Mrs S Metcalfe v North Wales Women's Centre: 1601108/2020
EMPLOYMENT TRIBUNALS
Case No 1601108/2020
Between
Mrs S MetcalfeClaimantNorth Wales Women's CentreRespondent
Before
Employment Judge S JenkinsIn person for claimantMs S Clarke (instructed by Counsel) for respondentDate 29 June 2020
JUDGMENT
The Claimant’s applications to amend her claim in the following manners:• to confirm that the claim of unfair dismissal relates to an actual dismissal rather than a constructive dismissal;• to confirm that her claims of disability discrimination relate to all of sections 13, 15, 19, 20/21, 26 and 27 of the Equality Act 2010;• to confirm that she is also pursuing claims of direct and indirect disability discrimination by association; are granted.
REASONS
[1]The preliminary hearing was scheduled to identify the claims and issues in this case and to make case management orders, which have been addressed in a separate document. I also however considered an application by the Claimant to amend her claim set out in an attachment to an email she submitted on 18 June 2020. As this was a preliminary hearing, I only heard submissions from the parties and heard no evidence, and therefore made no formal findings.[2]The Claimant had submitted her original claim form on 23 April 2020, pursuing claims of unfair dismissal, which she described as constructive Page 1 of 6 dismissal, and disability discrimination. The Claimant had taken no advice at the time she submitted that claim. In her claim form, the Claimant briefly summarised the factual background to her claims which revolve around her contention that she suffers from migraines, particularly due to her sensitivity to light, and exacerbated by the fact that she is unable to take medication as she is in the process of donating one of her kidneys to her daughter. The Claimant contends that she was allowed to use lamps in the latter part of 2019 instead of the main office lighting, but that, on return to the office in January 2020, the main office lighting was switched back on. She then contended that a concern she raised was treated as a grievance, which was not upheld, but was then upheld on appeal in February 2020, and that she was subsequently issued with a notice of termination.[3]In the claim form the Claimant ticked the boxes to indicate that she was pursuing claims of unfair dismissal and disability discrimination and she concluded the details of her claim by saying that, “I therefore wish to claim discrimination against myself and my daughter and constructive dismissal due to NWWC management neglecting their responsibility for the health of its employees”.[4]The Respondent’s ET3 response was submitted on 22 May 2020. In that, the Respondent engaged with the factual background to the Claimant's claims, indicating that her employment ended at the end of March 2020, by reason of redundancy, or in the alternative, by reason of some other substantial reason, following the expiry of her extended fixed term contract on that date. With regard to discrimination, the Respondent noted that the Claimant had failed to particularise her claims sufficiently, such that they could not be properly understood or meaningfully responded to, and that it reserved the right to amend its response upon receipt of further information. The Respondent also noted that the Claimant could not pursue a claim on the basis that her daughter had been discriminated against.[5]During the hearing, the Claimant confirmed that she had received a copy of the Respondent's response from the Tribunal on Friday 12 June 2020, that she took advice on 16 June 2020, although she remains a litigant in person, and submitted the application to amend on 18 June 2020.[6]That application seeks to clarify that the Claimant is pursuing claims of unfair dismissal, disability discrimination and disability discrimination by association. In relation to the unfair dismissal claim, the application to amend seeks to clarify that the Claimant’s actual dismissal by reason of redundancy was unfair. With regard to claims of discrimination, the Claimant summarises the treatment about which she is complaining in seven separate areas, which she then contends give rise to her claims of direct discrimination (section 13 Equality Act 2010 (“EqA”)), discrimination arising from disability (section 15 EqA), indirect discrimination (section 19 EqA), failure to make reasonable adjustments (sections 20/21 EqA), harassment (section 26 EqA) and victimisation (Section 27 EqA). Page 2 of 6[7]During the hearing, the Claimant confirmed that the claims of indirect discrimination and failure to make reasonable adjustments relate to the alleged requirement that fluorescent lighting be used, which is contended to be the “provision, criterion or practice” or “physical feature”. They, and the other elements, were all said to amount to less favourable treatment, unfavourable treatment, unwanted conduct and/or detriment for the purposes of the other claims.[8]Also during the hearing, the Claimant clarified that the protected act she contends was made in relation to her victimisation claim, was a complaint she made to the Respondent’s Managing Director on 7 January 2020, about the reinstatement of fluorescent lighting, which she contends she raised by indicating that the Respondent was failing to comply with its duty to make reasonable adjustments.[9]With regard to the claim of disability discrimination by association, the Claimant confirmed that she contended that the imposition of fluorescent lighting and her dismissal amounted to associative discrimination, relating to the fact that she was due to be a living kidney donor for her daughter and was required not to take medication whilst waiting for that to take place.[10]In relation to the fact that she was now seeking to amend her claim, the Claimant explained that the space to make reference to her claims in her original claim form had been limited, that she had sought advice as soon as she had seen the Respondent's response, in which it complained of the lack of particularisation of her claims, and she had then submitted her application to amend with the proposed amended wording within a matter of days.[11]The Respondent accepted that claims under sections 15, 19 and 20/21 EqA were able to be discerned from the original claim form and therefore there was no issue in accepting the amendment application to clarify that those claims were being pursued. Whilst the clarification of the unfair dismissal claim was not canvassed during the hearing, I have proceeded on the presumption that the Respondent had no objection to that as well.[12]The Respondent contended however, that claims under sections 13, 26 and 27 EqA were not able to be discerned within the original claim form, and that therefore they could only be accepted following consideration of an application to amend. The Respondent objected to those amendments on the basis that that the applications had not been made within the original time limits when they could have been, and that the Respondent would suffer prejudice in having to face three additional types of discrimination claim.[13]The only other background matters for me to record relate to time limits and ACAS early conciliation. I was conscious that applications to amend are to be considered, and, if granted become effective, from the date on Page 3 of 6 which they are made, in this case 18 June 2020. I also noted that ACAS early conciliation commenced on 4 March 2020, which was “Day A” for the purposes of the time-extending provisions of section 207B of the Employment Rights Act 1996 (“ERA”). The early conciliation certificate was then issued on 18 April 2020, which was Day B for the purposes of section 207B ERA. A period of 45 days was therefore taken up with early conciliation.[14]Applying the extension provisions set out in section 207B ERA, that left two potential bases of analysis. One, that provided for by subsection 207B(4), where the time limit would be one month after Day B, would cover matters as far back as three months less one day before Day A which would cover matters arising after 5 December 2019, albeit that, to be in time, the application to amend would have had to have been submitted within one month of Day B, i.e. by 18 May 2020. The other, that set out in subsection 207B(3), which discounted the 45-day period between Day A and Day B, would cover matters back as far as 3 February 2020, by reference to the date on which the application to amend was made, i.e. 18 June 2020. Issues and Law[15]The principal guidance relating to applications to amend is found in the cases of Cocking v Sandhurst (Stationers) Ltd [1974] ICR 650 and Selkent Bus Company Ltd v Moore [1996] ICR 836. I was also mindful of the Presidential Guidance Note 1 on Case Management dealing with applications to amend.[16]The guidance provided by Cocking is that the key principle when considering the exercise of the discretion to allow an amendment is to have regard to all the circumstances, and in particular any injustice or hardship which would result from the amendment or refusal to amend.[17]In Selkent, the Employment Appeal Tribunal set out a non-exhaustive list of relevant factors which are to be taken into account in considering the balancing exercise of all the relevant factors, having regard to the interests of justice and the relative hardship that would be caused to the parties by the granting or refusing of the amendment. These were; the nature of the amendment, the applicability of time limits, and the timing and manner of the application.[18]The Presidential Guidance reaffirms the Cocking and Selkent guidance, noting that relevant factors include the three matters outlined in Selkent, and also noting that tribunals draw a distinction between amendments which seek to add or substitute a new claim arising out of the same facts as the original claim, and those which add a new claim entirely unconnected with the original claim.[19]With regard to time limits, the Presidential Guidance notes that the fact that the relevant time limit for presenting the new claim has expired will not Page 4 of 6 exclude the discretion to allow the amendment, and also that it will not always be just to allow an amendment even where no new facts are pleaded. In particular, the Guidance notes that where there is no link between the facts described in the claim form and the proposed amendment, the tribunal must consider whether the new claim is in time and will take into account the tests for extending time limits, which, in this case, is the “just and equitable” formula.
Conclusions
[20]Taking into account the guidance provided by Cocking and Selkent, and the Presidential Guidance, I was satisfied that, whilst the original claim form had not provided a great deal of detail, references to most of the Claimant’s clarified discrimination claims could be considered to have been present. I was conscious that the Claimant had had no legal advice at that time, which potentially explained the lack of clarity, but I could see that the core of her complaints related to her treatment over the lighting issue in January 2020, and her contention that her dismissal, which appears first to have been raised, either as a possibility or a confirmed position, on 13 February 2020, was motivated by her disability and/or by her association with her daughter’s disability.[21]I concluded that the summary of the matters complained of by the Claimant in her original claim form was sufficient to indicate that she was pursuing claims under sections 13, 15, 19, 20/21 and/or section 26 EqA. To the extent that it may not have been clear that all those claims were being pursued, I noted the indication in the Presidential Guidance that the addition or substitution of new claims arising out of the same facts as the original claim would be more likely to be accepted. I therefore considered that, on that basis, it would be appropriate to allow those amendments to be made.[22]Furthermore, even if that had not been my conclusion, and looking at the broader question of the balance of prejudice as directed by the Cocking and Selkent cases, I noted that the Respondent would be required to deal with the same factual background for the purposes of the claims which it accepted it had to meet, under sections 15, 19 and 20/21 EqA, and would therefore be faced with very little prejudice in having to also deal with claims under sections 13 and 26 EqA.[23]However, I viewed the potential amendment to include a claim under section 27 EqA differently, in that there was a separate element to be considered, i.e. the requirement for there to have been a “protected act”, and there had been no reference to any such matter within the original claim form. Indeed, the amended grounds of complaint was not entirely clear on this, referring only to the victimisation claim relating to, “detriment because of the issue of reasonable adjustments required to allow me to continue to work”. As I have noted above however, the Claimant did clarify during the hearing what she was contending had been the protected act for the purposes of victimisation claim. That left the application to amend Page 5 of 6 to include the victimisation claim standing on the basis of the Claimant's contention that she had made a protected act in the form of a complaint on 7 January and that her subsequent treatment, acutely the indication to her in the middle of February 2020 that her employment was to come to an end, was detrimental treatment arising from that protected act.[24]Bearing in mind that, viewed from the time at which the application to amend was made, i.e. 18 June 2020, applying the time-limit extension provisions of section 207B(3), matters as far back as 3 February 2020 would be considered to be in time, I considered that it would be appropriate to grant that amendment, as the Claimant would still have been in a position to submit a fresh claim on the date on which she submitted her application to amend.[25]Overall, therefore, I concluded that it was appropriate to grant the Claimant's application to amend in its entirety.