Employment Judge BansalIn person for claimantMr G Graham (instructed by Counsel) for respondentDate 3 September 2024
JUDGMENT
The claimant’s application for amendment to add complaints of discrimination on the grounds of age and disability are refused.
REASONS
[1]This public preliminary hearing was listed at the last case management preliminary hearing held on 5 July 2024 before EJ Wedderspoon. Para 2 of the Case Management Orders made at that hearing, set out the issues to be determined at this hearing, namely;(a) amendment of the claimant’s claim to add disability discrimination and age discrimination(b) whether the claimant’s claim or any allegations should be struck out as having no reasonable prospect of success;(c) whether the claimant should pay a deposit to continue the allegations in her claim where the Tribunal finds that the allegations have little reasonable prospect of success;(d) whether the claimant's complaints of discrimination have been brought in time and whether it is just an external to extend time;(e) further case management orders. Background Facts[2]The claimant was employed by the respondent, a social justice charity, as a Base Administrator from 6 June 2023 until 2 November 2023. Her employment was terminated at the end of the 6-month probationary period as she had not performed to the required standard. Early conciliation started on 21st December 2023 and ended on 27th December 2023. The claimant presented the Claim Form (ET1) on 27th December 2023 making a complaint of unfair dismissal. This complaint was struck out by an Order made by EJ Wedderspoon on 5 July 2024, on the grounds the claimant lacked the 2 years continuous service to bring a complaint for unfair dismissal.[3]In the Claim Form, the claimant stated she “was bullied, victimised, intimidated and harassed by Management, Teachers, Students and other members of staff at Nacro.” Despite this statement, the claimant did not tick the boxes at Para 8.1 to confirm that she was making complaints of discrimination on the grounds of any protected characteristic. Also, she did not tick box at Para 9.1 relating to discrimination. Further at Para 12 she ticked the box confirming she did not have a disability.[4]At the preliminary hearing on 5 July 2024 EJ Wedderspoon, explored with the claimant the complaints she was intending to make. The Judge has recorded in the case summary that the claimant confirmed she was making a complaints of discrimination. In summary the complaints are for age and disability discrimination.[5]The claimant asserts her disabilities to be,(a) anxiety & depression;(b) osteoporosis; and(c) learning disability (this impairment has not been diagnosed)[6]At the date of her termination she was aged 61 years. The claimant confirmed her age group to be 60, and she compares her treatment with younger people.[7]The Judge teased out the particulars of the complaints now being pursued. These are set out in the Complaints and Issues section of the 5 July 2024 Order. (Paras 37 & 38) Essentially, the claimant now seeks to bring complaints of;(i) Direct disability discrimination;(ii) Direct age discrimination;(iii) Failure to make reasonable adjustments;(iv) Harassment related to age; and(v) Harassment related to disability.[8]In response to these complaints, at the hearing, the respondent representative submitted that;(i) the Claim Form does not plead ill treatment or discrimination linked to these protected characteristics, or at all.(ii) the respondent did not know the claimant was disabled and neither could it have knowledge of this;(iii) there is a time issue relating to these complaints.(iv) the claimant should make a formal application to amend her claim.
The Hearing
[9]For today’s hearing I have been presented with a Bundle of Docs of 111 pages, which contains the claimant’s witness statement of 11 pages, and the respondent’s amended Grounds of Resistance submitted in response to the proposed amendment to the claim and an application to strike out the claim and/or a deposit order under r37 of the ET Rules of Procedure 2013.[10]The respondent in their amended Grounds of Resistance object to the amendment application for the following reasons;(i) Time bar. The latest date to present a clam for discrimination was 1/02/2024. The application is made on 5 July 2024, some 5 months later.(ii) No credible explanation has been provided why time should be extended;(iii) The complaints have no prospect of success on their merits.[11]The approach I adopted today, is in accordance with the guidance of the EAT, namely that I first deal with the claimant’s amendment application, and then subject to my determination consider the respondent’s applications for a strike out and/or a deposit order, if necessary. The claimant’s position[12]The claimant provided a witness statement of 11 pages, as her evidence in chief. She was cross examined by Mr Graham and I also asked questions for clarification purposes.[13]In summary the claimant’s position, based on the evidence and representations can be summarised as follows;(a) She completed the Claim Form herself. She did not know she had to complete it fully to include the discrimination claims. She did not think it was important to include the claims;(b) She panicked when completing the Claim Form as she was worried about the time limit to submit her claim.(c) In not ticking the relevant boxes she did not understanding the terminology and did not read the form properly;(d) She got confused, mixed up and did not know what unfair dismissal meant;(e) It did not occur to her until the last hearing held on 5 July 2024 to add the discrimination complaints;(f) The explanation for not filling in the Claim Form correctly to include the discrimination complaints was because of her conditions of anxiety and depression, and learning difficulties, which makes her confused.(g) She became aware of ACAS by doing her research on goggle and talking to others.(h) In cross examination, she conceded that she did not inform the respondent about her disability and the individual impairments;(i) In her view the complaints have been made in time.(j) She was convinced that she was discriminated by her work colleagues because of her disability and age.[14]I enquired with the claimant how she knew about ACAS and the requirement to enter into early conciliation before presenting a claim to the Tribunal. The claimant replied by searching on google and just learning about ACAS.[15]In cross examination, the claimant admitted that in the past, some years ago, she made a claim to the Tribunal, for a claim not relating to discrimination. Mr Graham probed the claimant further about this, in the context of how the claimant acquired knowledge about ACAS, and being familiar how to present a claim to a Tribunal and to complete the form. The claimant changed her evidence asserting that, in fact, she did not issue a claim to the Tribunal as her claim was settled without the need to issue a claim. I find the claimant’s evidence to be inconsistent and confused.[16]I also note the claimant, in her witness statement, has asserted that she has also been discriminated on the grounds of her religion or belief. She confirmed she is a Christian. There is no reference to any complaint based on this protected characteristic having been mentioned at the last hearing. Even in this witness statement this alleged complaint has not been sufficiently pleaded. The amendment application is limited to the complaints of age and disability discrimination. The claimant has not, prior to this hearing made an applicable to add a new complaint based on religion or belief. Therefore, for the avoidance of doubt, the amendment application is in relation to the age and disability complaints only. Respondent’s position[17]Mr Graham for the Respondent submitted as follows;(a) The complaints of age & disability are new complaints. It is not a relabeling exercise;(b) The claimant had no good reason not to include these new complaints in the ET1, when she clearly had ticked the boxes relating to unfair dismissal; Whistleblowing and even confirmed she did not have a disability. She had carefully scrutinised the Claim Form.(c) In terms of the time limit, these complaints are well out of time by some 5 months from the date of presentation of the Claim Form. Also, the alleged incidents relied upon, based on the claimant’s evidence first started at around the start of her employment, which is the date from which the time starts running.(d) The claimant has given no plausible explanation why it would be just and equitable to extend time.(e) The claimant could have made her own enquires on the time limits by searching goggle which she has used to learn about ACAS in the past .(f) On the balance of prejudice, this should be seen in the context of the merits of the complaints. These lack any merit whatsoever. Hence the Respondent should not be put into a position to incur costs to defend complaints which have no merit on the facts. For example, the disability discrimination complaints will fail, simply on the issue of knowledge of her alleged disabilities. The claimant has admitted she did not disclose these disabilities to the respondent and therefore the respondent did not have or could be said ought to have had knowledge.(g) In terms of the age discrimination complaint, it is a bold assertion to make that her alleged treatment was because of her age. She will not be able to establish a causal link. In evidence, the claimant mentioned that Hannah Blackwell treated her as alleged because she exercised her authority as she was a teacher.(h) The attempt to add an additional complaint on the grounds of her religion or belief shows a scattergun approach to this claim.
The applicable law
[18]An Employment Tribunal has jurisdiction to determine the case put before it, not some other case (per Gibson LJ at paragraph 42 of Chapman v Simon [1994] IRLR 124). If a case is not before the Tribunal, it needs to be amended to be added.[19]In Cocking v Sandhurst (Stationers) Ltd and anor [1974] ICR 650 NIRC Sir John Donaldson laid down a general procedure for Tribunals to follow when deciding whether to allow amendments to claim forms involving changing the basis of the claim, or adding or substituting respondents. The key principle was that in exercising their discretion, Tribunals must have regard to all the circumstances, in particular any injustice or hardship which would result from the amendment or a refusal to make it. This test was approved in subsequent cases and restated by the EAT in Selkent Bus Company Ltd v Moore [1996] ICR 836 EAT, which approach was also endorsed by the Court of Appeal in Ali v Office of National Statistics [2005] IRLR 201 CA.[20]The EAT held in Selkent Bus Company Ltd v Moore [1996] ICR 836 EAT: In determining whether to grant an application to amend, the Employment Tribunal must always carry out a careful balancing exercise of all the relevant factors, having regard to the interests of justice and to the relative hardship that would be caused to the parties by granting or refusing the amendment. Mummery J as he then was explained that relevant factors would include:(i) The nature of the proposed amendment - applications to amend range, on the one hand, from the correction of clerical and typing errors, the addition of factual details to existing allegations and the addition or substitution of other labels for facts already pleaded to, on the other hand, the making of entirely new factual allegations which change the basis of the existing claim. The tribunal has to decide whether the amendment sought is one of the minor matters or a substantial alteration pleading a new cause of action; and(ii) The applicability of time limits - if a new claim or cause of action is proposed to be added by way of amendment, it is essential for the tribunal to consider whether that claim or cause of action is out of time and, if so, whether the time limit should be extended; and(iii) The timing and manner of the application - an application should not be refused solely because there has been a delay in making it as amendments may be made at any stage of the proceedings. Delay in making the application is, however, a discretionary factor. It is relevant to consider why the application was not made earlier and why it is now being made: for example, the discovery of new facts or new information appearing from documents disclosed on discovery. These factors are not exhaustive and there may be additional factors to consider, for example, the merits of the claim.[21]The balance of prejudice: per HHJ Tayler in Vaughan v Modality Partnership UKEAT/0147/20/BA(V): [21] “… Representatives have a duty to advance arguments about prejudice on the basis of instructions rather than supposition. They should not allege prejudice that does not really exist. It will often be appropriate to consent to an amendment that causes no real prejudice … [26] a balancing exercise always requires express consideration of both sides of the ledger, both quantitatively and qualitatively. It is not merely a question of the number of factors, but of their relative and cumulative significance in the overall balance of justice. [27] Where the prejudice of allowing an amendment is additional expense, consideration should generally be given as to whether the prejudice can be ameliorated by an award of costs, provided that the other party will be able to meet it. [28] An amendment that would have been avoided had more care been taken when the claim or response was pleaded is an annoyance, unnecessarily taking up limited tribunal time and resulting in additional costs; but while maintenance of discipline in tribunal proceedings and avoiding unnecessary expense are relevant considerations, the key factor remains the balance of justice.”[22]It may be appropriate to consider whether the claim, as amended, has reasonable prospects of success. In Cooper v Chief constable of West Yorkshire Police and anor EAT 0035/06, one of the reasons the EAT gave for upholding the Tribunals decision to refuse the application to amend was that it would have required further factual matters to be investigated “if this knew and implausible case was to get off the ground”. However, Tribunals should proceed with caution because it may not be clear from the pleadings what the merits of the new claim are. The EAT observed in Woodhouse v Hampshire Hospitals NHS Trust 0132/12 there is no point in allowing an amendment to add an utterly hopeless case but otherwise he should be assumed that the case is arguable. This Judgment[23]In determining this application, I have regard to the well-established legal principles as set out above. I am reminded that I should take into account all the circumstances and that I should balance the injustice and hardship of allowing the amendment against the injustice and hardship of refusing it. In this regard, I take particular note of the nature of the amendment, the issue of time limits, the timing of the application and also the merits of the claim.[24]Firstly, dealing with the nature of the amendments sought. The Claim Form makes no mention of complaints for age or disability discrimination. Neither are there any facts pleaded. This amendment is a substantial alteration to the Claim Form. The complaints are wholly new causes of action based on facts not previously pleaded.[25]In terms of the timing and manner of this application, this application has been made 5 months after the date the Claim Form was submitted. The claimant has given no explanation why she delayed to the last preliminary hearing held on 5 July 2024 to make these complaints of discrimination.[26]I reject the claimant’s explanation that(a) she did not know she had to complete the Claim Form in full to include these complaints and that(b) she was unable to complete the Claim Form correctly to include these complaints, because of her learning difficulties and anxiety & depression. The claimant has provided no medical evidence to show that her ability to complete the Claim Form was impaired in any way. Further, I have noted that on 23 November 2023, the claimant provided a detailed appeal statement to her dismissal. Given that she had the ability to prepare this detailed statement there is no reason why she could not have fully pleaded her complaints of discrimination in the Claim Form.[27]In relation to the statutory time limits, I note the allegations of discrimination as recorded by EJ Wedderspoon to have essentially occurred between June 2023 to 16 September 2023. The claimant did not engage with ACAS for early conciliation until 21 December 2023. The claimant has provided no cogent reason why she has delayed in contacting ACAS. In evidence, the claimant explained that she was concerned about the time limit for submitting the Claim Form. Although the claimant was evasive how she became aware of time limits, she confirmed in evidence that she has used goggle for research purposes, and that is how she first became aware of ACAS. I am satisfied there was nothing preventing the claimant from making this amendment application timeously. However, I do take note that any time delay is not a determinative factor to refuse the amendment.[28]In considering the balance of prejudice and hardship, I have taken into account the following matters. The discrimination complaints are entirely new heads of claim. The allegations will require investigation and require the alleged perpetrators and other witnesses to deal with issues which occurred between the period June 2023 to August 2023. This expands the scope of the respondent’s enquiries and investigations. Also given the delay, the witnesses recollection of events may be affected thus affecting the cogency of their evidence. With regard to the merits of the complaint, I am persuaded by Mr Graham’s submissions, as stated in Paragraph 17 (f) and (g) above, that the complaints lack any merit and therefore it would be unjust to make the respondent to incur costs to defend complaints which on the facts as presented are hopeless and have no reasonable prospect of success.[29]Having considered all of the above points, in my judgment allowing the amendment application would cause greater injustice, hardship and prejudice to the respondent, and for these reasons I refuse the claimant’s application to amend her claim.[30]I would also add that had I allowed the amendment application I would have struck out the complaints on the grounds they have no reasonable prospect of success.[31]Accordingly, as there is no other live complaint to determine, the claimant’s claim is dismissed.
The applicable law
[1]The Claimant’s application for amendment to add complaints of age and disability discrimination are refused.[2]As there are no other live complaints to determine this claim is dismissed.