Miss B Allatt v Midlands Partnership University NHS Foundation Trust: 1305709/2024
EMPLOYMENT TRIBUNALS
Case No 1305709/2024
Between
Miss B AllattClaimantMidlands Partnership University NHS Foundation TrustRespondent
Before
Employment Judge BansalIn person for claimantMr J Heard (instructed by Counsel) for respondentDate 28 November 2025
REASONS
[1]At a Public Preliminary Hearing held on 9 September 2025 the claimant’s application to amend her claim to include complaints of age and sex discrimination were refused. Background Facts[2]The claimant was employed by the respondent as an Occupational Therapist (Band 6) from 9 January 2023 until her dismissal effective on 4 January 2024, on the grounds of performance capability. The claimant started the early conciliation procedure on 22 March 2024 and was issued with a EC Certificate on 3 May 2024. The claimant presented a Claim Form on 2 June 2024 making complaints for unfair dismissal; automatic unfair dismissal, whistleblowing; disability discrimination and victimisation.[3]At a Preliminary Hearing for case management held on 21 May 2025, the claimant decided not to proceed with the complaints for whistleblowing, automatic unfair dismissal and victimisation. The Tribunal directed that two preliminary issues should be determined first, namely(i) whether the claimant had continuity of service to proceed with the unfair dismissal claim, and(ii) the application for amendment. The case was therefore listed to this hearing.
The Hearing
[4]The Tribunal was presented with a hearing bundle of 333 pages, a skeleton argument from the respondent, and an application for an Unless Order made by the respondent. Claimant’s amendment application[5]In relation to the claimant’s amendment application, the background to the application is that, the claimant made three amendment applications on 1 November 2024, 12 November 2024 and 15 May 2025 respectively. The first application sought to add complaints of discrimination arising from disability and victimisation. The respondent did not object to these amendments. The claimant withdrew the application dated 12 November 2024. In the third application, the claimant sought to add complaints of sex and age discrimination, and detriment for whistleblowing. These complaints were not properly particularised which made it difficult to understand the precise nature of the complaints. The claimant was not able to articulate the proposed amendments. Accordingly, the claimant was recommended to take legal advice, and directed that if she still intended to pursue the amendment application then to clearly particularise the amendment sought with a supporting application.[6]The claimant presented an application for amendment dated 26 August 2025. The application document was detailed and prolix spanning 16 pages. This document identified 7 amendments. The Tribunal spent considerable time with the claimant seeking clarification of these amendments.[7]Following this discussion, the claimant unequivocally confirmed as follows;(i) this application was limited to complaints of direct sex discrimination and age discrimination only.(ii) the amendments for disability discrimination, harassment and victimisation were not pursued; and(iii) the complaints for unfair dismissal and detriment for whistleblowing were withdrawn.[8]The claimant unequivocally confirmed her decision not to proceed with the following amendments;(i) Item 1 – Not being provided with Typro software before she commenced employment;(ii) Item 6 - Treated differently from colleague Irene Howie.[9]The Tribunal therefore had to determine the following amendments;(i) Item 1 - the delay in being given the Typro software on 07.09.2023.(ii) Item 2 - In May 2023, after returning from breast surgery the claimant was put on a Performance Improvement Plan (PIP).(iii) Item 3- On 21 March 2023 the claimant was told not to work outside her contracted hours by her Manager, Gillian Findlay. This was related to her disability (menopause).(iv) Item 4- The claimant was required to work as fast as everyone else without the correct software and comments made by Manager.(v) Item 5- Not being allowed to “jump on triage”(vi) Item 7- Dismissal (complaint of sex discrimination) Claimant’s submissions[10]The claimant in her application document referred to the case of Selkent Bus Co Ltd v Moore (1996) IRLR 661 and directed the Tribunal to have regard to this. The claimant submitted that if the amendments were refused this would cause her great hardship and injustice and prevent her from having her full case heard which would lead to significant loss of compensation and feeling that justice was not done. There would be no prejudice to the respondent as they are aware of her mental health and long term conditions which continue to affect her. Respondent submissions[11]Mr Heard for the Respondent opposed the application and commented on each amendment, as summarised below.(i) Item 1 - This is a new claim not pleaded in the ET1. There is a dispute on fact as to the adequacy of the software. Also the claimant has not identified the person who made the decision not to provide the software, which for a direct discrimination claim is necessary.(ii) Item 2 - This is new claim not pleaded in ET1. This claim has no merit. The claimant explained in discussion it was her Line Manager (a female) who placed her on a PIP after returning from surgery. There was nothing to suggest from the claimant she could establish a prima facie case that she was put on a PIP because she was a woman. In terms of the age discrimination claim the claimant would have to show that she was put on a PIP because of her age. The claimant alluded to no information to show a prima facie case.(iii) Item 3 –This is a new claim. The claimant claimed she was told by her Manager not to work outside contracted which may have been an attempt to manage her health conditions (menopause). If that was done and in good faith, the claimant would have difficulty to argue the act was less favourable treatment and to establish it was done on the grounds of sex and age. The claimant would also need provide information about comparators.(iv) Item 4 - This is a new claim. The alleged comments made by the Manager are disputed by the respondent. The claimant confirmed these comments were made in the context of being in her menopause. The claimant has shown no basis for this complaint and has been linked to her menopause.(v) Item 5 –This is a new claim. The claimant claims she was told by her Manager that she could not go on triage because she had not passed her competencies. The claimant has identified two male employees Craig & Shaun but has not presented they had not passed their competencies. The claimant has merely linked her sex and age.(vi) Item 6- This is a new claim. The act of dismissal is now claimed to be on the grounds of her sex having already pleaded as an act of direct disability discrimination.[12]Overall, Mr Heard made the following submissions;(i) The Tribunal has already spent a disproportionate amount of time at this hearing (including at the previous hearing) in trying to understand and identify the claimant’s amendments, which the claimant should have done.(ii) The claimant already has multiple complaints to pursue. If the amendments are allowed the respondent will be caused hardship and prejudice in that they would have to incur considerable additional preparation time, which will increase their costs which are already considerable. The hearing time estimate for the final hearing will have to be extended to factor in evidence of potential new witnesses.(iii) In terms of the timing and manner of this application, the application is substantively late. The claimant was ordered to submit the amendment application by 15 May 2025 but this was not submitted until 27 August 2025, and no explanation has been provided.(iv) In the main, the proposed amendments are new complaints, lack sufficient information and on a preliminary assessment appear to lack merit. The claimant has adopted a scattergun approach by adding new allegations relying upon two new protected characteristics, without providing an explanation.
The applicable law
[13]An Employment Tribunal has jurisdiction to determine the case put before it, not some other case (per Gibson LJ at paragraph 42 of Chapman v Simon [1994] IRLR 124). If a case is not before the Tribunal, it needs to be amended to be added.[14]In Cocking v Sandhurst (Stationers) Ltd and anor [1974] ICR 650 NIRC Sir John Donaldson laid down a general procedure for Tribunals to follow when deciding whether to allow amendments to claim forms involving changing the basis of the claim, or adding or substituting respondents. The key principle was that in exercising their discretion, Tribunals must have regard to all the circumstances, in particular any injustice or hardship which would result from the amendment or a refusal to make it. This test was approved in subsequent cases and restated by the EAT in Selkent Bus Company Ltd v Moore [1996] ICR 836 EAT, which approach was also endorsed by the Court of Appeal in Ali v Office of National Statistics [2005] IRLR 201 CA.[15]The leading case of Selkent Bus Company Ltd v Moore [1996] IRLR 836 confirms the Tribunals power to amend is a matter of judicial discretion. Mummery J said; “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 of allowing the amendment against the injustice and hardship of refusing it.”[16]The guidance in Selkent provides for consideration of the nature of the amendment, the timing and manner of it and the applicability of time limits. The key question a Tribunal is asked to determine is where does the balance of injustice/prejudice lie if an application to amend is granted or refused.[17]This is reflected in the Presidential Guidance on Case Management and was recently confirmed by the EAT in Vaughan v Modality Partnership 2021 IRLR 97. HHJ Tayler in Vaughan v Modality Partnership UKEAT/0147/20/BA(V): [21] said “… Representatives have a duty to advance arguments about prejudice on the basis of instructions rather than supposition. They should not allege prejudice that does not really exist. It will often be appropriate to consent to an amendment that causes no real prejudice … [26] a balancing exercise always requires express consideration of both sides of the ledger, both quantitatively and qualitatively. It is not merely a question of the number of factors, but of their relative and cumulative significance in the overall balance of justice. [27] Where the prejudice of allowing an amendment is additional expense, consideration should generally be given as to whether the prejudice can be ameliorated by an award of costs, provided that the other party will be able to meet it. [28] An amendment that would have been avoided had more care been taken when the claim or response was pleaded is an annoyance, unnecessarily taking up limited tribunal time and resulting in additional costs; but while maintenance of discipline in tribunal proceedings and avoiding unnecessary expense are relevant considerations, the key factor remains the balance of justice.”[18]In Ladbrokes racing Ltd v Traynor EAT/0067/06 the EAT gave guidance on how to take into account the timing and manner of the application in the balancing exercise. The Tribunal will it need to consider;(i) why the application is made at the stage at which it is made, and why it was not made earlier;(ii) whether if the amendment is allowed, delay will ensue and whether there are likely to be additional costs because of the delay or because of the extent to which the hearing will be lengthened if the new issue is allowed to be raised, particularly if these are unlikely to be recovered by the party that incurs them; and(iii) whether delay may have put the other party in a position where evidence relevant to the new issue is no longer available or is rendered of lesser quality than it would have been earlier.[19]Where an application raises arguably new causes of action a Tribunal should consider the extent to which the new complaints are likely to involve substantially different areas of enquiry and the greater the differences between the factual and legal issues raised the less likely it will be permitted (Abercrombie Yeah v Aga Rangemaster Ltd [2013] EWCA Civ 1148, CA)[20]A Tribunal may also take account of the merits of the claim, having made such an assessment by reference to identifiable factors that are apparent at the preliminary hearing, taking account of the fact that it does not have all the evidence before it and is not conducting the trial (Kumari v Greater Manchester Mental Health NHS Foundation Trust [2022] EAT 132). In Cooper v Chief constable of West Yorkshire Police and anor EAT 0035/06, one of the reasons the EAT gave for upholding the Tribunal decision to refuse the application to amend was that it would have required further factual matters to be investigated “if this new and implausible case was to get off the ground”.[21]In determining this application, the Tribunal had regard to the well-established legal principles as set out above. The Tribunal took into account all the circumstances and balanced the injustice and hardship of allowing the amendment against the injustice and hardship of refusing it. In this regard, the Tribunal considered the nature of the amendment, the issue of time limits, the timing of the application and also the merits of the claim. The nature of the amendments[22]The Tribunal noted the complaints of sex and age discrimination are new complaints and not merely a re-labeling exercise. The substance of the claimant’s pleaded allegations in the Claim Form essentially relate to her various disabilities and complaints of disability discrimination. The proposed complaints of sex and age discrimination are new causes of action based on some new facts not previously pleaded. The manner of this application and merits of complaints[23]It is incumbent on the claimant to properly particularise the proposed amendments. The claimant has not do this. The Tribunal has had to seek further clarification to ascertain the complaints pursued. Mr Heard has pointed out for some of the complaints the claimant has failed to identify the alleged perpetrators; failed to provide information about comparators; has not provided sufficient information to potentially show a prima facie case; and has made assertions that because she is a woman and of a particular age she had been subjected to discrimination. On a preliminary assessment the amendments appeared to lack merit and there is likely to be evidential and legal difficulties in proving the proposed allegations. In terms of the timing of this application[24]The proposed new complaints are significantly out of time as is the application to amend. Firstly, the alleged incidents relied upon date back to a period between January 2023 to January 2024. This amendment application has been presented on 27 August 2025 which is some 420 days after presentation of the Claim Form. Whilst the Tribunal has a broad discretion to hear a discrimination complaint out of time under Section 123(1)(b) of the Equality Act 2010, the claimant has not provided a persuasive explanation for the delay. The Tribunal noted that given the claimant was able to prepare a very detailed particulars of claim, there is no reason why the claimant could not have pleaded the complaints which form this amendment application. The Tribunal has noted, however, that any time delay is not a determinative factor to refuse the amendment.[25]The claimant explained that at the time of the alleged conduct relied upon (i.e which is the subject of this proposed amendments) she was not aware that she had been discriminated against. Only after doing some legal research the claimant realised she could bring claims for discrimination on the grounds of sex and age. The Tribunal concluded that the claimant was now seeking to add new complaints under new protected characteristics of sex and age based on research she has undertaken. The Tribunal considered this undermines the credibility of this application. Balance of hardship and prejudice[26]In considering the balance of prejudice and hardship, the Tribunal considered the following matters. The proposed amendments are new heads of claim. (i.e sex and age discrimination). The allegations would require further investigation which would expand the scope of the respondent’s enquiries and investigations. Given the delay, the witnesses recollection of the alleged incidents or events are likely to be obscure which would impact on the cogency of their evidence. This is also likely to prejudice the fairness of a final hearing. As for the claimant, she would not be caused prejudice because she is still be able to continue with her pleaded case, which are substantial complaints made under the Equality Act 2010. The claimant, therefore would not be deprived of a remedy in respect of the claims which are already being pursued.[27]Overall, the Tribunal had regard to the guidance given by Underhill LJ in Abercrombie v Aga Rangemaster Ltd (2014)ICR 20. The Court of Appeal stressed that Tribunals should when considering applications to amend that arguably raise new causes of action, should focus “not on questions of formal classification but on the extent to which the new pleading is likely to involve substantially different areas of inquiry than the old; the greater the difference between the factual and legal issues raised by the new claim and by the old the less likely it is that it will be permitted.”[28]The Tribunal took into consideration all of the relevant circumstances and had regard to the overriding objective to deal with matters proportionately, and the public interest of finality of litigation. The Tribunal was satisfied that there would be greater injustice and hardship to the respondent in granting this application. The proposed amendments are new causes of action which the respondent would be prejudiced in dealing with. The claimant’s pleaded complaints are essentially related to her multiple disabilities, which she is able to vigorously pursue without any prejudice.[29]For these reasons the claimant’s application for amendment was refused. Approved By