Ms K Mistry v Coventry University: 1307553/2019

EMPLOYMENT TRIBUNALS

Case No 1307553/2019

Venue Birmingham

Hearing 25 – 29 April 2022 & 3 – 5 May 2022

Between

Ms K MistryClaimant

Coventry UniversityRespondent

Before

Employment Judge Dimbylow

Members

Mr E Stanley

Mr MZ Khan

In person for claimant

Mr AF Griffiths (instructed by Counsel) for respondent

Mr A Griffiths (instructed by Counsel) for respondent

Date 5 May 2022

JUDGMENT

Upon the claimant’s application to amend the claim: the application is not well-founded, is refused and dismissed. Employment Judge Dimbylow 14 September 2021 Case Number 1307553/2019 Note: Reasons for the judgement having been given orally at the hearing, written reasons will not be provided unless a request was made by either party at the hearing (and no such request was made) or a written request is presented by either party within 14 days of the sending of this written record of the decision. JUDGMENT OF THE EMPLOYMENT TRIBUNAL HELD AT Birmingham ON 25 – 29 April 2022 & 3 – 5 May 2022 EMPLOYMENT JUDGE GASKELL MEMBERS: Mr E Stanley Mr MZ Khan Representation For the Claimant: In Person For the Respondent: Mr A Griffiths (Counsel) JUDGMENT The unanimous Judgement of the tribunal is that:

[1]The respondent did not, at any time material to this claim, act towards the claimant in contravention of Sections 39 or 40 of the Equality Act 2010. The claimant’s complaints of direct race and age discrimination; harassment; and victimisation, pursuant to Section 120 of that Act, are dismissed.

[2]The claimant was fairly dismissed by the respondent. Her claim for unfair dismissal is not well-founded and is dismissed.

[3]The claimant’s claims for unpaid notice pay (breach of contract) and unpaid holiday pay or not well-founded and are dismissed.

REASONS

[1]The claimant in this case is Ms Kanta Mistry who was employed by the respondent, Coventry University, as a Management Support Administrator, from 15 October 2001 until 1 August 2019 when she was dismissed. The reason given by the respondent at the time of the claimant’s dismissal was capability.

[2]By a claim form presented to the tribunal on 2 October 2019, the claimant brings claims for unfair dismissal; for unlawful discrimination on the grounds of race and/or age; for breach of contract; and for unpaid notice pay and holiday pay.

[3]All of the claims are denied: the respondent denies any form of discrimination; it maintains that the claimant was properly paid in lieu of notice and that all outstanding holiday pay was paid on termination of the claimant’s employment. It admits that the claimant had sufficient time service to bring a claim for unfair dismissal and that the claimant was dismissed. The respondent maintains that the claimant was dismissed by reason of her capability and that the dismissal was fair.

[4]From the initial claim form all it was extremely difficult to discern exactly how the claimant put her case: precisely what acts/omissions on the respondent’s part were said to be acts of discrimination. This was all discussed in detail at a preliminary hearing conducted by Employment Judge Johnson on 30 March 2020. Following that hearing the case was listed for final hearing with a time allocation of six days commencing on Monday 19 April 2021. Judge Johnson set out a List of Issues which are stated at Paragraph 7 of his Case Management Order. The issues identified by Judge Johnson can be summarised as follows: -(a) Time issues relating to the discrimination claims

(b) Issues as to the reason for and the fairness of the dismissal

(d) Victimisation

(e) Unpaid holiday pay

(f) Unpaid notice pay (breach of contract) The claimant was ordered to provide full particulars of the acts/omissions said by the amount to acts of direct discrimination and/or victimisation.

[5]The case came on for final hearing before a full panel chaired by Employment Judge Cookson on 19 April 2021. By then however it was clear that the case which the claimant sought to present was rather more extensive than that which could be discerned from her claim form; from the list of issues; or from her further particulars. The final hearing was abandoned on the second day: Judge Cookson made Case Management Orders which we have not seen but which from a later Case Management Order, we understand to have included full guidance to the claimant as to how she should proceed in an application to amend the claim.

[6]The amendment application was heard by Employment Judge Dimbylow on 9 August 2021 with judgement delivered in open tribunal on 14 September 2021. The amendment application was refused.

[7]Notwithstanding Judge Dimbylow’s judgement, the case which the claimant has presented before us was considerably more extensive than that confined to the list of issues or the claimant’s pleaded case. In the face of reasonable objections from Mr Griffiths, we have allowed the claimant considerable latitude in the presentation of her case; and ultimately, the issues which we have decided are: -(a) Time issues relating to the discrimination claims

(b) Issues as to the reason for and the fairness of the dismissal

(d) Harassment on the grounds of race and/or age (d) Victimisation

[8]In support of her claims for direct discrimination; harassment; and victimisation, the claimant has advanced particulars of incidents and identities of alleged discriminators not previously pleaded and not previously referred to in Case Management Orders.

[9]On the other hand, the claims for unpaid holiday pay and unpaid notice pay have not been pursued at all by the claimant during the course of this hearing.

The Evidence

[10]By agreement, the respondent presented its case first. The respondent relied on the evidence of five witnesses: - Ms Laura Moten: Faculty Operations Manager Mrs Gemma Bailey: People Advisor Professor Heather McLaughlin: Academic Dean, Faculty of Business & Law Mr Nicholas Sale: Independent Governor Mr Michael Fitzpatrick: Pro-Vice-Chancellor, Engineering, Environment & Computing

[11]The claimant gave evidence on her own account: she did not call any additional witnesses.

[12]In addition, we were provided with an agreed trial bundle running to 654 pages to which were added to additional documents during the course of the hearing we have considered the documents from within the bundle to which we were referred by the parties during the course of the hearing.

[13]Without exception, we found the evidence given by the respondent’s witnesses to be clear; consistent; credible; and compelling. The evidence remained consistent internally throughout cross-examination; it was consistent with contemporaneous documents; and the evidence given by the witnesses was consistent with that given by other witnesses.

[14]By contrast, the evidence given by the claimant was confused; inconsistent; and largely not credible. We set out below examples of these findings: -(a) Confused: At one point in the narrative, the claimant complained about what she perceived to be an unfair allocation of duties as between herself and a colleague. The claimant could give no coherent explanation for her being reversed - but did not appear to appreciate that this would inevitably mean that the alleged unfairness would simply be reversed. More generally the claimant simply failed consistently to answer very simple questions with direct simple answers preferring instead to avoid an answer or launch into her own narrative.

(b) Inconsistent: The claimant could not account for her failure to complain about alleged discrimination at any time during the course of employment or even when pursuing her appeal against dismissal. When she cross-examined the respondent’s witnesses, she did not suggest that any such complaint had ever been raised; there is no mention of such in her pleaded case; or in her witness statement; and no reference to such a complaint in any contemporaneous document. Initially during evidence, she explained that she had not raised a complaint because she was fearful of recriminations. But later she suggested that complaints had been raised verbally but not recorded. During the course of her cross examination the claimant consistently stated that she had no recollection of events which were inconvenient to her case - whilst at the same time claiming and unfailing recollection of contemporaneous events which she felt supported her case.

(c) Not Credible: The claimant was adamant that she had been unaware of complaints by colleagues that she appeared to be covertly photographing and/or filming and/or recording them during the working day until she saw reference to such complaints in the trial bundle. She was then taken to a document which had not only been read by her but also annotated with her comments which clearly detailed these complaints. Confronted with this, the claimant firstly challenged the authenticity of the annotated document (having originally accepted it) and then changed her account to suggest that she was aware of the complaints but had not seen the originating emails.

[15]In one respect we find the claimant to have been dishonest in her evidence. This finding relates to allegations in the claimant’s witness statement to the effect that Ms Moten racially harassed her by describing her as a “chaiwallah” and making abusive comments about “temples” and “wailing prayers”. These allegations do not appear anywhere in the claimant’s pleaded case nor in any contemporaneous document or any of her many complaints. Neither did she raise these allegations at the preliminary hearings conducted by Employment Judge Johnson, Employment Judge Cookson, or Employment Judge Dimbylow. We find these allegations to be recent concoctions made to bolster the claimant’s race discrimination claim and that the allegations are untrue.

[16]To the extent that there are factual differences between the evidence given on behalf of the respondent and that given by the claimant, we prefer the evidence of the respondents witnesses and have made our findings of fact accordingly.

The Facts

[17]Although the claimant’s case is that her difficulties at work started when she raised a complaint on 1 April 2014, this is clearly not the case as emails in the bundle suggest conflict and complaints regarding the duties allocated to the claimant from as early as 2012. Further, we accept the unchallenged evidence given by Ms Moten to the effect that she became the claimant’s line manager in 2012 following a breakdown in the claimant’s relationship with her previous line manager.

[18]On 1 April 2014, the claimant wrote to Ms Moten expressing concerns about certain aspects of her role and the allocation of duties between her and colleagues. The claimant expressly did not raise a formal grievance and there was no suggestion in her letter of any form discrimination.

[19]The respondent reacted promptly and positively. Individual meetings took place between Mrs Eileen McAuliffe and the claimant and Mrs McAuliffe and Ms Moten. There was then a meeting with all parties present, held on 7 April 2014 (the claimant was accompanied by a colleague). So far as the respondent is concerned the issues raised by the claimant were resolved and there is a meeting note which confirms this.

[20]At the meeting on 7 April 2014 however Mrs McAuliffe told the claimant of concerns which have been raised by colleagues who found her behaviour to be volatile or threatening the claimant was told that her approach to dealing with issues of discontent was not acceptable the claimant was given a clear pathway to address such concerns in the future.

[21]In May 2014, Ms Moten queried a lengthy absence by the claimant from her workstation we have read the relevant emails and the query appears to be entirely appropriate enquiry from a manager to a member of her team however the claimant’s reaction was both rude and inappropriate.

[22]In June 2014, a query arose as to whether the claimant was entitled to paid leave for a number of medical and dental appointments. Having, during the course of Ms Moten’s evidence, examined the relevant policy, it appears to us that the policy was correctly applied. The version of the policy produced to us is dated February 2017: the claimant insists that radical changes have been made to the earlier version. However, despite a promise to do so, the claimant failed to provide a copy of the earlier version so as to justify her complaint.

[23]Throughout the rest of 2014 and 2015, there were numerous incidents of conflict and disagreement between the claimant; Ms Moten; and other colleagues. Ms Moten was the recipient of complaints from the claimant’s colleagues as to her attitude towards them and the claimant consistently complained about unfair allocation of duties and lack of appropriate training. Having considered the evidence given by Ms Moten, and that given by the claimant, we are firstly satisfied that the claimant was provided with all of the training she requested; the same training as other colleagues; and that she was offered further training if she needed it but she did not take up training opportunities which were offered to her. We are further satisfied that Ms Moten attempted throughout to resolve issues and difficulties in a proper and professional manner: however, her attempts were often thwarted by the claimant who refused to meet her; or insisted on unnecessary representation at routine meetings. There are emails sent by the claimant during this period which are threatening and wholly inappropriate. The claimant wholly failed to engage in a professional or positive manner and was an unwilling recipient of any degree of criticism.

[24]The claimant’s case is that there is an element of inconsistency in the respondent’s case with regard to her Development and Performance Review (DPR) for November 2015. On the one hand, the claimant is rated as “strong” but on the other hand Ms Moten was still expressing concerns as to some elements of the claimant’s performance. We are satisfied with Ms Moten’s explanation of this apparent inconsistency: namely, that an overall strong performance was being consistently undermined by the claimant’s weaknesses and by her attitude towards colleagues; towards managers; and towards any form of criticism.

[25]At a Performance Action Planning Review Meeting held on 27 November 2015, the claimant’s conduct towards Ms Moten was extreme and unacceptable. The claimant accused Ms Moten of “behaving criminally” stating that Ms Moten had no right to question her she described Ms Moten as pathetic and the respondent’s system as pathetic. The claimant raised her voice and was very aggressive. Towards the end of the meeting, she sat back in her chair and started singing as Ms Moten was trying to speak. Ms Moten’s evidence was that she was left feeling shaken and uncomfortable and reported the incident to Mr Steve Galliford – Deputy Dean.

[26]This incident led to a disciplinary investigation and on, 12 July 2016, the claimant attended a disciplinary hearing before a panel chaired by Ms Beverley Steventon – Associate Dean. The outcome was that the claimant was given a final written warning for unprofessional conduct. This outcome was upheld on appeal. Ms Moten was replaced as the claimant’s line manager by Ms Mykala Croft. Ms Moten was Ms Croft’s line manager and thus remained part of the claimant’s management chain.

[27]Before, during and after the disciplinary process, efforts were being made to assist the claimant to improve her performance and her professionalism by instituting an informal Performance Improvement Plan (PIP). The documents in the bundle clearly show that the claimant was obstructive in this process: unwilling to engage in a positive manner; and believing that no improvement was required. During 2016, other rather trivial matters of dispute arose: including for example, the claimant taking a taxi home from work at 7:30pm one evening and claiming the cost on her expenses without having followed the appropriate procedures.

[28]In early 2018, a new and relatively inexperienced staff member Sadie Cartmill joined the team. Before long there was considerable tension in the working relationship between the claimant and Ms Cartmill. In an effort to defuse these tensions, the claimant’s then line manager Ms Samantha Clark drew up a table allocating duties as between Ms Cartmill and the claimant. The claimant objected to the allocation. Ms Clark asked her to explain her concerns; claimant refused to do so insisting that they should simply reverse the allocation. As stated earlier, the claimant has insufficient self-awareness to appreciate that what she was therefore asking for was the unfairness to be allocated to Ms Cartmill. At the meeting to resolve this, Ms Cartmill was driven to tears. The claimant refuses to acknowledge that any conduct of hers may have contributed to this.

[29]Over the period to June 2018, there was an accumulation of concerns directed to Ms Moten from Ms Cartmill, Ms Clark, Ms Deesha Halley, and another manager Ms Rosie Halliday. Ms Moten asked for a meeting with the claimant to discuss these concerns initially the claimant refused to meet.

[30]In September 2018, Ms Clark was concerned that the claimant was not meeting deadlines. The claimant’s response was that she was experiencing a heavy workload. In an effort to assist, Ms Clark suggested that the claimant should maintain a work-log which could then be discussed and if appropriate some of the claimant’s duties could be reassigned. The claimant objected to maintaining the work-log in these circumstances unless all members of staff were required to do the same. She explained to us that she regarded this as unmerited scrutiny of her work.

[31]In view of these accumulating concerns, on 6 September 2018, Ms Clark implemented a PIP which clearly set out improvements which were required to both the claimant’s performance and her conduct. The plan was subject to its first review at a meeting on 24 September 2018.

[32]In the period between 6 September 2018 and 24 September 2018, three members of staff complained that the claimant appeared to have been covertly photographing or filming them in the workplace. The claimant was asked to meet Ms Clark about this but refused. The record of the review meeting on the 24 September 2018 contains details of this allegation: it was discussed with the claimant at that meeting as were other areas in which performance had fallen below the improvements specified. A further review meeting was fixed for 8 October 2018. It became necessary to rearrange that date because of the unavailability of the claimant’s representative. Before the rearranged meeting could take place, on 11 October 2018, the claimant commenced a what was to become a prolonged period of sickness absence.

[33]The claimant was absent from work until 8 January 2019 - a total of 63.5 working days. She submitted medical certificates from her GP which stated the cause of her absence to be “low mood”. The respondent referred the claimant for an OH assessment; she was examined for this purpose on 13 December 2018. The subsequent report indicated that there appeared to be no formal diagnosis of a medical condition; that the claimant remained absence due to the situation at work; there was no certainty as to when she would be able to return; there appeared to be no medical reason why she could not undertake a full range of duties. A phased return to work was suggested.

[34]In early January, the claimant intimated that she would be returning to work on 8 January 2019. A return to work meeting was arranged with Ms Moten and Mrs Bailey for 3pm that day. The claimant was unwilling to attend without union representation, but happily her union representative was able to make himself available. The following steps were agreed at the meeting: -(a) The claimant would have a phased return to work: building up to full hours and her full range of duties over a period of four weeks.

(b) Pursuant to the OH report, the claimant was encouraged to arrange a workstation assessment.

[35]On 13 January 2019, the claimant wrote to Professor Stephen Hardy – Head of Coventry Law School, expressing concern as to the allocation of duties between herself and Ms Lauren Hammond. The claimant stated that she felt she had been demoted. There was extensive exchange of emails between the claimant and Professor Hardy in an effort to resolve this issue. However, by 6 February 2019, the claimant’s discontent had begun to manifest itself as hostility towards Ms Hammond. Ms Hammond wrote a detailed letter of complaint regarding the claimant’s conduct towards her: and, at a meeting on 25 February 2019, the claimant was again given formal advice as to her conduct towards colleagues. Professor Hardy was himself aware of the incident between the claimant and Ms Hammond on 6 February 2019 he was extremely concerned as to the claimant’s conduct and for Ms Hammond’s welfare. 36 18 February 2019 had been intended as the first review meeting of the PIP following the claimant’s return to work. Unfortunately, the claimant suffered a family bereavement and the meeting was postponed in an effort to restart the process Ms Moten provided the claimant and her union representative with a copy of the PIP from 24 September 2019. Ultimately, the review meeting was planned to take place in late March 2019 however it did not take place because, on 27 March 2019, the claimant commenced a further period of what was to become prolonged sickness absence from which she did not return to work.

[37]From March 2019, regular fit notes were provided from the claimant’s GP stating that the claimant was unfit for work due to “chest pains” and “vertigo”. It was not until 25 June 2019, that there was reference to the claimant being absent due to “stress at work”. Contrary to the claimant’s assertions, there is no documented diagnosis of the claimant suffering from “depression”. There are two brief GP reports in our bundle both of which refer to “anxiety” and “stress”, but not to depression.

[38]On 21 May 2019, Ms Moten made a welfare call to the claimant who advised that she was not fit to return to work. In the light of this, the respondent made a further referral to its OH provider. The claimant was seen for assessment on 13 June 2019 and the subsequent report is dated 20 June 2019. As with the earlier report, it confirmed that there was no medical reason why the claimant could not perform her duties by regular attendance at work; there was no formal medical diagnosis; the issue appeared simply to be that the claimant could not work in circumstances which she believed to be unfair. The principal reason for perceived unfairness was the PIP and the requirement to improve her performance and her conduct towards her colleagues. The report confirmed that medical redeployment was inappropriate as was ill health retirement. The report strongly urged that meetings should take place to resolve the workplace differences but acknowledged that the claimant had indicated a reluctance to attend such meetings. The author of the report suggested that delaying meetings was more harmful in ensuring that they took place. The recommended adjustments were the same as before: namely, a phased return to work.

[39]On 15 June 2019, Professor Hardy wrote to Ms Moten expressing concern at the claimant’s continued absence and as to the detrimental effect this was having on the efficiency of the Law School and the increased workload caused to other staff. When giving evidence, the claimant was extremely dismissive of Professor Hardy’s concerns: she stated that she could not understand why the respondent could not continue to cover her absence indefinitely.

[40]The respondent’s Sickness Absence Policy provides for a two-stage procedure. The use of Stage I is most appropriate in cases of repeated shortterm absence. The policy expressly permits progress direct to Stage II in the case of long-term absence. On 19 June 2019, Ms Louise Hopkins - People Advisor wrote to the claimant inviting her to a Stage II Absence Review Meeting. Professor McLaughlin had been asked to chair the meeting supported by Ms Hopkins. The claimant was advised that the management case would be presented by Ms Moten; that she was entitled to trade union representation at the meeting; and that a possible outcome of the meeting would be a recommendation that her employment should be terminated.

[41]The meeting took place on 18 July 2019: the claimant attended accompanied by her trade union representative. This the claimant had been continuously absent from work since 27 March 2019 (72 working days); and she had been absent for a total of 166.5 working days during the previous 21 months. (It is right to record that the claimant strongly believes that a 14 day absence in November/December 2017 should be discounted as should a period of five days compassionate leave in February 2019 - but we are satisfied that, even if those periods were discounted, the outcome of the Stage II meeting would have been the same.)

[42]We accept the evidence given by Professor McLaughlin: she concluded that the claimant’s absence could no longer be allowed to continue indefinitely and that there was no reasonable prospect of a sustained return to work in the foreseeable future. As had happened in January, even if the claimant were to return, within a short period relations would again break down leading to further absences. Professor McLaughlin considered whether there were realistic redeployment opportunities and found that there were none, and, although there was no suggestion that the claimant was a disabled person, she considered what adjustments might be made to facilitate a sustained return to work again she found there were none beyond those which had been made available in January. The simple fact was that the claimant would not accept the need for a PIP - and the respondent could not accept allowing the claimant to work without such measures in place. (Although, as in January, the PIP could be suspended during a period of phased return.) Professor McLaughlin made clear in her outcome letter that the claimant had not been dismissed because of the performance issues - but because the claimant was unable to perform her duties satisfactorily because of her prolonged and repeated absence from work.

[43]Professor McLaughlin concluded that she would make a recommendation to the Vice-Chancellor that the claimant’s employment should be terminated with full contractual notice. On 22 July 2019, she wrote to the claimant advising her of this outcome. In accordance with the respondent’s procedures, the claimant was given the opportunity to make representations to the Vice-Chancellor before a final decision was made. Pursuant to this opportunity, on 30 July 2019, the claimant wrote to Professor Latham making her representations. In the event the representations were considered by Professor Ian Marshall - Acting ViceChancellor: he considered the claimant’s representations together with Professor McLaughlin’s decision. It was Professor Marshall who made the final decision to terminate the claimant’s employment with contractual notice. On 1 August 2019, Professor Marshall wrote to the claimant informing her of his decision and advising her of her right to appeal.

[44]The appeal hearing took place on 22 October 2019: the panel was chaired by Mr Sale and comprised Mr Fitzpatrick and Ms Katie Jennings - People Partner. Professor McLaughlin presented the management case the claimant attended accompanied by her trade union representative. We accept the evidence given by Mr Sale and Mr Fitzpatrick that the claimant’s grounds of appeal were fully considered but ultimately the panel concluded that the decision to terminate the claimant’s employment was the correct decision and her dismissal was upheld.

[45]We should record that in the claimant’s letter of representation to the ViceChancellor, and in her grounds of appeal against dismissal, she raised no allegations that any of her treatment was related to discrimination on the grounds of race or age.

[46]Within the bundle there is a copy of the respondent’s form GR1: this is the form used to initiate a formal grievance under the respondent’s grievance procedure. It is clear from the document that it had been drafted by the claimant but was never submitted to the respondent. It is significant that, whilst the document uses the words “discrimination” and “victimisation”, it contains no complaint of discrimination on the grounds of any protected characteristic nor does it provide details of any protected act.

[47]We repeat and confirm our earlier stated findings with regard to the claimant’s allegations of racial harassment (Paragraph 15 above).

[48]The documentation available to the tribunal suggests that all appropriate payments for notice and holiday pay were made on termination of the claimant’s employment. As stated above these elements of the claim have not been pursued during this hearing and are taken to have been abandoned. The Law Race and/or Age Discrimination

The Law

[49]The Equality Act 2010 (EqA) Section 4: The protected characteristics The following characteristics are protected characteristics age; disability; gender reassignment; marriage and civil partnership; pregnancy and maternity; race; religion or belief; sex; sexual orientation. Section 13: Direct discrimination(1) A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others. Section 26: Harassment (1) A person (A) harasses another (B) if (a) A engages in unwanted conduct related to a relevant protected characteristic and (b) the conduct has the purpose or effect of (i) violating B's dignity, or (ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B. (4) In deciding whether conduct has the effect referred to in subsection (1)(b) each of the following must be taken into account:- (a) the perception of B; (b) the other circumstances of the case; (c) whether it is reasonable for the conduct to have that effect. (5) The relevant protected characteristics are:- age; disability; gender reassignment; race; religion or belief; sex; sexual orientation. Section 27: Victimisation (1) A person (A) victimises another person (B) if A subjects B to a detriment because— (a) B does a protected act, or (b) A believes that B has done, or may do, a protected act.

(2) Each of the following is a protected act— (a) bringing proceedings under this Act; (b) giving evidence or information in connection with proceedings under this Act; (c) doing any other thing for the purposes of or in connection with this Act; (d) making an allegation (whether or not express) that A or another person has contravened this Act.

(3) Giving false evidence or information, or making a false allegation, is not a protected act if the evidence or information is given, or the allegation is made, in bad faith. Section 39: Employees and applicants (2) An employer (A) must not discriminate against an employee of A's (B)— (a) as to B's terms of employment; (b) in the way A affords B access, or by not affording B access, to opportunities for promotion, transfer or training or for receiving any other benefit, facility or service; (c) by dismissing B; (d) by subjecting B to any other detriment. Section 40: Employees and applicants: harassment (1) An employer (A) must not, in relation to employment by A, harass a person (B) (a) who is an employee of A's; Section 123: Time limits (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. Section 136: Burden of proof (1) This section applies to any proceedings relating to a contravention of this Act. (2) If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred. (3) But subsection (2) does not apply if A shows that A did not contravene the provision.

[50]Decided Cases – Discrimination Nagarajan v London Regional Transport

[1999] IRLR 572

(HL) Villalba v Merrill Lynch & Co

[2006] IRLR 437

(EAT) If a protected characteristic or protected acts had a significant influence on the outcome, discrimination is made out. These grounds do not have to be the primary grounds for a decision but must be a material influence. Discrimination and victimisation may be conscious or sub-conscious. Ladele –v- London Borough of Islington

[2010] IRLR 211

(CA) JP Morgan Europe Limited –v- Chweidan

[2011] IRLR 673

(CA) There can be no question of direct discrimination or discrimination arising from disability where everyone is treated the same. Bahl –v- The Law Society & Others

[2004] IRLR 799

(CA) Eagle Place Services Limited –v- Rudd

[2010] IRLR 486

(CA) Mere proof that an employer has behaved unreasonably or unfairly would not, by itself, trigger the transfer of the burden of proof, let alone prove discrimination. Richmond Pharmacology Limited v Dhaliwa

[2009] IRLR 336

(EAT) Grant –v- HM Land Registry

[2011] IRLR 748

(CA) The necessary elements of liability for harassment are threefold:(1) Did the respondent engage in unwanted conduct?

(2) Did the conduct in question either (a) have the purpose or (b) the effect of either (i) violating the claimant’s dignity or (ii) creating an adverse environment for him.

(3) Was the conduct on a prohibited ground? There is substantial overlap between these questions. Whether conduct was “unwanted” will overlap with whether it creates an adverse environment. It may be material to consider whether it should reasonably have been apparent whether the conduct was or was not intended to produce the proscribed consequences: the same remark may have a very different weight if it was evidently innocently intended rather than if it was evidently intended to hurt. Where harassment is said to result from the effect of the conduct - that effect must actually be achieved. However, the question of whether or not conduct had that adverse effect is an objective one - it must reasonably be considered to have that effect; although the alleged victim’s perception of the effect is a relevant factor. Igen Limited –v- Wong

[2005] IRLR 258

(CA) The burden of proof requires the employment tribunal to go through a two-stage process. The first stage requires the claimant to prove facts from which the tribunal could that the respondent has committed an unlawful act of discrimination. The second stage, which only comes into effect if the complainant has proved those facts, requires the respondent to prove that he did commit the unlawful act. If the respondent fails then the complaint of discrimination must be upheld. Madarassy v Nomura International Plc

[2007] IRLR 245

(CA) The burden of proof does not shift to the employer simply on the claimant establishing a difference in status (eg race) and a difference in treatment. Those bare facts only indicate a possibility of discrimination. They are not, without more, sufficient material from which a tribunal “could conclude” that the respondent had committed an unlawful act of discrimination. Although the burden of proof provisions involve a two-stage process of analysis it does not prevent the tribunal at the first stage from hearing, accepting or drawing inferences from evidence adduced by the respondent disputing and rebutting the claimant’s evidence of discrimination. Rihal –v- London Borough of Ealing

[2004] IRLR 642

(CA) Anya –v- University of Oxford

[2001] IRLR 377

(CA) Shamoon –v- Chief Constable of the RUC

[2003] IRLR 285

(HL) R –v-Governing Body of JFS

[2010] IRLR 186

(SC) In a case involving a number of potentially related incidents the tribunal should not take a fragmented approach to individual complaints, but any inferences should be drawn on all relevant primary findings to assess the full picture. Any inference of discrimination must be founded on those primary findings. Where there is no actual comparator a better approach to determining whether there has been less favourable treatment on prescribed grounds is often not to dwell in isolation on the hypothetical comparator but to ask the crucial question “why did the treatment occur?” In deciding whether action complained of was taken on grounds of race a distinction is to be drawn between action which is inherently racially discriminatory and that which is not; to establish that the action was taken on racial grounds in the former case motive or intention of the perpetrator is not relevant - in the latter it is relevant. Laing –v- Manchester City Council

[2006] IRLR 748

In reaching its conclusion as to whether or not the claimant has established facts from which the tribunal could conclude that there had been unlawful discrimination the tribunal is entitled to take into account evidence adduced by the respondent. A tribunal should have regard to all facts at the first stage to see what proper inferences can be drawn. Unfair Dismissal

[51]The Employment Rights Act 1996 (ERA) Section 94: The Right not to be unfairly dismissed(1) An employee has the right not to be unfairly dismissed by his employer. Section 98: General Fairness (1) In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show— (a) the reason (or, if more than one, the principal reason) for the dismissal, and (b) that it is either a reason falling within subsection (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.

(2) A reason falls within this subsection if it— (a) relates to the capability or qualifications of the employee for performing work of the kind which he was employed by the employer to do, (b) relates to the conduct of the employee, (c) is that the employee was redundant, or (d) is that the employee could not continue to work in the position which he held without contravention (either on his part or on that of his employer) of a duty or restriction imposed by or under an enactment. (4) ………where the employer has fulfilled the requirements of subsection (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer)— (a) depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and (b) shall be determined in accordance with equity and the substantial merits of the case.

[52]Decided Cases – Unfair Dismissal Wilson –v- Post Office

[2000] IRLR 834

(CA) Categorisation of the true reason for a dismissal under Section 98(1) and (2) ERA is a question of legal analysis the and a matter for the tribunal to determine. Taylor –v- Alidair Limited

[1978] IRLR 82

(CA) In a capability dismissal the correct test of fairness is whether the employer honestly and reasonably held the belief that the employee was not capable and whether there was a reasonable ground for that belief. Lynock –v- Cereal Packaging Limited

[1988] IRLR 510

(EAT) In determining whether to dismiss an employee with a poor record of sickness absence and employers approach should be based on sympathy understanding and compassion. Factors which may prove important include: the nature of the illness; the likelihood of the illness recurring; or of some other illness arising; the length of the various absences and the periods of good health between them; the need of the employer to have its work done; the impact of the absences on those who work with the employee; the adoption and exercise of a policy in connection with absence due to sickness; the importance of a personal assessment in the ultimate decision; and the extent to which the difficulty of the situation and the position of the employer have been explained to the employee. A disciplinary approach, involving warnings, is not appropriate in a case of intermittent sickness absence - but the employee should be cautioned that the stage has been reached when it has become impossible to continue with the employment. Polkey –v- AE Dayton Services Ltd.

[1987] IRLR 503

(HL) In a case of incapacity, an employer will normally not act reasonably unless he gives the employee fair warning and an opportunity to improve and show that she can do the job. Iceland Frozen Foods v Jones

[1982] IRLR 439

(EAT) Post Office –v- Foley & HSBC Bank plc –v- Madden

[2000] IRLR 827

(CA) It is not for the tribunal to substitute its own view but to consider whether the respondent’s decision came within a range of reasonable responses by a reasonable employer acting reasonably. Sainsbury’s Supermarkets Limited –v- Hitt

[2003] IRLR 23

(CA) The objective standards of the reasonable employer must be applied to all aspects of the question whether an employee was fairly and reasonably

[53]The ACAS Code We have considered the ACAS Code of Practice 1 on Disciplinary and Grievance Procedures 2015 (“the ACAS Code”) and the ACAS Guide: Discipline and Grievances at Work (2019). The Claimant’s Case

[54]Put simply the claimant’s case is: -(a) That during the period 2014 - 2019 she was subject to a campaign of persecution on the grounds of her race and/or age. She relies on the series of incidents set out in Paragraphs 17 – 39 above. For the purposes of these claims, the claimant identifies her racial heritage as “Indian”; and the relevant age group as “over 50”. The claimant specifically accuses Ms Moten and Professor Hardy of directly discriminating against her; and she maintains the others including Ms Clark and Ms Cartmill were manipulated by Ms Moten for discriminatory reasons.

(b) That because of the campaign of persecution, in October 2018, she started to have mental health difficulties which she categorises as depression. The illness led to lengthy absences from work between October 2018 - January 2019, and again from March 2019 onwards. It is the claimant’s case that these absences are wholly attributable to her treatment by the respondent; and, accordingly, were entirely the responsibility of the respondent. The absences should not have attracted any adverse consequences for the claimant.

(c) That accordingly it was outside the range of reasonable responses for the respondent to dismiss the claimant on grounds of capability. The Respondent’s Case

[55]The respondent’s case is that none of the treatment about which the claimant complains was unfair or unreasonable. It amounts to proper and legitimate management action which the claimant simply would not accept. Even if, which the respondent does not admit, any management actions were unfair, there is no basis upon which associate such actions with the claimant’s age or her race.

[56]The respondent maintains that the claimant has not established that she was suffering from any recognised mental illness; still less, that its actions were the cause of such illness. In any event, causation is of only marginal relevance. When it came to the Absence Review Procedure, the respondent was properly focused on the future: whether the claimant would be in a position to resume duties and maintain a satisfactory attendance record.

[57]Professor McLaughlin concluded that it was most unlikely that the claimant would resume duties on a satisfactory basis and maintain satisfactory attendance. There was ample evidence upon which to justify such a conclusion and all proper enquiries were made and alternatives considered. On this basis, the respondent’s case is that the claimant was fairly dismissed. Discussion Discrimination

Discussion

[58]We have carefully considered all of the evidence advanced by the parties, both oral and documentary, and we cannot find any example of the claimant being treated unreasonably; unfairly; unfavourably; or less favourably than any comparable employee. The claimant’s relationship broke down with successive managers and with her colleagues. We find that Ms Moten was patient and determined in trying to address issues with the claimant’s performance and conduct. These were not merely her concerns but concerns regularly expressed by others. Fundamental to the issues, in our judgement, is the fact that the claimant simply would not accept authority from Ms Moten or from anyone else. And she was determined not to be subject to an effective PIP.

[59]Further there is no basis to associate any of the acts about which the claimant complains or her age. Even if we have found that you have been unreasonable or differential treatment this would not have been sufficient to lead us to a conclusion of discrimination.

[60]Absent any basis upon which we could conclude that the claimant had been treated less favourably than a comparable employee - real or hypothetical, and absent any basis to link the conduct complained of to any protected characteristic, it must follow that the claimant has not established before us facts from which we could properly infer that there had been discrimination on grounds of age or race.

[61]Accordingly, it follows that the claimant’s claims for direct discrimination and harassment must fail and will be dismissed.

[62]So far as the victimisation claim is concerned, on the basis of what we have found above, it follows that we made no finding of detrimental treatment. But, more importantly, there is simply no evidence of the claimant ever having committed a protected act as required by the provisions of Section 27 EqA to ground a victimisation claim. Accordingly, this claimant must also fail and will be

[63]The incidents which the claimant specifically claims were acts of discrimination; harassment; or victimisation took place whilst the claimant was in the workplace under the direct or indirect line management of Ms Moten. She was absent from the workplace from March 2019 onwards: decisions taken thereafter were taken by more senior managers than Ms Moten including Professor Hardy and Professor McLaughlin. In our judgement, any suggestion of a continuing act of discrimination must have come to an end in March 2019. On that basis, the discrimination claim was presented out of time by reference to Section 123(1)(a) EqA. The claimant has advanced no case as to why it would be just and equitable for time to be extended pursuant to Section 123(1)(b) EqA. It follows therefore that, even if we had not dismissed the discrimination claims substantively, we would have found that, pursuant to Section 123 EqA, the tribunal lacked jurisdiction to consider them. Unfair Dismissal

[64]The respondent has established to our satisfaction that the sole reason for the claimant’s dismissal was the respondent’s belief that, looking to the future, there was no reasonable prospect that she would be able to improve her attendance so as to perform the duties satisfactorily. Accordingly, we find that the claimant was dismissed for a reason relating to capability; a potentially fair reason pursuant to Section 98(1) and (2) ERA.

[65]There was ample evidence to justify this conclusion: the claimant had taken two lengthy absences; one from October 2018 - January 2019; the second from March 29 onwards. In neither case was there any definitive diagnosis or prognosis: the OH report indicated that there was no medical reason why the claimant could not attend work and perform her duties. It was evident to Professor McLaughlin and to the appeal panel that the claimant was unwilling to return to work and submit to the PIP. If she had returned soon after the Stage II meeting, they concluded that within a short period arrangements would again break down and there would be further absences.

[66]Redeployment opportunities were considered: non-were available. And, even if it had been possible to deploy the claimant elsewhere, the PIP would still have been necessary and would have caused further breakdowns.

[67]In the light of these reasonable conclusions, in our judgement, the decision to dismiss the claimant may be regarded as a harsh decision, but it was within the range of reasonable responses available to the respondent.

[68]The respondent followed a conspicuously fair procedure fully compliant with the ACAS Code.

[69]In these circumstances we find that the claimant was fairly dismissed. Her claim for unfair dismissal is not well-founded and will be dismissed. Other Claims

[70]As stated earlier, the claimant’s claims for unpaid holiday pay and unpaid notice pay (breach of contract) have not been pursued at the hearing before us. We take them to have been abandoned. But, in any event, absent any evidence to support such claims, we find that they are not well-founded and they will be

Conclusions

[71]Accordingly, for the reasons given, the claims are dismissed in their entirety.

Conclusions

[1]The claim. This is a claim by Ms K Mistry (the claimant) against her former employer Coventry University (the respondent). There was a Closed Preliminary Hearing (CPH) held on 30 March 2020 by Employment Judge Johnson by telephone. I do not propose to recite the history and background to the claim as it is set out in the case management summary of Judge Johnson. However, he confirmed that by a claim form presented on 2 October 2019, following a period of early conciliation from 7 August 2019 to 3 September 2019, the claimant brought complaints of:(1) unfair dismissal,

(2) discrimination on grounds of age and race,

(3) breach of contract and

(4) unpaid annual leave entitlement.

[2]At the CPH the claimant represented herself. Various orders were made for the just disposal of the final hearing, although the date was not fixed at that time. It was, however, fixed later for 6 days commencing on 19 April 2021. Judge Johnson had defined the issues. Amongst the orders he made was one in relation to amendment. “The claimant shall provide the respondent and the tribunal by 20 April 2020 with details of each form of treatment or detriment identified in the list of issues, setting out when the incident took place, who was involved and what was said or done. In providing this information the claimant should provide (if possible), the date and time of the incident and with as much detail as possible of what was said or done by named individual.” The respondent was granted the usual order, to the effect that if so advised it shall provide the claimant and the tribunal with an amended response by 26 May 2020.

[3]Unfortunately, the hearing did not take place as planned on 19 April 2021. It came before Judge Cookson, and 2 non-legal members. After some discussion an order was made on day 2 relisting the case over eight days commencing on 25 April 2022. It was also ordered that there would be an ADR hearing on 28 February 2022, and tailor-made directions for the just disposal of those hearings were given. Judge Cookson also ordered that there would be an Open Preliminary Hearing (OPH) on 9 August 2021 to determine the following: whether the claimant needed to amend her claim form.

[4]Judge Cookson set out the reasons why the final hearing in April 2021 needed to be adjourned, and she included this: “There were initial issues raised about the extent to which the claim now presented went beyond the scope of the original claim and the claimant was invited to make an application to amend her claim and issues were also raised about availability of respondent witnesses so that the claimant was invited to consent to adjournment. The claimant declined to [do] take either step and was keen to proceed and on this basis the panel undertook reading on the first day.” Judge Cookson noted the events at the start of the second day, and having reflected upon matters the claimant agreed it was best to adjourn the hearing. The hearing was converted into a CPH and Judge Cookson gave detailed directions as to what was required by the claimant to identify her various claims and any amendments that she wanted to make. I do not propose to recite everything here as it can be read in the order. Suffice it to say that Judge Cookson gave very detailed guidance to the claimant as to what was required at the OPH for the amendments to be considered. The Judge suggested a form of template that the claimant may wish to adopt. 4. The claimant was ordered to set out by reference to the claim form and particulars of claim how matters set out in her witness statement prepared for the final hearing related to her claim. She had to do this initially by 17 June 2021, but it was done by 7 July 2021. Thereafter, the respondent was to identify matters which required amendment by 8 July 2021, and this was in fact done by 16 July 2021. The claimant wrote to the tribunal as directed by 22 July 2021 to identify amendments for new claims or say why no amendment was needed. This was regarded as an application to amend (page 120 in the bundle produced for the OPH). The application explains the reasons and delay which I summarise as follows:(1) initially due to illness, and

(2) not understanding the process because she could not identify the claims accurately. There was a further exchange of correspondence between the parties wherein the respondent asked for clarification and the claimant sought to do that (121-130). Later, on 28 July 2021 the claimant asserted that she was still getting amendments to the tribunal (132- 137). The claimant also supplied a schedule of loss (139-141) in which she claimed injured feelings amounting to £240,400.00.

[5]At the start of the OPH I enquired of the claimant whether she required any reasonable adjustments, and none were specified. We all agreed the need for regular breaks. We agreed a timetable for the hearing. By 2.30pm I had taken the evidence and submissions; but I decided that I needed more time than was available, and taking into account other reasons specified below, I adjourned the hearing. Therefore, it was agreed that I would give an oral judgement and reasons when we reconvened at 10am on 14 September 2021. We agreed that the 2nd day of the hearing would also be via CVP. I had to put the start time back until 2pm, on account of having further reading to undertake.

[6]The evidence. I received oral evidence from the claimant only. The parties also made submissions to me, which I mention later; and I received documents which I marked as exhibits as follows: R1 Agreed bundle of documents (178 pages) for this OPH R2 Agreed bundle of documents produced at the hearing on 21 April 2021

7.1 The law. The respondent took time points in defending the claims and the application to amend. In dealing with the issue of a continuing act, I had regard to the legacy case law which pre-dated the EQA, as it is still relevant. In the case of Calder –v- James Finlay Corporation Limited

[1989] IRLR 55

, which was approved by the House of Lords in Barclays Plc –v- Kapur and others

[1991] IRLR 136

, where it was held that an act extending over a period gave rise to continuing discrimination throughout employment when the claimant then was told that she was not “eligible” for a mortgage subsidy and alternatively this was subjecting her to a detriment whilst employment continued. A continuing act should be approached as being a rule or regulatory scheme which during its currency continues to have a discriminatory affect. The fact that a claimant continued to be paid less than a comparator was a consequence of the decision not to up-grade, not a continuing act of discrimination in the case of Sougrin -vHaringey Health Authority

[1991] IRLR 447

. The matter was looked at again in the case of Cast -v- Croydon College

[1998] IRLR 318

. The Court of Appeal held, amongst other things, that the claimant’s complaint was of several decisions by the employer which indicated the existence of a discriminatory policy in her post and its application to her and that this constituted an “act extending over a period”. The Court of Appeal considered the issue in Hendricks –v- Commissioner of Police for the Metropolis

[2003] IRLR 96

. The question is whether the acts complained of by the claimant amounted to an “act extending over a period” as distinct to a succession of unconnected or isolated specific acts, for which time would begin to run from a date when each specific act was committed. The claimant asserted that incidents were linked to one another and that they were therefore evidence of a “continuing state of affairs”.

7.2 I then consider the exercise of my discretion over the three-month time limit applying to the EqA, and I have to consider whether it is “just and equitable” to let the case, or part of it, in after three months if the acts complained of are out of time and do not form part of an act extending over a period. The case of British Coal Corporation v Keeble

[1997] IRLR 337

provides guidance on how to exercise my discretion. This was considered later in the case of Chohan v Derby Law Centre

[2004] IRLR 685

EAT. I also considered the matters mentioned in s.33 of the Limitation Act 1980. Although that refers to the broad discretion for the court to extend the limitation period of three years in cases of personal injury and death, it also requires the court to consider the prejudice which each party would suffer as a result of a decision to be made. I am required to have regard to all the circumstances of the case and in particular, amongst other things, to –

(a) The length of and the reasons for the delay.

(b) The extent to which the cogency of the evidence is likely to be affected by the delay.

(d) The promptness with which the claimant acted once she knew of the facts giving rise to the cause of action.

(e) The steps taken by the claimant to obtain appropriate professional advice once she knew of the possibility of taking action.

7.3 In the case of Robertson v Bexley Community Centre

[2003] IRLR 434

the Court of Appeal confirmed that the Employment Tribunal had a wide discretion in determining whether or not it was just and equitable to extend the time. The tribunal is entitled to consider anything that it takes to be relevant. Nevertheless, the case re-asserts that time limits are exercised strictly in Employment Tribunal cases. When considering the discretion over a claim that is out of time, and whether the time should be extended on just and equitable grounds, the Court of Appeal said that there was no presumption that the tribunal should do so. The tribunal cannot hear a complaint, unless the claimant convinces it that it is just and equitable to extend the time. Thus, the exercise of the tribunal's discretion is the exception rather than the rule.

7.4 The law in relation to the amendment application. Rule 29 of the tribunal rules gives a broad discretion to the Employment Tribunal to allow amendments at any stage of the proceedings either on its own initiative or an application by a party. This discretion must be exercised in accordance with the overriding objective of dealing with cases fairly and justly in Rule 2, which states: “Overriding objective 2. The overriding objective of these Rules is to enable Employment Tribunals to deal with cases fairly and justly. Dealing with a case fairly and justly includes, so far as practicable— (a) ensuring that the parties are on an equal footing; (b) dealing with cases in ways which are proportionate to the complexity and importance of the issues; (c) avoiding unnecessary formality and seeking flexibility in the proceedings; (d) avoiding delay, so far as compatible with proper consideration of the issues; and (e) saving expense. A Tribunal shall seek to give effect to the overriding objective in interpreting, or exercising any power given to it by, these Rules. The parties and their representatives shall assist the Tribunal to further the overriding objective and in particular shall co-operate generally with each other and with the Tribunal.”

7.5 The statutory provisions on time limits. Basically s.123 applies and 3 months is the limited but it can be extended, continuous act or omission or on just and equitable grounds.

7.6 I know from Selkent Bus Co Ltd v Moore

[1996] ICR 836

, EAT, that when making a determination of an application to amend I am required to carry out a careful balancing exercise of all relevant factors, having regard to the interests of justice and the relative hardship that would be caused to the parties by granting or refusing the amendment. Relevant factors include: the nature of the amendment, the applicability of time limits, and the timing and manner of the application.

7.7 A significant feature in this case was that the parties recognised the application to amend was, on the face of it, made out of time. In considering the exercise of my discretion I would need, in part, to take into account the 3-month time limit applying to the EqA and the provisions for extending time as described above.

7.8 I make some general observations at this point, including some which were drawn to my attention in the submissions. I am conscious of the fact that when deciding whether or not it is just and equitable to extend time for the presentation of a discrimination complaint, or an amendment, it is unnecessary to give separate consideration to the merits of the claims; but it is part of my task in the exercise of balancing the prejudice likely to be suffered by both parties should time not be extended. It has long been established that in cases such as this there is a multi-factorial assessment involved when no single factor is determinative. In exercising my discretion, I must ensure that no significant circumstance is left out. A key factor is whether a fair trial of the issue is still possible. Nevertheless, as described above, I must weigh other factors such as serious and avoidable delay by the claimant in bringing her claim, or in obtaining advice about the possibility of a claim, and of any amendment.

[8]The facts. Once the case was introduced and we started considering the detail of it the claimant indicated that she was working from a “timeline” she had produced commencing at page 132 in the OPH bundle. The respondent asserted that this would not be a good way of proceeding and that we should use the table commencing at page 76 as that was in the agreed format. The claimant confirmed that she had had some fairly recent legal advise but she still didn’t understand the process, reiterating that this also applied to her position when she first commenced the proceedings, asserting she wasn’t well and did not know the law. I decided that the best way forward was to go through the list produced on 16 July 2021. The claimant wanted to go through her timeline stating she believed that everything in it was in the claim. She then said she was prepared to work from the schedule at 107 and she emphasised that I should recognise her as a litigant in person. Counsel for the respondent asked for an adjournment so that he could consider the claimant’s new position and I agreed to the request. Upon resumption I took the claimant through the schedule at 107, item by item, but this became very difficult as the claimant made certain concessions on an item only to change her mind later after we had moved on to the next item. The claimant then stated that at the CPH before Judge Johnson the written record did not give rise to an accurate account of what was said, and she emphasised she was unwell at the time. She asserted that was why Judge Johnson gave her more time to give further information and she had wanted more time for legal assistance.

[9]The claimant then made reference to the original trial bundle and I pointed out that I did not have access to it at this hearing. We then reconsidered the structure of the OPH and it was agreed that the claimant would give oral evidence at this stage and she was sworn in. She gave brief evidence in chief to the effect that her email dated 22 July 2021 timed at 15:14 was her explanation for the delay in making her application to amend the claim. She confirmed that it was true that due to illness and not understanding the process she did not identify her claims accurately.

[10]The claimant confirmed that she had no one to advise on how she should issue the claim and that everything that she did was through knowledge she gained on the Internet, and through family and friends. It was only after Judge Cookson gave her some leaflets on sources of free advice that she managed to obtain some legal advice. She accepted that her application to amend was not very clear; but once again emphasised her position as a lay person and stated that the biggest drawback was not understanding what was required of her.

[11]I then heard from Mr Griffiths with the respondent’s submissions. He addressed me orally. He supplied me with copies of three authorities:(1) Selkent,

(2) Keeble, and

(3) Adedeji v University Hospital Birmingham NHS Foundation Trust

[2021] EWCA Civ 23

. He submitted that I should look at the present case in the round; take into account all relevant factors, which included the public interest being properly served, which was not, in the present case, being served with the wasting of court time by the claimant. The claimant was advancing new facts on issues which were out of time. The claimant was not simply changing labels; but introducing new matters. The claimant had failed to demonstrate her incapacity which prevented her dealing with the amendment sooner. Furthermore, any such incapacity did not prevent her from completing a detailed witness statement for the hearing in April 2021. When the claimant presented her claim she was able to provide details in the claim form and a rider to it, setting out all her factual matters and these would have formed the basis of the six-day trial.

[12]Mr Griffiths submitted it was only when witness statements were exchanged that the claimant’s new allegations came to light. Thus, the respondent had been taken by surprise. The claimant’s application to amend had caused the loss of a trial listed over six days. The proceedings today had been unsatisfactory because the claimant had poorly prepared her application to amend. He emphasised again that these were not simply alterations to labels but new facts (109) and the first time names have been mentioned. The claimant is now proposing a wholly new case. The claimant had failed to respond to Judge Johnson’s amendment order. The claimant intervened and said that she had replied, although she also said she did not think it was required. She thought that the list of issues at 63-68 was sufficient and had been the reply. I asked her for the date; but she could not say when she had sent it in. Counsel resumed and said that the claimant could have said that harassment was an alternative pleading to direct discrimination; but had not done so. The timing of the application was against the claimant and these were substantive allegations. Mr Griffiths referred to the case of Adedeji, and paragraphs number 37 and 38, for guidance on the application of Keeble.

[13]Mr Griffiths reminded me that the burden of proof was on the claimant to persuade me to extend time. I should conclude that there was no evidence of a medical affliction which prevented the proceedings having been presented earlier or an earlier amendment application to include those items now sought to be added. There was nothing to show the claimant was prevented from applying to amend sooner than she did. The claimant had been told in 2020 to amend and she had fail to do so. The claimant had wasted 6 days of the tribunal time in April 2021, and now there was a further day lost with her poorly presented application to amend. He asked me to find that the length of the delay was excessive, the reason for delay was unclear and there was prejudice to the respondent in that it could not now investigate as it could have done and some of the respondent’s potential witnesses had left its employ some time ago. The claimant intervened to say that she admitted she had problems in understanding and was confused by the order of 20 April 2020. She asserted that she had replied and she had asked the respondent to do the right thing and include what she wanted to go in the bundle for today. She said the respondent had deliberately failed to include her reply in the bundle. Mr Griffiths then continued and asked me to reject the whole of the application to amend and allow the case to proceed only as originally pleaded.

[14]Before the claimant commenced her oral submissions I asked if she wanted time to read the three cases which had been provided to her by Mr Griffiths. She replied by saying: “I wouldn’t understand them anyway, so I don’t want to bombard myself.” Mr Griffiths confirmed that the two witnesses by the name of Cartmill and Halliday had left the employment of the respondent. The claimant then resumed and said the delays were not due to her entirely. She submitted that she was granted an extension of time until 15 June 2020 to give the information pursuant to Judge Johnson’s order and she had provided it. Unfortunately, since I was working remotely I did not have the file with me to confirm. The claimant then explained that there was fault on the part of the respondent’s representatives, stating there had been a delay in exchanging documents and agreement over the bundle. Some important documents had been included at the very end. The claimant submitted that she had been unwell previously and she had now supplied an accurate list of the incidents relied upon in the timeline. She had submitted a GP report saying that she was unwell. That was not before me in the bundle prepared for the OPH. The claimant said that she was “shocked” that I was not in possession of the main bundle used in April 2021. The claimant told me that if I had the tribunal file in front of me and the original trial bundle, I would see that she was given an extension of time to 15 June 2020; and she sent it in to the tribunal pursuant to that extension of time which was granted on 25 May 2020. The respondent put in an amended response on 13 July 2020. She then returned to outlining arguments that had preceded the trial in April 2021, about missing documents. She wanted to highlight how bad the picture of her had been painted by the respondent; and she wanted to redress the balance. Once again she reiterated that she was not well and used her doctor’s report in support. She said a lot of information was in the final hearing bundle to support the amendments. She said that: “I don’t understand instructions. As a layperson I don’t understand what I need to do. The process makes me nervous. Take this into account.”

[15]I asked the claimant if she wanted to comment on the three cases provided to her by Mr Griffiths. Initially she said no, “I haven’t understood them properly. It takes me a long time to read them. If I skim read them now everything wouldn’t be digested.” I then asked the claimant if she wanted some time to read them. She replied: “Possibly, I would use tonight to do it.” Mr Griffiths intervened and said that he put two of the cases in the “chat box” at the last hearing in April. The claimant said that she only read “the Madarassy case”.

[16]At that point I canvassed with the parties the idea of adjourning the OPH to enable the claimant to read the 3 cases and I would give her until 4pm on the following day to let the tribunal and the respondent have any comments she may wish to make. I indicated that I would also take the opportunity to have a look at the tribunal file and the main bundle from April 2021, as the claimant had raised concern about my not having them available and it would help me resolve some of the issues over responses or failure to respond to orders. This proposal was agreeable to both parties. The claimant did write in to the tribunal the next day stating that she had nothing to say about the 3 cases. We agreed an adjournment of the OPH until 14 September 2021 commencing at 10am with a time estimate of three hours. I said that I would consider the matter in Chambers before then, and should be in a position to give an oral judgment and reasons at the start. This would be followed by any appropriate case management orders to facilitate the just disposal of the final hearing which is due to start on 25 April 2022 and lasting for 8 days.

[17]When I attended at the tribunal office on 25 August 2021 I was able to see the tribunal’s file relating to the case. I could not find any evidence that the claimant had been in touch with the tribunal to say that Judge Johnson’s case summary was wrong in any way pursuant to paragraph 3.1. Therefore the claimant did not challenge any inaccuracy and/or incompleteness in the orders or case summary. I was able to see that the claimant sent an email to the tribunal office on 6 April 2020 when she asked for some more time to comply with Judge Johnson’s orders. The tribunal wrote back to the claimant on 15 April 2020 asking for clarification of the email of 6 April 2020 and on 27 April 2020 the claimant wrote to the tribunal again, asking for an eight week extension to comply with orders 1.1 and 4.1, being the amendment and schedule of loss orders. The respondent on 21 May 2020 signified that it had no objection to the claimant’s application. On 15 June 2020 the claimant submitted a schedule of loss and “list of complaints”. The respondent later referred to them as further and better particulars. The respondent filed its amended grounds of resistance on 13 July 2020.

[18]In fairness to the claimant, the “list of complaints” document was not in the bundle that I had in the first day of the OPH. When the claimant submitted that document the only thing that was stated in the covering email (which was sent to the respondent’s representative and copied to the tribunal) on 15 June 2020 was this: “As per your email of 25th of May and case management order please see attached schedule of loss and list of complaints.” This did not indicate that an application to amend was being made.

[19]I have already described events concerning the proposed amendment and the way it was raised at the hearing in April 2021. I reminded myself of paragraph 63 of her order where Judge Cookson stressed the purposes of the exercise was to identify any matters that the claimant identifies as claims she wishes the employment tribunal to determine to help identify if an amendment application is required. Judge Cookson warned the claimant: “If she fails to make an application to amend her claim in relation to any new matters….. the tribunal will not make any legal determination in relation to those claims.” She was encouraged to help identify if an amendment application was required. On 7 July 2021 the claimant sent to the tribunal pursuant to paragraph 63 her list. It uses the headings provided by Judge Cookson; but what it fails to do is indicate whether the items contained in the list were the subject of an application to amend. I think that the respondent recognised that, and tried to help by supplying a further table on 16 July 2021 which had an additional column on the far right giving the respondent’s response to each item numbered 1 to 55. In the covering letter the respondent set out two lists, firstly listing those matters which it asserted the claimant must make an application to amend her claim, and in the second making a request to the claimant to clarify what she intended so that it could confirm its position.

[20]The claimant acknowledged the request on 19 July 2021 and said that she would like to make an application to amend the claim to raise new claims. She said: “I am in the process of setting out my new claim and will forward it as soon as it’s completed.” The claimant, on 22 July 2021 (120), supplied a further copy of the schedule attaching an additional column on the far right clarifying those matters where the respondent had requested clarity. The claimant failed to identify in relation to those matters whether they were existing claims or new claims. She also said this in her email: “I would like to make an application to amend my claim to raise new claims. Initially, due to illness and not understanding the process I was not able to identify my claims accurately. I am in the process of setting out my new claim and will forward it as soon as it’s completed.” The respondent objected to any application in an email dated 27 July 2021. On 28 July 2021 the claimant wrote to the respondent and the tribunal and said this: “I write in response to the objection raised by the respondent and would like to bring to their attention point 63 of the CMO. I would like to clarify that the original claim did mention “discrimination, harassment and victimisation” and the evidence is already provided in the bundle and I am now merely listing the acts under its appropriate label. I have endured significant prejudices in my last 7 years at work and it would be a great injustice to me if I was not allowed to present these claims as the decision made by the tribunal will effect the rest of my life. Since the termination of my contract I had to face a lot of hardships which the perpetrators have not. I will endeavor to get the amendment to you very soon.” I conclude that, at that time, the claimant had not made an application; but was still in the process of going to do so in due course.

[21]The claimant then prepared and served what she called a “time line of incidents/claims.” These appear at pages 121 to 130. This adopts a completely new format, and still fails to state what are existing and new claims.

[22]My conclusions and reasons. I apply the law to the facts and explain my analysis.

[23]The length of and reasons for the delay. The claimant has failed to demonstrate to me that she has made an application in writing to amend her claim. This was an issue which was canvassed by Judge Johnson on 30 March 2020. The expectation was after that hearing the claimant would give detailed information about those matters which were identified in the list of issues that he defined. I conclude that the claimant did not say that the issues were inaccurate or incomplete in writing to the tribunal as she asserted to me on the first day of this OPH. I think the list provided by the claimant on 15 June 2020 is further information about the existing claims. It would appear that the claimant made an oral application to Judge Cookson, but there was a lack of clarity in it. This made the further orders necessary to inject some clarity into any application from the claimant. The claimant has not made it clear when she was making an application in correspondence. It goes without saying that some procedural vigour is necessary in making such an application and processing it. On the face of it, any new claims, which are not specified, will be substantially out of time. The various documents that the claimant has supplied are poorly crafted, and plainly if allowed would substantially widen the scope of the claim, without much particularity all.

[24]It is essential that a person bringing a claim must be responsible for formulating it. It is their case and they are obliged to set it out properly in the claim form. It is well established that a filed claim cannot be altered haphazardly. It cannot be amended unless and until permission has been given by the tribunal. There is helpful information for parties given in the Presidential Guidance on the rules of procedure, and Judge Johnson in his order provided the claimant and the respondent with a link to it. There is specific guidance about amending a claim, in guidance note 1: paragraphs 1 to 14. These are all well worth reading, and I have taken them into account in coming to my decision. The claimant put forward illness and lack of understanding as her explanations for the delay in making the application to amend, and even for not putting the “new” matters in the original claim form. This argument was not persuasive and lacked relevant supporting medical material throughout the time leading up to the presentation of the claim and any amendment application. Some of the claims are years out of date, even if there was an application to amend to include them. I conclude the reason for any delay was inactivity on the part of the claimant. She has known the relevant facts for years and done nothing about them. She knows she has a remedy available in the tribunal, and has failed to take steps in a timely manner to make any amendment. However, that in itself is not the end of the matter.

[25]The extent to which the cogency of the evidence is likely to be affected by the delay is relevant in this case. The respondent submits that some of the personnel referred to have now left their employ. Some of the allegations go back many years. I do recognize, however, that the parties have already exchanged witness statements and they will be able to refocus should any amendment be granted.

[26]The claimant has not argued that the respondent had failed to co-operate with any request for information relevant to any application she has been making or attempting to make in relation to an amendment.

[27]The promptness with which the claimant acted once she knew of the facts giving rise to the cause of action has been lamentable in relation to those matters that do not appear in the claim form.

[28]The claimant has taken some limited legal advice, but this only appears to have been after she attended at the hearing in April 2021, and by that time any matter subject to an amendment would have been substantially out of time.

[29]I then looked at the balance of hardship. If I do not grant the amendment or amendments the claimant will be shut out from having those particular issues tried before a full tribunal. However, there are a number of matters which are in play which can be heard. Has the delay caused prejudice to the respondent? The answer to that is yes, as the application to amend has led to the loss of the trial dates in April 2021 and any attendant costs in relation to it. There is obviously further delay to the next hearing date in 2022. On reading the various documents submitted by the claimant in support of the amendment, if there were viable claims in an application to amend then they were likely to fail because they are not issues upon which the tribunal can give a judgement because they are background matters or something else and many of them will be out of time. There is a prospect that the respondent would be put to the expense and inconvenience of having to deal with its defence of claims which have potentially little merit. The details so far provided by the claimant are woefully inadequate. There should be specific allegations set out with precision and clarity, and this detail is lacking.

[30]I noted that Judge Johnson ordered at paragraph 3.1 that if a party considered what was contained in his case management summary and issues was inaccurate or incomplete in any important way they should say so in 14 days of the date the order was sent to them (it was sent to the parties on 15 April 2020). The claimant made no comment. This contradicts what she told me on the first day of the OPH.

[31]When coming to my conclusions I had regard to how the claimant presented to me. The claimant is articulate and intelligent. However, she was not a good witness in her own cause. She was prone to exaggeration. This was demonstrated in the way in which she has valued her claim. In particular where she seeks compensation of £240,400.00 for injured feelings. The application to amend was disjointed, and difficult to follow. In effect, it was as if she was asking the tribunal to sort the application out for her, by putting it into shape, as well as make the decision over it. I concluded that the application to amend was a further exaggeration by widening the scope of the complaints without giving any real thought to the process and the effect on the case..

[32]I appreciated that the claimant was and is a litigant in person and that I should do my best to enable and empower her by adapting the system to suit such litigants. This helps with the concept of the equality of arms in litigation, and Rule 2. However, I cannot change the law or adapt it to give her an advantage. The claimant was resourceful and had some knowledge, and had obtained some limited legal advice. Unfortunately, she was not focused, as demonstrated by her failure to comply with the order of Judge Johnson, for further information, wherein it lacked specific details, and the order of Judge Cookson in the structure and approach to the amendment. I found that the claimant lacked objectivity and emotional distance from her case. Factors such as these are bound to have an adverse effect on the preparation and presentation of a litigant in person’s case, and I believe that that is true in the case before me. The claimant was prone to exaggeration in the way in which she has valued her claim, and this has spilled out into exaggeration over obstacles which she stated prevented her from making her amendment much sooner or including the same facts in the original claim form and particulars of claim.

[33]The claimant provided some information about her medical condition and treatment. She had a counselling appointment on 9 September 2019. In a letter from her GP practice dated 18 March 2020 this set out that the claimant had been suffering from work-related stress and anxiety symptoms, manifesting as low mood, anxiety and chest pain since October 2018, and this was ongoing. On 25 August 2020 the claimant’s GP practice wrote a letter indicating the claimant’s anxiety disorder as a result of stress from work since October 2018, and she continues to be on antidepressant medication to help her sleep. At that time she was awaiting a referral to the psychotherapy team. In effect, the claimant is asking me to imply into this documentation confirmation that she was incapable of submitting a claim or amending it within the appropriate time. I cannot come to that conclusion on the information before me. The claimant has failed to demonstrate any relevant physical or mental impediment on the balance of probabilities which would have prevented her doing what was necessary to ensure her claim was brought in time and applying to amend shortly thereafter.

[34]I made it my task to go into the tribunal office and look at the hard copy case file to see if there was anything that would help the claimant further in her application to amend. Also, I sought to find the original bundle of documents but this had been presented electronically to the tribunal office and access was no longer available. I made enquiries of the parties and it was re-sent. I was able to have a look at it before we reconvened. This gave me a very good insight into the case. However, I could find nothing which altered my view. Specifically, I tried to find information which the claimant may have relied upon over any delay in the claim and the amendment; but there was nothing to support her case that she was incapacitated. I was able to see occupational health reports, and I could see the GP report once again dated 18 March 2020. I was able to put the application for the amendment into the perspective of the case as a whole. I could see that the claimant had failed to give particulars of instances of discrimination, whether age or race, when she had been encouraged to do so by the respondent, before proceedings were commenced, including at the stage of the appeal against her dismissal. She refers to matters which may have formed a claim for disability discrimination; but she brings no such claim. On the information before me the claimant is unlikely to satisfy the initial burden of proof upon her in the discrimination claims and they will fail. The real issue in the case is the fairness or otherwise of the dismissal. Clearly the claimant had significant issues in her working relationships and found it very difficult to take simple management instructions and this led to conflicts with a number of colleagues. This is not a strong claim on the face of it, and rather surprisingly the claimant has included in the main hearing bundle documents about advice from her trade union and their solicitors. A trade union representative ventured to suggest that age and ethnicity had nothing to do with matters in hand, and the solicitors would not authorise representation. Instead of clarifying the issues, the way in which the claimant has gone about her application is rather to blur them and distract from the central issues which were discussed with Judge Johnson. I conclude there was serious and avoidable delay by the claimant in making her application to amend. The application is refused, and this is just, fair and proportionate.

[35]I have listened very carefully to what the claimant had to say and I hope she finds that she had a fair hearing, notwithstanding the fact that it has not gone her way. I would round off by saying that I cannot give advice to the claimant but I would encourage her to get some professional independent legal advice urgently from a solicitor or barrister who specialises in employment law and the Equality Act 2010. Even if she does not wish to engage someone for the whole of the case I would urge her to seek, at least, a one off advice from a specialist in this field of law on the strength and value of her case.

[36]After I gave my judgement and reasons, I canvassed with the parties whether any further orders were required for the just disposal of the case; but none were identified. The case has been set up for an ADR hearing, and orders relating to that have been made. There were no further matters arising.