. There was a dispute between the claimant and Dr Gibson regarding whether additional witnesses would require to be called if the amendment was allowed. I considered the issue of which witnesses to call is a matter for each party or their representative. I accordingly had no reason to doubt Dr Gibson’s position that the amendment would result in different witnesses having to be called to give evidence regarding the failure to make reasonable adjustments claim. In addition to this I accepted that although there may be records, reliance would be placed on the memories of those involved regarding the particular detail of what occurred during a shift three years ago and why any such decisions were made.[48]I also had regard to the fact the claimant referred to “mental health difficulties” which led to a preference to explain things orally than in writing. I considered however that this was a general point made by the claimant which did not relate specifically to the issue of why he had not included a complaint of failure to make reasonable adjustments in the claim form. Furthermore, the claimant’s email of the 18 February 2019 demonstrated an ability to very fully respond to the objections raised by the respondent regarding the application to amend.[49]I, having had regard to all of the points set out above, concluded a complaint of failure to make reasonable adjustments had been raised late, and that it had not been brought within such other period as was just and equitable in all the circumstances.[50]I lastly considered the timing and manner of the application to amend, which includes consideration of why the complaint was not raised earlier. There was no dispute regarding the fact there was no hint of a complaint of failure to make reasonable adjustments in the claim form, and that it was raised for the first time during the preliminary hearing on the 23 January 2019, when the Employment Judge endeavoured to understand the basis of any discrimination claim. I understood that up to that point the assumption (due to lack of specification) was that any complaint of disability discrimination related to the limited payment of injury benefit.[51]I have now considered all of the relevant factors. I noted (TGWU v Safeway Stores Ltd EAT 0092/07) that the fact the relevant time limit for presenting the new claim has expired, this does not prevent the tribunal exercising its discretion to allow the amendment, although it will be an important factor on the side of the scales against allowing it.[52]I have concluded (above) that the amendment sought to introduce a new cause of action. There had been no hint of such a claim in the claim form. I further concluded the time limit for presenting a complaint of failure to make reasonable adjustments had expired, and that it had not been brought within such other period as was just and equitable. I considered those factors pointed to refusing the application to amend. However, before making a decision in this case, I asked myself whether there were any factors which would swing the balance back the other way. I concluded there were not, and I was persuaded in that conclusion by the fact the claimant had some experience of completing claim forms as demonstrated by the fact he had brought other claims against this employer and by the fact this claim is fundamentally about the payment of injury benefit.[53]I decided, having had regard to all of the above points, to refuse the application to amend the claim form.[54]The claimant’s claim of an unauthorised deduction from wages in respect of the payment of injury benefit will now proceed to be listed for hearing.[55]The claimant will not require to call his GP as a witness for the hearing, or to demonstrate that he is a disabled person in respect of the mental impairment of anxiety because there is no complaint of disability discrimination to be determined by the tribunal. The only issue to be determined by the tribunal at a Hearing will be whether there was an unauthorised deduction from wages of the sum of 4.5 months injury benefit. Correction to Note Following Preliminary Hearing dated 1 July 2020[56]The Note issued following the preliminary hearing on the 18 June 2020 states, at paragraph 2, that the claimant brings a claim of direct disability discrimination in terms of section 13 Equality Act and an unauthorised deduction from wages claim.[57]The claimant is not bringing a claim of direct disability discrimination and the statement made in paragraph 2 of the Note is an error. The claimant, at the preliminary hearing on the 23 January 2019 very clearly told the Employment Judge that “The non-payment of the benefit was not advanced as a claim of discrimination”.[58]The error in the Note dated 1 July 2020 is hereby corrected.[59]The only claim being pursued by the claimant is one of an unauthorised deduction of wages in respect of the payment of injury benefit. Amount claimed by the claimant[60]The claimant clarified at today’s hearing that he was seeking payment of 4.5 months injury benefit. Employment Judge: Lucy Wiseman Date of Judgment: 03 November 2020 Entered in register: 19 November 2020 and copied to parties EMPLOYMENT TRIBUNALS (SCOTLAND) Case No: 1303710/2018 Held in Glasgow on 22 and 23 August 2022 Employment Judge L Wiseman Mr A Home Office Border Force Claimant Not present and Not represented Respondent Represented by: Mr A Gibson - Solicitor
Findings of fact
[62]I concluded the evidence supported a finding and conclusion that the claimant had a pre-existing condition involving his knees, prior to attending the training course. I further concluded that pre-existing condition was exacerbated by the training undertaken and resulted in a soft tissue injury.[63]The real issue in dispute in this case was the length of time for which the injury benefit should be paid. Dr Raynal confirmed the injury qualified as a work related injury and that the absence caused by the injury was the period 12 - 14 September and 13 October to 10 December 2017. Dr Raynal limited the period because her medical opinion was that “on the balance of probabilities, [the claimant’s] ongoing knee pain after 1 1 December 2017 ... is more likely to be related to underlying musculoskeletal problems, such as a likely wear and tear condition (osteoarthritis) in his knees related to his morbid obesity, as well as gout and the knock on effect of his diabetic peripheral neuropathy, which has caused foot/ankle joint dysfunction and is likely to have put strain on the joints higher up his legs”.[64]Mr Harper accepted the recommendation of Dr Raynal. I noted his evidence that it is usual practice to accept the recommendation in full. Mr Harper is not a medical professional and I considered it entirely reasonable for him to be guided by Dr Raynal’s recommendation in circumstances where she is the appointed medical expert and where she has had an opportunity to consider all of the relevant information.[65]The claimant disagreed with Dr Raynal’s opinion and, relying upon the GP report (and Fit Notes), argued he should have been paid full pay for a further 4.5 months because he had ongoing issues with his left knee.[66]The claimant did not appeal Mr Harper’s decision and he did not seek or produce any further medical information to suggest the ongoing issue with his knee was caused by the training course and not, as Dr Raynal had concluded on the balance of probabilities, by other factors such as osteoarthritis; morbid obesity; gout and diabetic peripheral neuropathy.[67]The respondent conceded the payment of Injury Benefit is “wages" for the purposes of this hearing. Accordingly, the issue to be determined is the amount of wages properly payable to the claimant.[68]Mr Gibson submitted that wages contingent on an event which does not happen, are not properly payable (Lucy and others v British Airways pic above). In that case the respondent had shut Manchester Airport and not rostered staff for work. The claimants brought a claim of unauthorised deduction from wages in respect of allowances they would have earned had they been flying. The appeal failed because it was held the claim brought was not in respect of wages. It was said that “there is an obvious and fundamental difference between basic wages or salary payable periodically to an employee who works or is ready, willing and able to work if no work is provided, for example if s/he is on gardening leave, and remuneration which is only earned if specific tasks are carried out, for example, commission on sales or allowances for flying. The latter form of remuneration can only become payable to the employee if the applicable task is carried out. After closure of the airport the claimants did not carry out flying duties. They did not therefore earn allowances. The claims are not claims for wages but for damages for loss of the opportunity to earn the allowances/’[69]Mr Gibson drew a parallel with this case when submitting the claimant’s entitlement to pay was conditional on the absence being attributable to an injury at work. The condition was met up until 10 December, but was not met in the period from 1 1 December to April 2019. The claimant was not entitled to injury benefit in that period and therefore no wages were properly payable in that period.[70]I, in considering this submission, had regard to the terms of the Injury Benefit scheme and noted there must be a “qualifying injury” and that is one which is solely attributable to the nature of the person's duty or arises from an activity incidental to it. Dr Raynal accepted there was a qualifying injury for the period 12-14 September and 13 October to 10 December. Thereafter, there was not a qualifying injury because Dr Raynal concluded the ongoing knee pain was more likely to be related to underlying musculoskeletal problems.[71]Mr Harper accepted Dr Raynal’s recommendation and authorised sick leave excusal for the period 12-14 September and 13 October - 10 December. The claimant was paid full pay for these periods.[72]I concluded, on the basis of the above facts, that the wages properly payable to the claimant have been paid and therefore there was no deduction from wages. I say that because Dr Raynal concluded there was no qualifying injury in the period following 10 December because the ongoing knee pain was more likely to be related to underlying musculoskeletal problems. Therefore, no injury benefit could be claimed, and the claimant had no entitlement to wages in the period following 10 December.[73]Mr Gibson did also argue that any deduction from wages was authorised. It was submitted the claimant continued to be off sick for reasons not attributable to his injury at work and therefore he was not entitled to injury benefit. The deduction (that is, the non-payment of wages) was authorised by the terms of the Injury Benefit scheme and the Superannuation Act.[74]I accepted this submission. I have set out above that it was entirely reasonable for the respondent to accept and be guided by the recommendation of Dr Raynal. The respondent, acting on that recommendation, accepted the claimant had a qualifying injury for the period 12 - 14 September and 13 October to 10 December. The respondent paid full pay for those periods.[75]The respondent did not pay wages for the period 1 1 December 2018 to April 2019. There was a deduction from wages. The deduction was authorised because the claimant did not have a qualifying injury to entitle him to payment under the scheme.[76]I understood the claimant’s claim is for payment of wages for the period from 1 1 December to April 2019. The argument to support payment of wages for this period was that he was signed off as unfit for work by his GP because of “work related knee injury". The claimant, in bringing his claim, wished this tribunal to decide Dr Raynal was wrong or that the respondent should not have accepted her recommendation. There was no evidence to allow the tribunal to take the decisions desired by the claimant, because there was no medical evidence to say Dr Raynal may have been wrong in her conclusions.[77]I, in saying that, acknowledge the Fit Notes referred to “work related knee injury" but there was no medical evidence to counter the conclusion of Dr Raynal that the ongoing issues with the left knee were more likely related to underlying musculoskeletal problems. The report obtained from the claimant’s GP did not undermine or contradict that conclusion.[78]I, in conclusion, decided to dismiss the claim because the claimant was paid the wages properly payable to him and there was no deduction from wages, )or, if there was a deduction from wages, it was authorised). ]0