Ms J Griffiths-Baker v Cardiff Metropolitan University and others: 1601135/2020

EMPLOYMENT TRIBUNALS

Case No 1601135/2020

Between

Ms J Griffiths-BakerClaimant

Cardiff Metropolitan University and othersRespondent

Before

Employment Judge S Jenkins

Mr J Mitchell (instructed by Counsel) for claimant

Date 19 August 2022

JUDGMENT

[1]The Claimant’s claims of discrimination arising from disability (section 15 Equality Act 2010 (“EqA”)) and of failure to make reasonable adjustments (sections 20/21 EqA), against all Respondents, are dismissed on withdrawal.

[2]The Claimant’s claim of breach of the obligation not to ask questions about the health of an applicant for work before offering work (section 60 EqA), against the Fifth and Sixth Respondents, is struck out as having no reasonable prospect of success.

REASONS

[1]The hearing was arranged to deal with a number of interlocutory matters, most involving case management issues which have been addressed in a separate document. There were however two matters on which judgment was required. The first involved the withdrawal of two of the Claimant’s claims, whilst the second involved an application by the Fifth and Sixth Respondents to strike out one of the Claimant’s claims, or in the alternative for the Claimant to be ordered to pay a deposit as a condition of continuing with it.

[2]I delivered judgment orally on the latter issue, but there was a request for written reasons. I therefore set out my reasons in relation to both issues below. Withdrawal

[3]Prior to the hearing, the Claimant’s representative had indicated in correspondence that she proposed to withdraw her claims of discrimination arising from disability and failure to make reasonable adjustments against all Respondents. There was a suggestion that that proposed withdrawal was subject to a condition but, during the hearing, Mr Mitchell, on behalf of the Claimant, confirmed that those claims were to be withdrawn unconditionally. I therefore ordered that they be dismissed on withdrawal. Strike out/deposit order

[4]The Fifth and Sixth Respondents had made an application for the Claimant's claim against them of a breach of section 60 of the Equality Act 2010 (“EqA”) to be struck out pursuant to Rule 37 of the Employment Tribunals Rules of Procedure (“Rules”) as having no reasonable prospect of success, or, in the alternative, that a deposit should be ordered, pursuant to Rule 39, to be paid by the Claimant as a condition of continuing that claim on the basis that it had little reasonable prospect of success. I noted that although the same claim is brought against the First to Fourth Respondents, and is resisted by them, a similar application has not been made on their behalf.

[5]I considered the written submissions of Mr Ludlow on behalf of the Fifth and Sixth Respondents, and of Mr Mitchell on behalf of the Claimant, together with their supplementary oral submissions. Law

[6]Looking at matters first from the perspective of the strike out application, I was referred to the House of Lords decision of Anyanwu and anor v South Bank Student Union and anor

[2001] ICR 391

, the Court of Appeal decision of Ahir v British Airways plc

[2017] EWCA Civ 1392

, and the Employment Appeal Tribunal decision of Abertawe Bro Morgannwg University Health Board v Ferguson

[2013] ICR 1108

. I also took into consideration the Employment Appeal Tribunal decision of Balls v Downham Market High School and College

[2011] IRLR 217

. All those authorities make clear that a strike out order should not be made in discrimination cases, except in the most obvious of cases, as they are generally fact sensitive and require a full examination of the evidence in order to make a proper determination.

[7]However, I noted the comment of Underhill LJ in Ahir that, “Employment Tribunals should not be deterred from striking out claims, including discrimination claims, which involve a dispute of fact if they are satisfied that there is indeed no reasonable prospect of the facts necessary to liability being established, and also provided they are keenly aware of the danger of reaching such a conclusion in circumstances where the full evidence has not been heard and explored, perhaps particularly in a discrimination context”.

[8]In relation to deposit orders, the Employment Appeal Tribunal in Van Rensburg v The Royal Borough of Kingston upon Thames (

UKEAT/0096/07

), noted that the “little reasonable prospect” test is not as rigorous as the “no reasonable prospect” test, noting that a Tribunal has a greater leeway when considering whether or not to order a deposit. Also, the Court of Appeal in Ezsias v North Glamorgan NHS Trust

[2007] ICR 1126

, noted that it was not wrong for a Tribunal to make a provisional assessment of the credibility of a party's case when deciding whether to make a deposit order.

[9]In terms of the claim sought to be struck out or, alternatively, sought to be made subject to a deposit order, section 60 EqA, which has the sub-title “Enquiries about disability and health”, provides as follows: “(1) A person(a) (A) to whom an application for work is made must not ask about the health of the applicant

(b) (B) – (a) before offering work to B” Background circumstances

[10]I made no findings in respect of any factual matters as no evidence was put before me. However, the background to the applications is that the Claimant's case is that she was offered a job by the First Respondent in December 2019, with the Fifth Respondent, corporately; and the Sixth Respondent, individually; being involved in that, as recruitment search consultants. It appears that a contract was concluded between the Claimant and the First Respondent in January 2020 for the Claimant to commence work for the First Respondent on 1 February 2020. However, shortly before that, concerns arose about the information the Claimant had provided and/or failed to provide during the recruitment process. Ultimately, after enquiries made of the Claimant’s former employer by the Sixth Respondent, a meeting between the Second Respondent and the Claimant, and an internal discussion involving the Second, Third, Fourth and Sixth Respondents, the proposed employment was withdrawn on 31 January 2020.

[11]The Claimant has bought a variety of claims against six Respondents, including one of discrimination arising from the asking of health questions that is the subject matter of the Fifth and Sixth Respondents’ application. Relevant to the Fifth and Sixth Respondents, the Claimant contends that the Sixth Respondent, and consequently vicariously the Fifth Respondent, in light of the concerns which had arisen, contacted a person he knew at the Claimant's previous employer and made enquiries about her. The Claimant contends that these involved enquiries about her health, although that is denied by the Fifth and Sixth Respondents. Submissions

[12]On the Fifth and Sixth Respondents’ side, in addition to raising a concern that the Claimant's clarification of her section 60 claim in further and better particulars she had provided amounted to an amendment (which I did not consider was the case), the essence of Mr Ludlow’s case was that section 60(1) EqA provides that a person to whom an application for work is made must not ask about the health of the applicant before (my emphasis) offering work to that applicant. He submitted that, even taking the Claimant's case at its highest, the earliest date that the Claimant says the Fifth and Sixth Respondents were involved in any possible breach of section 60 was 28 January 2020. He noted that the Claimant was offered work by the First Respondent on 18 December 2019, and that a contract was entered into between the Claimant and the First Respondent on 10 January 2020. He therefore contended that any enquiries about the Claimant's health alleged to have been made by the Sixth Respondent cannot have been before she was offered work, and therefore that her claim cannot succeed.

[13]Mr Mitchell’s written submissions on behalf of the Claimant primarily responded to the Fifth and Sixth Respondents’ contentions regarding what they contended was an expansion of her claim within her further and better particulars, which, as I have already noted, I did not consider had been the case. In his oral submissions, Mr Mitchell referred to being surprised by Mr Ludlow's argument about the timings of the alleged enquiries about the Claimant's health, suggesting that the point had not been raised in Mr Ludlow's written submissions, and in fact referring to having been ambushed. I did not, however, consider that there should be any surprise about the contentions advanced by Mr Ludlow, as, at paragraph 28 of his submissions, he referred to the dates on which the Claimant was offered work and appointed as preceding any alleged involvement of the Fifth and Sixth Respondent in any questions about the Claimant's health.

[14]Mr Mitchell noted that the First to Fourth Respondents were not making a similar application, to which Mr Keen on their behalf responded that, whilst they were not pursuing a strike out or deposit order application, the First to Fourth Respondents also did not consider that section 60 applied in fact, as any questions relied upon by the Claimant were posed after the work had been offered.

[15]Mr Mitchell also noted that the Fifth and Sixth Respondents had engaged with the Claimant's claim by factually denying that questions were asked, and by raising a request for further and better particulars of the Claimant’s section 60 claim. He concluded by contending that the question of whether and when health questions had been asked remained to be determined, and that that should happen at the substantive hearing.

Conclusions

[16]In relation to the strike out application. I was very mindful of the guidance provided by Anyanwu and Ahir, and indeed the other cases referred to above, that a strike out order should not be made in discrimination claims except in the most obvious of cases. I therefore approached matters from the perspective of taking the Claimant's claims at their highest in her claim form and further particulars.

[17]In that regard, the Claimant raised no concern about any questions being asked by any Respondent about her health prior to the job offer, or indeed prior to entering into a contract to commence work. Her claims, for the purposes of this application by the Fifth and Sixth Respondents, purely relate to questions alleged to have been asked by the Sixth Respondent of her former employer, on 28 January 2020.

[18]Section 60(1) EqA refers to a prohibition on the asking of questions about the health of an applicant before offering work to the applicant. It seemed to me that there was no question of the Claimant's claim in this regard succeeding, as the alleged questions, even if established as having been asked, occurred after the offer of work. I therefore concluded that the Claimant's claim under section 60(1) EqA against the Fifth and Sixth Respondents had no reasonable prospect of success and should therefore be struck out. Supplemental observations I made two supplemental observations.

[20]The first was that section 60(2) EqA provides that the enforcement of a contravention of section 60(1) is to be undertaken only by the Equality and Human Rights Commission. It seemed to me therefore, that there would be no ability, in any event, for an Employment Tribunal to grant any direct remedy to a claimant in respect of a breach of section 60(1) EqA.

[21]The second was that my decision regarding the section 60 claim does not mean that the factual points cannot be pursued as part of the Claimant's other discrimination claims. I noted that the Equality and Human Rights Commission’s Code of Practice on Employment, at paragraph 10.39, indicates that although job offers can be made conditional on satisfactory responses to, amongst other things, health enquiries, employers must ensure they do not discriminate against a disabled job applicant on the basis of any such response. The Code goes on to provide an example indicating that rejecting an applicant on the grounds that a health check reveals that they have a disability would amount to direct disability discrimination. It seemed to me therefore, that the Claimant's assertions about questions being asked about her health, whilst obviously needing to be substantiated, could still potentially have relevance for her other discrimination claims.

Background

[1]This case had been through several preliminary hearings prior to this one, most recently before Employment Judge Sharp on 29 April 2022.

[2]The background circumstances to the claim were set out in paragraphs 7 to 12 of the Case Management Orders I issued following an earlier preliminary hearing before me on 4 and 5 February 2021. However, to provide some context to the application considered in this hearing, key dates were that the relationship between the Claimant and the First Respondent, which had been due to commence on 1 February 2020, was in fact brought to an end on 31 January 2020, the Claim Form was then issued on 29 April 2020, and Responses were submitted by the Respondents on 29 May 2020.

[3]Judge Sharp's Case Management Orders, which dealt with a number of different matters, included a direction that the parties were to co-operate and agree a list of the issues to be determined at the final hearing. The first draft of that list was to be prepared by the Claimant, and was to be sent to the other parties to review by no later than 20 May 2022. The parties were then to work together to produce a list of issues to be used for further case management and for the final hearing.

[4]Judge Sharp also listed that final hearing to take place over eleven days commencing on 9 December 2022. The application

[5]The Claimant's representatives produced a draft List of Issues as required, but that led to a concern on the part of the Respondents that several matters set out in it had not been included in the Claimant's pleaded case, and should not therefore be included in the List of Issues. That led to the Claimant's representatives making an application, set out in an email of 4 July 2022, described as an “Application to include additional instances of detriment, discrimination and harassment in the list of issues".

[6]Attached to the email was the List of Issues on which various sections had been highlighted. The email confirmed that different types of claim had been identified as follows:(i) Those highlighted in Blue were new claims.

(ii) Those highlighted in Green were areas where there was a dispute as to whether they had been originally pleaded in the initial Claim Form or not.

(iii) Those highlighted in Purple, were ones which, whilst not in the initial Claim Form, were asserted by the Claimant as having been included in subsequently provided further and better particulars.

[7]The List of Issues, attached to this Judgment as an Appendix for ease of reference, is split into 31 numbered sections, with several of them having sub-sections, notably section 2, which lists alleged whistleblowing detriments, which has sub-sections running from 2.1 to 2.63; section 10, which lists alleged acts of less favourable treatment for the purposes of the direct discrimination claim, which has sub-sections running from 10.1 to 10.47; and section 13. which lists alleged acts of unwanted conduct for the purposes of the harassment claim, has sub-sections running from 13.1 to 13.46. The references to sections below are to sections within the List of Issues.

[8]There were 22 blue sub-sections, 30 green sub-sections, and 2 purple subsections. However, there was some overlap as several matters were included as ones giving rise to claims for whistleblowing detriment, less favourable treatment for the purposes of the direct disability discrimination claim, and/or unwanted conduct for the purposes of the harassment claim.

[9]The Claimant's application was to amend her claim to include those claims identified as being new instances of detriment, discrimination or harassment, i.e. those highlighted in blue. That was on the ground that they could not have been presented largely because they were unknown or had not occurred at the date the claim was issued. The Claimant’s position was that the areas highlighted in green and purple had already been included in the pleaded claim and therefore no amendment was required in respect of them. The Respondents were of the view that all matters highlighted required an application to amend, to which they did not consent.

Law

[10]With regard to the applicable law, the test to be applied in relation to applications to amend involves the assessment of the balance of injustice and hardship of allowing or refusing the amendment. The Employment Appeal Tribunal (“EAT”) in Selkent Bus Company Ltd v Moore

[1996] ICR 836

, reiterated that point, which had previously been made in Cocking v Sandhurst (Stationers) Limited

[1974] ICR 650

, and noted a non-exhaustive list of relevant circumstances which would need to be taken into account in the balancing exercise, namely; the nature of the amendment, the applicability of time limits, and the timing and manner of the application to amend. Those points have subsequently been encapsulated within the Employment Tribunals (England & Wales) Presidential Guidance on General Case Management (2018), Guidance Note 1.

[11]The EAT, more recently, in Vaughan v Modality Partnership

[2021] ICR 535

, gave detailed guidance on applications to amend tribunal pleadings. That confirmed that the core test in considering applications to amend is the balance of injustice and hardship in allowing or refusing the application, but noted that the focus should be on the real practical consequences of allowing or refusing the amendment, considering whether the Claimant has a need for the amendment to be granted as opposed to a desire that it be granted.

[12]With regard to claims arising after the submission of the initial claim form, the EAT, in Prakash v Wolverhampton City Council (

UKEAT/0140/06

), confirmed that there is no reason in principle why a cause of action that has accrued after the presentation of the original claim form should not be added by amendment if appropriate.

[13]With regard to the timing and manner of the application to amend, the EAT, in Martin v Microgeneration Wealth Management Systems Ltd (

UKEAT/05/006

) noted that whilst late amendments can be permitted in appropriate cases, the later an application is made, the greater the risk of the balance of hardship being in favour of rejecting the amendment. Indeed, the overriding objective, which the Tribunal Rules require to be applied, involves dealing with cases expeditiously and in ways which save expense, and undue delay may be inconsistent with that.

[14]However, the appellate courts have made clear that applications to amend can be made at any stage, with the key principle being the need for the applicant to show why the application to amend was not made earlier. The EAT, in Ladbroke Racing Ltd v Trainer (

UKEATS/0067/06

), noted that, in addition, the impact of delay on additional costs may be relevant, as may be circumstances where the delay has 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 would have been the case. The parties’ positions The Claimant

[15]The Claimant was of the opinion that the incidents highlighted in green and purple had already been included in the pleaded claim and therefore that no application to amend to include those claims was necessary.

[16]With regard to the matters that the Claimant accepted did require amendment, Mr Mitchell, on her behalf, whilst accepting that there had been a delay in raising the matters now sought to be included by way of amendment, noted that the focus of the decision in Vaughan was on the need for the tribunal to have regard to the injustice caused to the party seeking to amend if the application was refused, and to balance that against the injustice caused to the party seeking to oppose the application, if granted.

[17]He contended that the application should be viewed against the background of the Respondents seeking to delay the hearing of the case, having made various preliminary applications. He contended that a failure to allow the application would allow the Respondents to continue to treat the Claimant less favourably and/or to cause her detriment and/or to harass her, the contention appearing to be that the Respondents had continued to discriminate against, harass, and cause detriment to, the Claimant, after 31 January 2020, both in relation to an application the Claimant had made for the role she had been due to take up when subsequently re-advertised, and in relation to its conduct of the defence of these proceedings.

[18]Mr Mitchell contended that the amendments would not have significant consequences for the Respondents, whether in terms of disclosure or additional witness evidence, and would not lengthen the hearing. He submitted that the Respondents had never provided a list of the witnesses they proposed to call at the final hearing, and therefore that any contentions they might advance about difficulties amendments might cause them in that regard should be treated with caution.

[19]With regard to the matters highlighted in green and purple, Mr Mitchell contended that where a previously asserted factual claim had not been asserted as a specific act of harassment or detriment or less favourable treatment there would be no prejudice to the Respondents in allowing the Claimant to relabel those pleaded matters to refer to the other claims. The Respondents

[20]The Respondents’ submissions were principally made by Mr Keen on behalf of the First to Fourth Respondents, which were endorsed and supplemented by submissions made by Mr Ludlow on behalf of the Fifth and Sixth Respondents.

[21]They noted that the EAT, in Chandok v Tirkey (

UKEAT/190/14

), had observed as follows: “The claim, as set out in the ET1, is not something just 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.”

[22]They contended that the Claimant’s application was the worst type of example of a Claimant treating their claim form as something which only “started the ball rolling”.

[23]They noted that their Responses had been presented in May 2020, that further and better particulars of the Claims and Responses had been exchanged over the Summer of 2020, and that the parties had then given disclosure by list on 9 November 2020. They noted that the Claimant's proposed new allegations were therefore all based upon information that had been available to her for well over a year, and in some cases much longer, and that the time limits in respect of those claims would have expired long ago.

[24]The Respondents noted that, despite that lengthy delay, the Claimant had made no attempt in her application to explain when the potential claims came to her attention, or why she had delayed in bringing them. Specifically, the Respondents noted that it appeared that some of the allegations were based upon minutes of an internal meeting, involving the individual Respondents, on 31 January 2020. Those minutes had been disclosed to the Claimant on 18 December 2020.

[25]The Respondents noted that some of the allegations should have been apparent to the Claimant at the time she presented her Claim Form, as they appeared to relate to the First Respondent's announcements about the fact that the Claimant would not be taking up the proposed position. The Respondents also noted that other allegations appeared to relate to communications sent to the Claimant by the First Respondent's Board of Governors in response to a further application the Claimant made for the role when re-advertised in February 2021. In the context of an application to amend in July 2022, the Respondents contended that the matters raised were all significantly out of time.

[26]The Respondents contended that the allegations contained facts which were wholly unconnected with the Claimant’s termination, and which were likely to concern a number of different witnesses, including members of the Board of Governors and other administrative officers.

[27]In that regard, Mr Keen, on behalf of the First to Fourth Respondents, noted that they had made clear who was going to be called as witnesses at the final hearing in the preliminary hearing before Judge Sharp on 29 April 2022, namely the three named Respondents, an individual from the First Respondent’s students’ union, and an individual from the Claimant’s previous employer.

[28]The Respondents contended that further disclosure would also need to be considered, and that it was unlikely that additional work could be done before the commencement of the hearing due to start on 9 December 2022. The Respondents further contended that the if the amendments were granted the current 11-day listing would be likely to be inadequate.

[29]The Respondents also contended that, in addition to the timing of the application being unreasonable, so was its manner, with the Claimant not producing an amended ET1 Claim Form, but attempting to introduce these additional allegations into the List of Issues without informing the Respondents that they were new.

[30]The Respondents also contended that there was no reasonable basis for saying that any of the Respondents had continued to harass or mistreat the Claimant or that the Respondents had sought to delay the hearing of the case by making preliminary applications. The Respondents noted that any applications they had made had been successful, whereas those made by the Claimant had been very largely unsuccessful. Conclusions General

Conclusions

[31]As I have noted, the approach, urged upon employment tribunals by the appellate courts when considering amendment applications, is to focus on the need to balance the injustice and hardship caused to a claimant by refusing the amendment and caused to a respondent by allowing it, with the Vaughan case, noting that the focus should be on the real practical consequences.

[32]I also noted that the EAT in Vaughan confirmed that the examples outlined in Selkent as factors that may be relevant to the balancing exercise, which are also included in the Presidential Guidance as factors to be taken into account, whilst they should not be taken as a checklist to be ticked off to determine the application, are nevertheless factors which are to be taken into account in conducting the fundamental balancing exercise.

[33]In terms of the real practical consequences of allowing or refusing the amendment, an overarching issue in this case is that the final hearing, which has already been given a lengthy listing due to the breadth of matters to be considered, is scheduled to take place less than four months after the preliminary hearing in relation to this application.

[34]In relation to that final hearing, a case management timetable had been set out by Judge Sharp at the preliminary hearing in April, which had already been required to be adjusted at the end of this preliminary hearing to take into account the delay already caused to it by the Claimant’s amendment application. Indeed, I committed, at the end of this preliminary hearing, to provide this Judgment as soon as I practicably could to avoid further impacts on the timetable, and I noted that the case management timetable could need to be revisited, depending on my decision on the amendment application.

[35]In my view, the proximity of the final hearing, and the steps that the parties need to undertake to be ready for that hearing, means that prejudice is likely to arise, for both parties, and indeed potentially for other employment tribunal litigants, if the December hearing is jeopardised and has to be postponed.

[36]I also noted that many of the issues under consideration for amendment would appear to add little to the Claimant’s already pleaded case. The fundamentals of that are that the Claimant contends that the withdrawal of the role she was due to take up at the First Respondent involved retaliatory action as a result of protected disclosures she had made to her previous employer and/or involved acts of direct discrimination or harassment arising from a perception of her as disabled. The core of that is set out, often in granular, and it could be said excessive, detail, in the List of Issues regardless of this application to amend.

[37]Several of the matters sought to be added to the claim, if they involve detriments at all would be very minor ones, and certainly ones which would pale into insignificance alongside the core detriment claim of the withdrawal of the job. An example of that is the amendment sought to be added at section 2.12 of the List of Issues, asserted to be a comment by the Second Respondent about the Claimant, in the course of an internal meeting on 31 January 2020, that "there was a litigiousness" about her. That could form part of the evidence in this case in relation to the Claimant’s core claim, but it is difficult to see what the Claimant would materially gain from it being considered as an individual act of detriment, or, put another way for the purposes of this application, what hardship or prejudice the Claimant would suffer if not allowed to pursue the matter as an individual act of detriment.

[38]Other matters sought to be added to the claim would similarly appear to add little to the Claimant’s existing claims. Examples of these are section 2.13, where it is asserted that the Respondents’ failure to believe that the Claimant could have disclosed her absence as part of her application process was to her detriment, and section 2.59, which asserts that the Respondents’ continued failure to admit that the Claimant had made protected disclosures was a detriment. It is not clear how a failure to agree with the Claimant’s perspective on matters could amount to a detriment.

[39]Other matters appear to be misconceived, for example section 2.15, which states that a detriment arose from an unknown person informing any of the Respondents that "Her manager (one down from VC) had a “dossier” of her complaints." Paragraph 40 of the Claimant's Grounds of Complaint indicated that it was the Claimant herself who raised that point with the Second Respondent in her meeting with her. It is difficult to see how the actions of another person, particularly the Claimant herself, could be construed as a detriment caused by any of the Respondents.

[40]I considered conversely that there would be further obligations placed on the Respondents if the amendments were allowed. They would be required to undertake further investigations, further disclosure exercises, and potentially call additional witnesses.

[41]An example of that is the additions sought to be added at sections 2.56 – 2.62 which would involve assessing who, from the First Respondent’s Board of Governors, was involved in the matters complained about, which would in turn be likely to lead to additional disclosure and potentially additional witness evidence. The same point can be made about the proposed addition at section 2.23, which would involve the Respondents investigating who was involved in the publication of the fact that the Claimant would not be joining the First Respondent, a further disclosure exercise, and, if someone other than the individual Respondents was involved, the calling of an additional witness.

[42]In my view therefore, there was real prejudice to the Respondents, particularly the First to Fourth Respondents, if the amendments were granted, in return for limited material benefit to the Claimant if the amendments were granted.

[43]I also noted that there had been considerable delay in the making of the amendment application. One of the matters raised, the handling of communications about the fact that the Claimant was not going to be joining the First Respondent, could have been raised in the initial claim form in April 2020. Other additions seemed to be derived from the Respondents’ Responses which were submitted in May 2020. The most recent events sought to be added revolved around the re-advertisement of the Deputy Vice Chancellor role in February 2021. The matters sought to be added had therefore taken place a considerable time before the amendment application was made.

[44]I also noted that, despite the fact that three previous preliminary hearings had taken place, in July 2020, February 2021 and April 2022, no formal application to amend had been forthcoming. Even in relation to the application that had been made, that had arisen following the Claimant's preparation of a draft of the List of Issues, when it was pointed out to the Claimant that several matters had not appeared in the Claim Form. “Blue” issues

[45]In relation to the applications which were accepted by the Claimant to be fresh matters and thus requiring amendment, i.e. the matters highlighted in blue, my overall conclusion was that the Claimant would be put to very little practical hardship if the amendments were refused, whereas the Respondents would be faced with needing to undertake further investigations into the matters raised, which could in turn lead to further disclosure obligations, and the requirement to call additional witnesses. The balance of hardship therefore lay in favour of the Respondent and in favour of refusing the amendment applications. “Purple” issues

[46]I then moved to consider the two sections highlighted in purple, which were asserted by the Claimant to have been included in her further and better particulars, but which were not accepted by the Respondents as having been included in the pleaded claims. I noted that the two sections, 2.54 and 2.55, had been included in the Claimant's further and better particulars in response to requests relating to the sections of the claim form relating to the provisions, criteria or practices advanced by the Claimant as part of her claim of failure to make reasonable adjustments. The Claimant had subsequently withdrawn her reasonable adjustments claim, and I had dismissed that claim on withdrawal at the preliminary hearing in February 2021.

[47]In my view therefore, the sections were not included in the claim form and therefore were required to be considered by way of an application to amend. For the same reasons as informed my conclusions in relation to the sections highlighted in blue, I considered that the balance of hardship lay in favour of the Respondent and that the application to amend should be refused.

[48]My overarching comments about the balance of hardship above applied to these two sections. In my view, the particular matters raised do not add anything material to the already very detailed asserted detriments and therefore the Claimant would not be put to any material hardship by the matters not being included as elements of specific detriment. Furthermore, the matters were referred to within the Claimant's further particulars provided in August 2020, and could have been included in her original Claim Form, but were only raised as detriments in the application to amend nearly two years later. On the other hand, the Respondents, if faced with having to deal with these matters as specific claims of detriment, would have to revisit the Responses and the disclosure undertaken, and could potentially require the involvement of additional witnesses. “Green” issues

[49]I finally then moved to consider the sections highlighted in green. The Claimant contended that these were already included within the Claim Form, but that if it was considered that they had not, permission to amend the Claim form to include them should be granted. The Respondents, on the other hand, contended that the matters were not set out within the Claim Form and therefore required permission to amend, which should be refused.

[50]I ultimately considered that some of the highlighted sections were indeed to be found within the Claim Form and therefore were matters which could be advanced as specific elements of detriment, less favourable treatment and/or harassment. However, in relation to others I was not satisfied that they were included within the original Claim Form and therefore required formal permission to be granted to amend. With regard to those latter sections, for the same reasons as informed my conclusions in relation to the blue and purple sections, I considered that the balance of hardship lay against granting the amendments.

[51]I comment on each of the highlighted green areas as follows. 2.4. Whilst it is difficult to see how the specific fact of the engagement of the Sixth Respondent to seek additional information from the Claimant’s previous employer adds anything material to the Claimant's principal concern, the contention that that amounted to detriment is contained in paragraph 23 of the Grounds of Complaint and, therefore, section 2.4 does fall to be determined at the final hearing. 2.18. Similarly, whilst it is difficult to see that the assertion that the instruction of the Sixth Respondent to telephone the Claimant to withdraw the offer adds anything to the asserted detriment arising from the underlying decision that the offer be withdrawn, the matter is raised as an act of detriment in paragraph 42 of the Grounds of Complaint and, therefore, this matter can also proceed to be adjudicated upon as part of the final hearing. 2.25 Whilst the failure to pay the Claimant is included in the Grounds of Complaint, it was specifically referred to as an “unlawful deduction in wages”. The assessment of that claim will involve a fairly straightforward consideration of whether any sums were lawfully due. The inclusion of the failure to pay the Claimant as an assertion of detriment will involve a qualitatively different analysis. In my view therefore, this matter required amendment. It was referred to within the original Grounds of Complaint, and therefore was entirely capable of being referred to as an assertion of detriment as well as an assertion of an unauthorised deduction from wages, and the amendment to refer to it as a claim of detriment was made well over two years after the point was originally pleaded. Bearing in mind that if there was indeed a failure to pay the Claimant then she has a claim in respect of that, and will therefore be awarded compensation in respect of that, I did not consider that the Claimant would suffer material hardship through the matter not being addressed as one of detriment. From the Respondent's perspective, whilst the matter may already be able to be addressed evidentially in relation to the unauthorised deductions from wages claim, further analysis will need to be undertaken of the connection of any failure to any protected disclosure the Claimant may have made which may potentially lengthen the hearing. I therefore concluded that it would not be appropriate to allow this element to be included by way of amendment. 2.27 I formed a similar view in relation to this section. Whilst the Claimant did assert in her Grounds of Complaint that the Respondent's letter of 9 February 2020 contained contradictions, that was not pleaded as a matter of protected disclosure detriment. It did therefore require amendment and for the same reasons as I outlined in relation to section 2.25 I considered that that should not be permitted. 2.29 Paragraph 51 of the Grounds of Complaint refers to the First Respondent having stated that its actions in seeking to withdraw the accepted offer were done because of "information received". However, no reference was made to the use of that information as being an act of detriment or discrimination. The relevant paragraph went on to say that the asserted detriment was that the First Respondent did not seek to clarify the information with the Claimant. It did not refer to the use of the information. The reference to the use of such information in section 2.29 is therefore qualitatively different to the Claimant's previous reference to such information. For the same reasons as I have previously expressed in relation to my refusals to grant amendments, I considered that it would be appropriate to refuse to allow this section to proceed by way of amendment. It adds little, if anything, to the Claimant's primary concern of detriment in the form of the withdrawal of the job offer itself, and would require the Respondents to further investigate the use of the asserted information. 2.30 Paragraph 57 of the Grounds of Complaint does refer to an assertion that the Respondents’ failure to address the grievance set out in the Claimant's letter of 9 February 2020 was an act of detriment and/or discrimination. The paragraph was however confined to that letter and did not make reference to any other preaction correspondence. To the extent that the allegation relates to the letter of 9 February 2028 therefore, it is already pleaded and can proceed to be considered by the Tribunal at the final hearing. However, if the Claimant contends that any other correspondence should be included, then that would be a fresh matter and any application to amend in respect of that is refused, for the reasons specified in relation to the other applications to amend. 2.40.1 Paragraph 53 of the Grounds of Complaint, and its lettered subparagraphs which form the basis of the asserted detriments set out at sections 2.32 to 2.40 of the List of Issues, refers to detriment and/or discrimination having been caused by the Third Respondent. However, paragraph 63 of the Grounds of Complaint makes clear that the Claimant asserts that the First Respondent is liable for each act or omission done by the other Respondents. The First Respondent may, in any event, be liable for the actions of the other Respondents, particularly the Second to Fourth Respondents, by virtue of common law principles of vicarious liability, and possibly the application of sections 109 and 110 of the Equality Act 2010. In my view therefore, these matters, and indeed several other subsequent matters which fall to be considered in the same way, were included in the original Claim Form as claims against the First Respondent, as well as the named individual Respondent, and therefore can proceed to be considered in that manner at the final hearing. 2.44 Whilst there is reference in paragraph 54 of the Grounds of Complaint to the accessing of the Claimant's confidential medical records as an act of detriment and/or discrimination, it does not go further and assert a breach of the Claimant's personal data. Such an assertion potentially brings in concepts of data protection, which would be of an entirely different character and would involve further investigation by the Respondents and the need potentially to adduce additional evidence. In my view, that would involve an application to amend, which I considered should be refused for the reasons specified in relation to the other applications to amend. 2.49 The allegation set out at paragraph 60 of the Grounds of Complaint is that the Sixth Respondent wrote to the Claimant on 5 March 2020, stating that the First Respondent's decision, presumably the decision to withdraw the job offer, had been made as a result of the Claimant’s meeting with the Second Respondent on 30 January 2020, and because "something concerning had come to light". The paragraph refers to the letter being an act of detriment and/or an act of discrimination. The paragraph does not however assert that the First Respondent's provision of information to the Fifth and Sixth Respondents so that the letter could be sent was itself an act of detriment and/or discrimination, and that is therefore a fresh allegation against the First Respondent. For the same reasons as I have advanced in relation to the other applications to amend, I considered that it should be refused. 2.52 Paragraph 40 of the Grounds of Complaint refers to the Second to Sixth Respondents taking part in a telephone conference on 31 January 2020, during which the decision was made to inform the Claimant that the offer of employment had been withdrawn. The substance of section 2.52 is set out within that paragraph and can therefore be considered by the Tribunal at the final hearing. 10.3. This is perhaps another example of the Claimant seeking to particularise her claim in granular, and arguably excessive, detail. The fact that the First and Second Respondents engaged the Fifth and Sixth Respondents to seek information about the Claimant from her previous employer does not, in my view, add anything material to the Claimant’s claims. Paragraph 24 of the Grounds of Complaint does however refer to the First Respondent “and those responsible for engaging” the Fifth and Sixth Respondents to obtain additional information regarding the Claimant's absence at her previous employer as an act of discrimination. In my view, the Second Respondent can be considered to fall within the scope of "those responsible". I therefore considered that this matter was included in the initial Claim Form and can proceed to be considered at the final hearing. 10.16 Paragraph 42 of the Grounds of Complaint refers to the Sixth Respondent telephoning the Claimant on 31 January 2020 to inform her that the First Respondent was withdrawing the offer of employment. Clearly there must have been an instruction to the Sixth Respondent by one or other of the Second to Fourth Respondents, and potentially the First Respondent vicariously. I was therefore content that the instruction to the Sixth Respondent to make the telephone call had been broadly asserted within the Claim Form. Again however, I found it difficult to see what particular detriment the Claimant will have suffered from an instruction to the Sixth Respondent to call the Claimant to inform her that the offer was being withdrawn, when that was merely the method of implementing the underlying decision which is the core of the Claimant's complaint, i.e. the decision to withdraw the offer of 10.22 This has already been addressed in relation to the detriment claims at section 2.25 above. 10.25 This has already been addressed at section 2.29 above. 10.34 to 10.38. These relate to the same point as was addressed at section 2.40.1 above. 10.39. This is the same matter as was addressed at section 2.44 above. 10.44. This is the same matter as was addressed at section 2.40.1 above. 10.47. This is the same matter as was addressed at section 2.52 above. 13.8. This does not really involve an amendment, but I would agree with the Claimant's assertion that the allegation that there was a failure to provide her with notice is one which can lie generally as an assertion of discrimination against the First Respondent without needing to identify any individual. 13.12. This has already been dealt with at section 2.25 above. 13.15. This has already been addressed at section 2.29 above. 13.26, 28, 30 and 31 These are the same matters as were addressed at section 2.40.1 above 13.39 This is the same matter as was addressed at section 2.52 above.