Mrs S Hewitt v The DPO Centre Ltd and Others: 1305842/2023

EMPLOYMENT TRIBUNALS

Case No 1305842/2023

Between

Mrs S HewittClaimant

The DPO Centre Ltd and OthersRespondent

Before

Employment Judge Bansal

In person for claimant

Date 4 March 2025

JUDGMENT

[1]The claimant’s application to amend her claim to include the complaint that the act of her dismissal was an act of direct disability discrimination by R1, is allowed.

[2]The claimant’s application to amend her claim to include the complaint she was subjected to discrimination in the course of the application of the termination procedure or the process applied is refused.

REASONS

[1]This case came before me to finalise the claimant’s draft list of issues table that was dealt with in part at the hearing on 14 October 2024 before Employment Judge Hena. At that hearing it became apparent there were some contested issues which required further discussion and finalisation. These are set out in Paragraphs 14, 15 & 16 of the Case Summary in the record of the Preliminary Hearing of 14 October 2024. Therefore this judgment should be read in conjunction with that record, and also of the record of Preliminary Hearings held previously on 11 April 2024, and 26 July 2024.

[2]The claimant attended in person and was accompanied by a friend, Louise Gray. Miss L Price, represented the named respondents. Respondents 2 & 4 were also in attendance.

[3]For this hearing, the parties relied on the hearing bundle of 600 pages used at the last hearing on 14 October 2024.

[4]In discussion about the contested issues, in particular about Paragraph 16, the claimant maintained that her dismissal and the termination procedure/process applied to her were acts of direct disability discrimination The respondents position is that the claimant has not previously raised or pleaded these complaints. These are new complaints and therefore require an application for amendment. In discussion the claimant, acknowledged she has not specifically pleaded the dismissal as an act of direct discrimination. Her explanation was that these are not new complaints and that her dismissal is a central part of her claim which is clear from her pleaded claim.

[5]I was not able to progress this issue due to the limited time available and more so because the claimant was unable to deal with this issue. She needed to seek further legal advice. I considered it necessary for the claimant to seek advice and be absolutely clear about her position, and also I was keen to ensure there is finality to the draft list of issues. With the parties agreement, I gave some directions and they were content that I determine this issue based on the submissions received. I therefore directed(i) that by 19 February 2025, the claimant serve a formal amendment application setting out clearly and precisely the amendments sought, and an explanation in support of the application;

(ii) that by 27 February 2025 the respondents serve a response to the application. I indicated I would endeavour to give a written judgment by 4 March 2025 given that a public preliminary hearing is listed for 7 March 2025 to deal with jurisdictional time point issues. The Claimant’s application

[6]On 19 February 2025, the claimant served an application for amendment. I have copied the relevant parts of the application below. It is my case that from the outset of my claim and during the continued course of these proceedings, I have set out facts in support of a conclusion that, during my relationship with R, I was subjected to direct disability discrimination, discrimination arising from disability, failure to make reasonable adjustments, victimisation and harassment on grounds of disability. These include the fact of my dismissal by the Respondents on 14 April and the management behaviours, procedures, practices and decisions surrounding and concerning my dismissal. It is my understanding that the requirement / orders that I make this application to amend is because during the course of the discussions on 10 February (ref paras 14, 15 and 16 of Judge Hena’s Order from the 14 October 2024 hearing), the Respondent raised objections and assertions that I have attempted to add new claims which I had not pleaded before. I noted that the Judge queried how many new claims Counsel for the R said I was now attempting to add and the response was that they counted 28 ‘new claims’. I consider that the requirement I submit written application to amend is considered with this background context in mind. These include the fact of my dismissal by the Respondents on 14 April and the management behaviours, procedures, practices and decisions surrounding and concerning my dismissal Having regard to the above, I do not consider that the 2 issues summarised above amount to me suddenly introducing new claims at all. I do consider that the statements are helpful in terms of providing clarification to the existing claims made out in that they succinctly summarise the essence of the central issues to be determined in my case, on the basis of my already set out detailed factual allegations that were previously submitted. The Reasons necessitating the Amendments to the extent that I must apply to amend, which is not clear to me for the reasons outlined above, are: - they are closely linked to the original claim and do not introduce new facts or issues; - they support and provide clarification to the complaints and issues already pleaded but provide welcome clarification to the central issues of my case and; - an amendment adding the 2 issues herein shall assist the Tribunal in identifying all relevant matters in my case, and deal with it effectively and proportionately. Prejudice to Claimant and Respondent The Judge made clear that a failure by me to submit the written application would result in my case being dismissed. The significant prejudice in my case being dismissed is self evident. The Respondent will not suffer prejudice if the applications are permitted because of the reasons already set out above. Furthermore, the Respondent stated in its ET3 response at para 3.2 the following: "For the avoidance of doubt, any act complained of that occurred before 8 May 2023 is out of time. The Claimant was dismissed on 14 April 2023, which is her last alleged act of discrimination; therefore, all of the Claimant’s claims are, prima facie, out of time. The Respondents submit that it would not be just and equitable to permit the Claimant to pursue the Claim when it was presented out of time." Conclusion The Respondent has understood from the outset that my dismissal on 14 April was a claimed alleged act of disability discrimination and its ET3 responses have addressed this and other matters relating to the procedure itself. Submissions on behalf of the respondents

[7]On 24 February 2025, Counsel for the respondents served written submissions, opposing the application. For the sake of brevity, I summarise, the submissions below.(i) This is the claimant’s second application to amend her claim having had ample opportunity from the start of her claim to do so; and the CMO dated 17 April 2024, specifically recorded, “This document should stand as the claimants definitive particulars of claim and be referred to in the draft list of issues. The claimant has not made any other application to amend.”

(ii) The claimant’ seeks to add as acts of discrimination namely (a) the dismissal, and (b) the referral to Occupational Health. The exact nature of these complaints is not clear.

(iii) This application aims to introduce new claims based on new facts. This is not a re-labelling exercise. The original claim and amended claim, do not assert that the dismissal was discriminatory. There is nothing pleaded indicating the act of dismissal itself constituted discrimination.

(iv) Although the Claim Form mentions the OH referral it does not indicate that this was unfavourable treatment stemming from the claimants disability.

(v) The claimant has delayed making this application and provided no explanation why this application was not made earlier given the history of this case so far. This claim was issued in September 2023; has had four case management preliminary hearings which have primarily focused on understanding and clarifying the complaints pursued, and finalising the list of issues. The claimant has during the course of this case, in addition to the Particulars of Claim, provided a 17 page detailed further particulars of claim, which has not included the two claims which she aims to now add.

(vi) The proposed new claims are significantly out of time. As time runs from 19 February 2025, being the date the application is made, these two new claims are some 22/23 months out of time.

(vii) To allow this application significantly prejudices the respondents in that this will extend the length of and delay the final hearing; will be required to investigate and interview additional witnesses this adding to the expense of this case;

(viii) There will be no significant prejudice to the claimant as she is able to pursue her claims that she intended to pursue.

(ix) The interests of justice demands fairness and finality to all parties. The legal framework

[8]The Tribunal has a general power to make case management orders which includes the power to allow amendments to a claim or response in terms of Rule 30 of the Employment Tribunal Procedure Rules 2024.

[9]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.”

[10]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.

[11]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

[12]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.

[13]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)

Conclusion

[14]In coming to my decision I have taken into account the parties submissions, the cases and legal principles referred to, and in particular as I am required to do, the guidance in Selkent. I therefore address each of the specific factors highlighted in Selkent, and any other relevant facts and then take all of those into account in balancing the injustice and hardship to all parties. I deal with these below. a. The nature of the amendment.

[15]I first deal with the proposed amendment that the claimant’s dismissal on 14 April 2023 amounted to discrimination on the grounds of her disability. I understand this complaint is directed at R1 only. I acknowledge the claimant is acting as litigant in person. I found her to be intelligent and articulate. She has attained a first class honours degree in Law and to date, has ably articulated her case.

[16]I reviewed the Claim Form, the amended Particulars of Claim, and the Further & Better Particulars provided by the claimant. I found none of these pleadings expressly set out a complaint that the dismissal amounted to an act of discrimination. This is surprising in view of the claimant’s position that the issue of dismissal has been a central feature of her claim. I also have taken into account the claimant’s candid reply that “I have not stated in my claim that the dismissal was an act of discrimination,” to a question I put to her in our discussion on this point at this hearing. I do not accept the claimant’s submission that the respondent should have understood from the outset that her dismissal was an of disability discrimination. I therefore agree with Miss Price’s submission that this a new cause of action.

[17]I then considered if this new cause of action raises new facts. I reviewed the Grounds of Resistance dated 19 October 2023 and noted at Para 50.1 the reason for dismissal is pleaded in response to the victimisation complaint. I therefore do not agree with Miss Price’s submission that this amendment raises new facts. The issue about the claimant’s dismissal being an act of discrimination arises from the same factual matrix pleaded in respect of the existing complaints.

[18]This new cause of action does not plead any new facts and is simply an exercise by the claimant (although she is of the view she does not need too) in applying an additional label to her claim that her dismissal was unlawful. In my view, the only additional issue for the Tribunal to enquire and determine, is if the reason was discriminatory. I am therefore not persuaded this amendment will require a new line of enquiry and investigation by R1. I have noted Miss L Bishop (R4) was heavily involved in the claimant’s dismissal and therefore should have good knowledge of the background facts and circumstances to be able to respond fully.

[19]In respect of the second amendment, namely that the claimant was subject to discrimination in the course of its application of the termination procedure or the process applied, the claimant simply refers to “management behaviours, procedures, practices and decisions surrounding and concerning my dismissal”. The claimant’s position is similar to the first amendment above, that this is not an amendment as these are closely linked to the original claim and do not introduce new facts or issues.

[20]According to Miss Price the proposed amendment relates to the referral to Occupational Health as an act of discrimination.

[21]The claimant was ordered to clearly and precisely set out the amendment sought. The proposed amendment has not been particularised. It is incumbent on the claimant to fully set out the nature of the amendment. She has failed to do so despite been given a further opportunity to seek advice and present her application. There must be finality to this issue without further delay particularly given the history of this case and the pending preliminary hearing. I therefore refuse this part of the claimant’s application for amendment as this amendment has not be sufficiently particularised.

[22]For the avoidance of doubt, this judgment now addresses the proposed amendment that the claimant’s dismissal was an act of discrimination on the grounds of disability. This amendment is pursued against R1 only. b. The applicability of time limits and manner of application.

[23]I agree with Miss Price that this application to amend has been made considerably out of time, whether you take the date of the application to be made at the last preliminary hearing on 14 October 2024 when it appears the issue was first raised or 19 February 2025 the date of this formal application. The claimant has made the point that she did not know that she needed to make this application as she understood this complaint was included in the particulars of her claim. Hence this application has only been made following the discussions held to finalise the list of issues and Miss Price’s contention the claimant sought to include this new complaint at the last preliminary hearing held on 14 October 2024.

[24]I have noted R1’s position that if the act of dismissal is the last alleged act of discrimination, then prima facie this complaint is out of time, as all acts complained of that occurred before 8 May 2023 are out of time. I make two observations about this. Firstly, the Tribunal does have a broad discretion to hear a discrimination complaint out of time under Section 123(1)(b) of the Equality Act 2010. Secondly, if the amendment is allowed R1 is not deprived of the opportunity to raise the time bar defence and seek a strike out of this complaint at the listed preliminary hearing for 7 March 2025. c. The balance of injustice and hardship.

[25]Miss Price has submitted that if the amendment is allowed this will significantly extend the length of a final hearing, and the respondents will be put to further expense of having to respond to this complaint; conduct further investigation and adduce additional evidence. Conversely, the claimant will not be caused prejudice because she will be able to continue with her pleaded complaints.

[26]The claimant’s position is that she will be caused prejudice as she will be deprived of pursuing the central complaint of her claim, which is all about her dismissal.

[27]I have taken into consideration all of the relevant circumstances and I am satisfied that there would be injustice and hardship to the claimant in refusing the application as she would lose the opportunity to be pursue a central cause of action of her case. This may have a consequent effect on her ability to pursue the other claims of discrimination on the basis that she relies on the dismissal as being the end of an act continuing over a period.

[28]I have considered the guidance given by Underhill LJ in the case of Abercrombie v Aga Rangemaster Ltd (2014)ICR 20 and am of the view this complaint arises from the same factual matrix and there is no material prejudice to the respondent(s) if this amendment is granted. The respondent(s) should be able to fully address this complaint in the course of their preparation of this case as it is linked to the reason for dismissal and victimisation complaint. There is a clear overlap.

[29]Notwithstanding the time limits issue and the delay in making this application, the fact is, this claim which was issued in September 2023 is still, surprisingly, in the early stages with a jurisdictional time issue to be determined at a hearing on 7 March 2025. No case management orders have been issued and neither a final hearing date has been fixed. I am not persuaded by Miss Price that if the amendment is allowed this will increase the length of the final hearing which in turn may affect the listing date. The fact is final hearing has not been fixed and no consideration has been given to this given the stage this case is currently at. In fact, the length of the final hearing may be reduced should the Tribunal not exercise its discretion to extend time to hear the complaints which are, prima facie, out of time.

[30]Although there may be some hardship to the respondent(s) in allowing the amendment, in so far as R1 will need to address the dismissal issue, however, this does not outweigh the hardship and injustice to the claimant in refusing it. In these circumstances, taking account of all the matters set out above, I grant the application to amend limited to the dismissal to be an act of discrimination, which is a complaint against R1 only.

[31]Accordingly, R1 is given leave to revise their Grounds of Resistance, if this complaint is not struck out at the preliminary hearing. I therefore direct that R1 files an amended response limited to the granted amendment within 21 days after the Tribunal’s judgment of the preliminary hearing on 7 March 2025. Approved By