Mr C Thain v Devon and Somerset Fire and Rescue Authority: 1401677/2017
EMPLOYMENT TRIBUNALS
Case No 1401677/2017Venue ExeterHearing 30 November 2018
Between
Mr C ThainClaimantDevon and Somerset Fire and Rescue AuthorityRespondent
Before
Employment Judge N J RoperMiss D Grennan (instructed by Counsel) for claimantMr J Mitchell (instructed by Counsel) for respondentDate 4 December 2018
JUDGMENT
ON APPLICATION TO AMEND The claimant’s application to amend the originating application is granted but only to the extent explained in this Judgment.
REASONS
[1]In this case the claimant seeks leave to amend the claim which is currently before the Tribunal, and the respondent opposes that application. I have heard from Mr M Pearson, who gave evidence on behalf of the respondent, and I have also heard detailed factual and legal submissions from Counsel on behalf of the respective parties.[2]The claim as it currently stands:[3]The general background and procedural history of the claim as it stands before the determination of this application is as follows.[4]The following allegations are made by the claimant in his original particulars of claim: The claimant commenced employment with the respondent on 17 October 2011 as a Business Development Manager. In 2010 the respondent incorporated a wholly owned subsidiary known as Red One Ltd (“ROL”). The purpose of ROL was to be a commercially successful trading arm of the respondent and to sell its expertise, and in particular its training services. This venture did prove commercially successful. The respondent Fire & Rescue Authority was the sole shareholder and Ms Sherlock, a director of the respondent, was appointed as CEO and company secretary of ROL. The claimant was appointed as a Director of ROL in September 2013 with responsibility for business development. At all times the claimant remained an employee of the respondent. In 2016 Mr Healey, Mr Woodman and Mr Thomas (whom the claimant suggests were the chairman and two members of the respondent) were appointed as non-executive directors of ROL. The claimant suggests that shortly thereafter concerns were raised at the Board of ROL about a potential conflict of interest on the part of Mr Healey. On 16 August 2016 the claimant emailed Ms Sherlock complaining about the actions and behaviour of Mr Healey. On 24 January 2017 the claimant raised a formal grievance about the conduct of Mr Thomas and Mr Healey. On the following day the claimant was suspended pending investigation into alleged financial impropriety. On 19 May 2017 the claimant was notified that the investigation into his alleged misconduct had found no wrongdoing and he was invited to return to work. Within a week on 25 May 2017 he was given formal notice of the termination of his employment by reason of redundancy.[5]The claimant initially had advice and support from his trade union, but then instructed solicitors to issue proceedings on his behalf. On 19 December 2017 through his solicitors the claimant issued these proceedings, originally naming two respondents, namely the current respondent, and ROL. Owing to a computer glitch, the claimant’s particulars of claim were not included with the claim form, but were forwarded by email immediately afterwards. On 29 December 2017 the claim against ROL was rejected because the claimant did not have a valid ACAS Early Conciliation Certificate against ROL. On 8 January 2018 Employment Judge Livesey accepted the late particulars of claim on the basis that they were “an amendment to the claim” which had not originally included them. The respondent refers to the addition of these original particulars of claim as being Amendment 1. There was no attempt by the claimant to seek reconsideration of the decision to reject the claim against ROL, and the claim therefore proceeded as against the current respondent only.[6]The respondent filed its notice of appearance and grounds of resistance within time. The respondent denies the claims. Inter alia, it asserted that the claimant’s secondment was brought to an end in April 2017 by Mr Martin Thomas, who at that time was the Managing Director of ROL, and that there was a genuine redundancy.[7]There was then a case management preliminary hearing by telephone before me on 1 March 2018. The claimant’s solicitor submitted a written agenda prior to that hearing which confirmed on behalf of the claimant the following points: that ROL was not a respondent to the claimant’s claims and (to the extent that it was necessary) should be removed as a respondent; that the claims brought by the claimant were for unfair dismissal arising from the alleged redundancy, both substantively and procedurally, and for “automatically” unfair dismissal for having made a protected disclosure (in the singular); and whether the claimant had been subjected to a detriment (again in the singular) following that one protected disclosure. The claimant was represented by his solicitor at the case management preliminary hearing at which the issues to be determined by the Tribunal were agreed by the parties. I then set out those issues in a written case management order dated 1 March 2018 (“the Order”) which was sent to the parties on 9 March 2018. The Order was made by consent and there was no application for reconsideration and no appeal.[8]The issues which were agreed as those which the Tribunal had to be determine were these: “general” unfair dismissal relating to the redundancy, both substantively and procedurally, by reference to sections 98(4) and 139 of the Employment Rights Act 1996 (“the Act”); “automatically” unfair dismissal following a protected public interest disclosure under section 103A of the Act; and for having suffered detriment following a protected public interest disclosure under section 47B of the Act. The claimant made it clear through his solicitor that he relied on one public interest disclosure, namely his email to Ms Sherlock dated 16 August 2016. In addition, the claim was limited by consent to one complaint of detriment, namely that “he was suspended during a sham disciplinary investigation into financial impropriety before being exonerated some months later.”[9]One of the case management orders made at that preliminary hearing was that the claimant should provide further information as to the one alleged protected public interest disclosure relied upon, by setting out(a) what information was disclosed;(b) the exact statutory provision relied upon;(c) what breach or likely breach of the respondent’s obligations is alleged to have been raised;(d) why it was said to be reasonable for the claimant to believe such a breach; and(e) how was such a disclosure in the public interest. The claimant’s solicitor complied with that order on 22 March 2017 by way of a written schedule which gave that further information by reference to the one alleged disclosure (namely the email to Ms Sherlock dated 16 August 2016). The respondent refers to this as Amendment 2.[10]The matter was listed by consent for hearing for five days in the Exeter Employment Tribunal in June 2018 and case management orders were made to ensure the case was fully prepared for that hearing. Although there was some delay between the parties in agreeing the relevant trial bundle, this was agreed and written witness statements were prepared. This was on the basis of the agreed issues as set out above. It seems that the parties might have been considering a joint application to postpone the hearing, but in any event the hearing was postponed because of a lack of judicial resource.[11]Meanwhile on about 26 April 2018 following a conference with Counsel, the claimant served a document which the respondent now refers to as Amendment 3, and which was a schedule which introduced amendments to the earlier schedule of further information (which had already been served in compliance with the case management order). It was claimed on behalf of the claimant that this was to give “a little more detail of the whistleblowing breaches”. It still only referred to the one protected public interest disclosure (which interestingly for the first time was referred to as protected disclosure 1), but which also introduced new grounds for alleged breaches of legal obligations, including directors’ responsibilities and breach of the Companies Act 2006. A number of these suggested amendments made substantial changes to the alleged beliefs of the claimant. In addition, the claimant’s solicitor had forwarded an attached “List of Detriments” without any additional explanation or request to amend the claim. This List of Detriments listed 12 alleged detriments which included (as number 6) “suspension from employment”, which had previously been agreed as the only detriment upon which the claimant relied.[12]By email dated 10 May 2018 the claimant’s solicitor wrote to the respondent’s solicitor to notify the respondent that the claimant wished to amend the claim in accordance with the documents attached to that email. The respondent refers to this as Amendment 4, because the schedule attached was amended to include (for the first time) reliance upon a second protected public interest disclosure, namely the grievance which the claimant had lodged on 24 January 2017.[13]The respondent rejected the claimant’s attempt to amend the claim in that way, and on 17 May 2018 the claimant made its current application to amend (which the respondent refers to as Amendment 5) and which now attached a fourth version of the schedule of further information, as well as the List of Detriments (running to 12 detriments rather than the originally agreed one detriment). The respondent opposes that application.[14]The nature and detail of the application to amend:[15]The current application to amend which is before me is therefore as follows. It is an application to amend the claim and the agreed list of issues from reliance upon one public interest disclosure and one detriment, to the fourth version of the schedule of further information (which gives the second protected public interest disclosure relied upon) and the List of Detriments running to 12 detriments rather than the one agreed detriment.[16]The respondent objects to the application to amend to include the second protected public interest disclosure because it is said not to be further particulars of the same claim, but rather is said to be a mechanism or route to raise a new set of serious substantive allegations, including serious allegations against ROL which is not a party to these proceedings. This is because the schedule which includes the alleged second protected public disclosure (the grievance dated 24 January 2017) is said to include three different classifications of information. These are as follows, with the respondent’s objections to each of them:[17]The first is that there was an assertion of bullying and aggressive treatment by Martin Thomas between 24 November 2016 and 4 January 2017. The respondent objects because even allowing for the initial three month time limit, this allegation is 695 days old. It also asserts that on one occasion Mr Thomas was acting on the authority of the respondent. This allegation is undated and is said to have been instigated by someone (Mr Thomas) who has no legal relationship with the respondent. The respondent complains in effect that the claimant is now seeking to address an obvious weakness in his claim and to blame the respondent for the alleged actions of Mr Thomas with whom it has no relationship and over which it had no control.[18]The second allegation is that between the same dates Mr Healey “orchestrated implemented and facilitated with Councillor John Woodman through Martin Thomas a campaign of harassment bullying and intimidation …” The third allegation is exactly the same, save that it alleges that it was Councillor John Woodman who orchestrated the complaint. The respondent complains that simply cannot address any such allegations which the first time involve people not previously identified in this respect some 695 days after the event.[19]Turning now to the proposed additions/amendments to the List of Detriments, they are as follows. Detriment 1 is “taking steps to ensure the departure of Tony Rowe as chair of ROL (which removed any remaining protection the claimant may have had …)” The respondent comments that this is not a detriment and is unconnected to the claimant, and the allegation is too vague because it is not clear who, how, or when the alleged detriment took place. Given that the claimant had stated that Mr Rowe resigned on 31 October 2016 this must predate the second public interest disclosure and as at today’s date (even allowing for the initial three month time limit) is 669 days after the time limit for issuing proceedings expired in this respect.[20]Detriment 2 is “Bullying and intimidating behaviour by Martin Thomas at service HQ on 24 November 2016 …” The respondent comments that Mr Thomas was not an employee, agent or worker of the respondent and that it cannot be responsible for his actions, nor indeed have any way of knowing the reasons for any of his actions. In addition, allowing for the normal three month time limit, this allegation is 645 days out of time.[21]Detriment 3 is: “Ultimatum given to the claimant in late 2016 to resign as a director of ROL or be removed.” The respondent’s comments are that no ultimatum has ever been pleaded by the claimant in his claim, no one is named in this allegation and the respondent cannot possibly therefore meet any such allegation, and even allowing for the normal three month time limit this allegation is 618 days out of time.[22]Detriment 4 relates to threats made to the claimant by Martin Thomas in January 2017 that if he returned to work and did not leave his employment voluntarily he would be suspended and investigated. The respondent comments again that Martin Thomas was never an employee agent or worker of the respondent, no information is given as to what threats were made, or when, or how, and in any event any such vague threats could not have been the responsibility of the respondent. The claimant had the opportunity to bring proceedings against Mr Thomas personally, or against ROL, given that Mr Thomas was a director of ROL. He failed to do so. In addition, even allowing for the expiry of the three month time limit, this amendment is 579 days out of time.[23]Detriment 5 is: “Efforts by Martin Thomas (prompted by other NEDs of ROL) to specifically search for any reason whatsoever to suspend/discipline/dismiss the claimant and/or fabricate allegations against him.” Again, the respondent comments that Mr Thomas was never an employee, agent or worker of the respondent, and fails to mention any details as to which other unnamed individuals might have been responsible. The allegation of fabricating evidence is a serious allegation and the respondent cannot be expected to answer allegations alleged to have been done by Mr Thomas or unnamed others.[24]Detriment 6 relates to the claimant’s suspension which is the previously noted single detriment relied upon, and which does not therefore require amendment to be included.[25]Detriment 7 is “Being subjected to disciplinary investigation (notified to the claimant in a letter dated 25 January 2017)”. The respondent comments at this is a vague rehash of the Detriment 6 because the claimant was aware of the disciplinary investigation on the date of his suspension, and this detriment appears to relate to being “subject” to a disciplinary investigation. It does not seek to attack the rationale for his suspension, and does not say who is responsible. Even allowing for the three month time limit this allegation is now 585 days out of time.[26]Detriment 8 is: “Failure to complete the investigatory process, to inform the claimant of the report’s outcome and/or to end the suspension/investigation stage of the process within a reasonable timescale.” The respondent comments that it is not clear which investigatory process is being complained about (the grievance investigation or the misconduct investigation), but it is assumed that it relates to the misconduct investigation because it refers to the claimant’s suspension. This was concluded on 19 May 2017, and even allowing for the normal three month time limit this is now 469 days out of time. This allegation does not suggest that any delay was because of a prescribed reason, and in any event the allegations were found to have been “not proven”.[27]Detriment 9 is: Deliberately restructuring ROL with the specific aim of making the claimant’s position redundant as a means of terminating his employment.” The claimant comments that the restructuring of ROL is a decision of the board of ROL and not the respondent. The respondent is the shareholder of ROL, but its restructuring was not a decision which the shareholders could or did take, it was a decision taken by the board of ROL. The respondent cannot be responsible for the actions of the board of ROL. In any event the claimant fails to identify who in the respondent is alleged to be responsible and given that the dismissal of the claimant occurred on 26 May 2017 any alleged restructuring decision must have been taken before this date. Even allowing for the three months normal time limit this amendment is 462 days out of time.[28]Detriment 10 is: “Deliberately putting information before the decisionmakers (in respect of the claimant’s dismissal) which would lead to the aim of ensuring his dismissal being achieved.” The respondent comments at this allegation is wholly unclear. The respondent cannot tell who it is alleged to have done this act. Given that this decision must have been taken before the claimant’s dismissal it must have occurred before 26 May 2017. Even allowing for the normal three month time limit this allegation is now 462 days out of time.[29]Detriment 11 is: “Failure to adopt a fair or impartial process at either consultation, dismissal or appeal stages.” The respondent accepts that these elements are already in the claimant’s current claim and the respondent is in a position to address these matters concerning the claimant’s dismissal.[30]Detriment 12 is: “Failure to deal with the claimant’s grievances (against Mark Healey, John Woodman and Mark Thomas) fairly or impartially.” The respondent comments that Mr Healey is not an employee of the respondent. Although he was a councillor, in that capacity he was an elected officer of the respondent but he was not a member of their staff. In any event the complaint relates to his actions in his capacity as a director of ROL. Similarly, Mr Woodman is not named in the particulars of claim. He too was a councillor but again that was in his capacity as an elected officer of the respondent and he was never a member of staff. Mark Thomas as named presumably means Mr Martin Thomas and for the reasons set out above the respondent suggests that it is not responsible for his actions.[31]The applicable law:[32]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.[33]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.[34]In Transport and General Workers’ Union v Safeway Stores Limited EAT 0092/07 Underhill P as he then was overturned a Tribunal’s refusal to allow an amendment because there was no attempt to apply the Cocking test, and, specifically, no review of all the circumstances including the relative balance of injustice.[35]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:36. 1 - 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; and37. 2 - 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; and38. 3 - 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.[39]These factors are not exhaustive and there may be additional factors to consider, (for example, 4 - The merits of the claim). The more detailed position with regard to each of these elements is as follows, dealing with each of them in turn: 40. 1 - The nature of the proposed amendment: A distinction may be drawn between(i) amendments which are merely designed to alter the basis of an existing claim, but without attempting to raise a new distinct head of complaint;(ii) amendments which add or substitute a new cause of action but one which is linked to, or arises out of the same facts as, the original claim (often called “relabelling”); and(iii) amendments which add or substitute a wholly new claim or cause of action which is not connected to the original claim at all.[41]Mummery J in Selkent suggests that this aspect should be considered first (before any time limitation issues are brought into the equation) because it is only necessary to consider the question of time limits where the proposed amendment in effect seeks to adduce a new complaint, as distinct from “relabelling” the existing claim. If it is a purely relabelling exercise than it does not matter whether the amendment is brought within the timeframe for that particular claim or not – see Foxtons Ltd v Ruwiel UKEAT/0056/08. Nevertheless whatever type of amendment is proposed the core test is the same: namely reviewing all the circumstances including the relative balance of injustice in deciding whether or not to allow the amendment (that is the Cocking test as restated in Selkent).[42]The fact that there is a new cause of action does not of itself weigh heavily against amendment. The Court of Appeal stressed in Abercrombie and ors v Aga Rangemaster Ltd 2013 IRLR 953 CA that Tribunals should, when considering applications to amend that arguably raise new causes of action, focus “not on questions of formal classification but on the extent to which the new pleading is likely to involve substantially different areas of enquiry than the old: the greater the difference between the factual and legal issues raised by the new claim and by the old, the less likely it is that it will be permitted”.[43]Any mislabelling of the relief sought is not usually fatal to a claim. Where the effect of the proposed amendment is simply to put a different legal label on facts that are already pleaded, permission will normally be granted.44. 2 - The applicability of time limits: This factor only applies where the proposed amendment raises what effectively is a brand new cause of action (whether or not it arises out of the same facts as the original claim). Where the amendment is simply changing the basis of, or “relabelling”, the existing claim, it raises no question of time limitation – (see for example Foxtons Ltd v Ruwiel UKEAT/0056/08 per Elias P at para 13).45. 3 - The timing and manner of the application: This effectively concerns the extent to which the applicant has delayed making the application to amend. Delay may count against the applicant because the Overriding Objective requires, among other matters, that cases are dealt with expeditiously and in a way which saves expense. Undue delay may well be inconsistent with these objectives. The later the application is made, the greater the risk of the balance of hardship being in favour of rejecting the amendment - see Martin v Microgen Wealth Management Systems Ltd EAT 0505/06. However, an application to amend should not be refused solely because there has been a delay in making it, as amendments may properly be made at any stage of the proceedings. This is confirmed in the Presidential Guidance on General Case Management for England and Wales (13 March 2014).[46]The EAT gave guidance on how to take into account the timing and manner of the application in the balancing exercise in Ladbrokes Racing Ltd v Traynor EATS 0067/06: the Tribunal will need to consider:(i) why the application is made at the stage at which it is made, and why it was not made earlier;(ii) whether, if the amendment is allowed, delay will ensue and whether there are likely to be additional costs because of the delay or because of the extent to which the hearing will be lengthened if the new issue is allowed to be raised, particularly if these are unlikely to be recovered by the party that incurs them; and(iii) whether delay may have put the other party in a position where evidence relevant to the new issue is no longer available or is rendered of lesser quality than it would have been earlier. 47. 4 - The Merits of the Claim: 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 Tribunal’s decision to refuse the application to amend was that it would have required further factual matters to be investigated “if this new and implausible case was to get off the ground”. 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 EAT 0132/12 that there is no point in allowing an amendment to add an utterly hopeless case, but otherwise it should be assumed that the case is arguable.[48]Langstaff P made the following observations in Chandhok v Turkey [2015] IRLR 195 EAT from paragraph 16: “The claim, as set out in the ET1, is not something to set the ball rolling, as an initial document necessary to comply with time limits but which is otherwise free to be augmented by whatever the parties choose to add or subtract merely upon their say so. Instead, it serves not only a useful but a necessary function. It sets out the essential case. It is that to which a respondent is required to respond. A respondent is not required to answer a witness statement, nor a document, but the claims made – meaning … the claim as set out in the ET1. [17] … If a claim or a case is to be understood as being far wider than that which is set out in the ET1 or ET3, it would be open to a litigant after the expiry of any relevant time limit to assert that the case now put had all along been made, because it was “their case”, and in order to argue that the time limit had no application to that case could point to other documents or statements, not contained within the claim form. Such an approach defeats the purpose of permitting or denying amendment; it allows issues to be based on shifting sands; it ultimately denies that which clear-headed justice most needs, which is focus. It is an enemy of identifying, and in light of the identification resolving, the central issues in dispute. [18] In summary, a system of justice involves more than allowing parties at any time to raise the case which best seems to suit the moment from their perspective. It requires each party to know in essence what the other is saying, so they can properly meet it; so that they can tell if a tribunal may have lost jurisdiction on time ground; so that the costs incurred can be kept to those which are proportionate; so that the time needed for a case, and the expenditure which goes hand-in-hand with it, can be provided for both by the parties and by the tribunal itself, and enable care to be taken that any one case does not deprive others of their fair share of the resources of the system. It should provide for focus on the central issues. That is why there is a system of claim and response, and why an employment tribunal should take very great care not to be diverting into thinking that the essential case is to be found elsewhere than in the pleadings.”
Judgment:
[50]Applying these legal principles above to the current application, I find as follows.[51]With regard to the nature of the application, the claimant asserts that this is a category(i) claim because there are already valid claims under section 103A and section 47B of the Act. The application adds one more protected disclosure to the existing claims, as well as other detriments said to arise under section 47B. Alternatively, the claimant asserts that this is a category(ii) case because it is clearly linked to and arises out of facts already pleaded. I agree to this extent, that it is not a category(iii) claim because the proposed amendments do not add or substitute a wholly new claim or cause of action which is not connected to the original claim at all. This means that the amendment raises no question of time limitation (see for example Foxtons Ltd v Ruwiel), (other than subsequently when this is a factor to weigh in the balance of injustice and prejudice to the extent that many of the new detriment claims are nearly two years old).[52]On balance I find that this is a category(i) claim. The proposed amendments seek to add another alleged protected public interest disclosure and a number of new allegations of detriment when there are existing valid claims under both section 103A and section 47B of the Act. There is been no need to “relabel” these existing claims. I do not consider that the proposed amendments amount to a category(ii) type of amendment.[53]As for the timing and manner of the application, the final application to amend was made some two months after the preliminary hearing at which the issues had been discussed in detail and expressly agreed by both parties. It seeks to unravel that position. The respondent is clearly irritated by this development, because the whole point of expending time, costs and judicial input on case management preliminary hearings is to focus on and agree the issues in respect of which the parties must then prepare for hearing. The claimant effectively seeks to reopen that combined effort. The application was also made approximately six weeks before the date originally listed for hearing, although that hearing date was lost through no fault of either party.[54]In the first place, with regard to the application to amend and to include the second alleged public interest disclosure, this refers to the written grievance lodged on 24 January 2017. Reference to this grievance was always included in the claimant’s originating claim.[55]Paragraph 17 of his original amended particulars of claim record: “On 24 January 2017 the claimant raised a formal grievance about the conduct of Mr Thomas and Mr Healey. The day after on 25 January 2017 the claimant was suspended by the respondent from his employment pending investigation into alleged financial mishandling by the claimant.” Given the existing claims of unfair dismissal under both section 98(4) and section 103A of the Act, the respondent was always in the position of having to explain its actions with regard to the claimant’s suspension the day after the submission of this grievance. Given the short space of time between these two events, the respondent was always in a position of having to address its motivations for the suspension of the claimant. Weighing possible injustice and prejudice to each party in the balance, in my judgment it is in the interests of justice to allow the claimant to amend his claim to include reliance upon the second public interest disclosure.[56]In my judgment the respondent does not have to prove or disprove the three sets of late allegations which are said to be the information contained in the grievance. What is contained in that grievance is a matter of fact, and it would always have been a relevant document in the agreed trial bundle. It either makes the factual allegations said to be “information” for the purposes of section 43 of the Act, or it does not. The Tribunal hearing the case will ultimately decide that point. The respondent does not have to adduce evidence to rebut or disprove what actually happened in that respect and it is at liberty to cross examine the claimant when he gives his evidence as to whether it was a protected public interest disclosure or not. For these reasons I allow the amendment contained in what is referred to by the respondent as effectively Amendment 5, being the latest “Amended Schedule of Protected Disclosures”. This is the schedule to which the parties should now work by way of further preparation towards the full main hearing.[57]The position with regard to the alleged detriments is in my judgment entirely different, because the respondent will find itself having to rebut and disprove all of the additional alleged detriments upon which the claimant now seeks to rely. To the extent that any action was taken by employees or representatives of the respondent, the respondent will have to adduce further evidence of the actions and motivations of those people. To the extent that any action was said to have been taken by anyone not in the employment or under the control of the respondent, (for instance Mr Thomas), this respondent is not in a position to deal with those allegations. In addition, not only do these new allegations relate to events over 18 months ago, the extra evidence required to deal with them will extend the agreed five day time estimate for trial substantially. This will mean that the agreed full main hearing in May 2019 will have to be postponed, and is likely to be at least another six months if not a year or so before a longer trial fixture is available. This could well mean that the eventual hearing of this claim will be delayed until between two and two and a half years after the events in question. This extra delay is not in the interests of justice, and is not in accordance with the Overriding Objective, which applies not only to the parties in this claim, but also other litigants and the Tribunal service generally. The Overriding Objective requires, among other matters, that cases are dealt with expeditiously and in a way which saves expense. Undue delay is likely to be inconsistent with these objectives.[58]In any event, there is a more serious issue raised by the respondent, which is that the claimant is seeking to lay at its door his concerns and complaints about the actions of ROL, which has always been a separate legal entity. As a director and an employee on secondment to ROL (and arguably a worker of ROL) the claimant was always in a position to pursue his claims against ROL. He initially did so, but when his claim against ROL was rejected, he did not seek reconsideration of the rejection of his claims as against ROL. It is a commercially successful company and has the wherewithal to meet any such claims on its own account. The respondent objects to the claimant seeking to remedy this oversight by way of an application to amend almost a year after he first issued proceedings.[59]For these reasons I do not allow the claimant’s application to amend the List of Detriments relied upon, other than to include detriment numbered 11 because this is always something which the respondent had to address in the normal course of the claim. The claimant’s pleaded case was always that “his suspension was as a direct result of his complaint about Mr Thomas and his challenges to Mr Healey”. He is still in a position to pursue that detriment claim, and to challenge the reasons for and underlying alleged unfairness of the decision to dismiss him. Refusing to allow the claimant to amend and to extend considerably the scope of his detriments will, on balance, cause less injustice, hardship and potential prejudice to the claimant than it will to the respondent. This is because the respondent faces the following difficulties with regard to having to respond to the remaining 10 alleged detriments (which in addition are allegations arising over 18 months ago):[60]Detriment 1 and the removal of Mr Rowe as chair of ROL does not appear to be a detriment to the claimant and seems to be unconnected to the claimant. The allegation is too vague because it is not clear who, how, or when the alleged detriment took place.[61]Detriment 2 relates to the actions of Mr Thomas, who was not an employee, agent or worker of the respondent. As such it could not be responsible for his actions, nor indeed had any way of knowing the reasons for any of his actions[62]Detriment 3 relates to an ultimatum which does not appear to have been previously pleaded by the claimant in his claim, and no one is named as responsible for this allegation, and the respondent cannot therefore meet any such allegation.[63]Detriment 4 relates to threats allegedly made to the claimant by Martin Thomas who was never an employee, agent or worker of the respondent. No information is to given as to what threats were made, or when, or how, and in any event any such vague threats could not have been the responsibility of the respondent.[64]Similarly, Detriment 5 relates to further action on the part of Martin Thomas who was never an employee agent or worker of the respondent, and the allegation fails to mention any details of which other unnamed individuals might have been responsible. The allegation of fabricating evidence is a serious allegation and the respondent cannot be expected to answer allegations alleged to have been done by Mr Thomas or unnamed others.[65]I agree that Detriment 7 is a vague attempt at extension of Detriment 6, which the claimant can pursue, and which does not really take us any further. The claimant was aware of the disciplinary investigation on the date of his suspension, and this detriment appears to relate to being “subject” to a disciplinary investigation. It does not seek to attack the rationale for his suspension, and does not say who is responsible. It seems to add nothing to Detriments 6 and 11 which are allowed to proceed.[66]In Detriment 8 it is not clear which investigatory process is being complained about, and does not suggest that any delay was because of a prescribed reason. In any event the allegations were found to have been “not proven”.[67]Detriment 9 relates to the restructuring of ROL which is a decision of the Board of ROL and not the respondent. The respondent is the shareholder of ROL, but its restructuring was not a decision which the shareholders could or did take, it was a decision taken by the board of ROL. The respondent cannot be responsible for the actions of the board of ROL. In any event the claimant fails to identify who in the respondent is alleged to be responsible.[68]Detriment 10 is “Deliberately putting information before the decision-makers (in respect of the claimant’s dismissal) which would lead to the aim of ensuring his dismissal being achieved.” This allegation is wholly unclear. The respondent cannot tell who it is alleged to have done this act.[69]Finally, Detriment 12 relates to an alleged failure to deal with the claimant’s grievances (and complains against Mark Healey, John Woodman and Mark Thomas) fairly or impartially.” The complaint relates to Mr Healey’s actions in his capacity as a director of ROL. Mr Woodman is not named in the particulars of claim. He too was a councillor but again that was in his capacity as an elected officer of the respondent and he was never a member of staff. Mark Thomas as named presumably means Mr Martin Thomas and the respondent suggests that it is not responsible for his actions.[70]For all of these reasons in my judgment weighing the relative injustice hardship and prejudice between the parties, it is not in the interests of justice to allow the claimant to extend the scope of his current claim to include any of the new detriments in the amended List of Detriments, except those numbered 6 and 11 (which the respondent always had to meet, and remains in a position to do so).[71]The claimant is therefore limited to relying on detriments 6 and 11 only in the List of Detriments at the forthcoming full main hearing, which remains listed for five days as already notified.