Miss E Obi v Aneurin Bevan University Health Board: 1601318/2024
EMPLOYMENT TRIBUNALS
Case No 1601318/2024
Between
Miss E ObiClaimantAneurin Bevan University Health BoardRespondent
Before
Employment Judge ShotterIn person for claimantMs Gemma Griffiths (instructed by solicitor) for respondentDate 24 October 2025
REASONS
[1]This is a preliminary hearing to consider the claimant’s application to amend. Oral judgment and reasons were given on the day. The Order refusing he claimant’s application was sent to the parties on the 27 August 225.[2]In an email received on the 28 June 2025 the claimant applied to amend her claim a third time, describing it as an “elaboration” of her amended Grounds of Complaint set out in ETA1, the claimant’s first attempt to amend her Grounds of Complaint. The claimant provided further information in an email dated 9 July 2025 in support of her amendment, including a reply in response to the respondent’s objections dated 8 April 2025 and a third and final email attaching the claimant’s unpaginated bundle (which did not include any of the respondent’s communications) dated 5 August 2025.[3]There was no agreed bundle before me, and with the assistance of the parties I have accessed to all the relevant correspondence and pleadings, which have been considered. None of the documents have been numbered with the result that this preliminary hearing was less than straight-forward.[4]This litigation is lengthy and convoluted. It has been set down for a 15-day trial starting on the 4 November 2025, in less than 3-months. The case is not ready for trial. Not only is the claimant seeking to amend her claim out of time near to the trial, but there is a dispute over video evidence and the bundle, which runs to over 2250 pages.[5]I heard oral submissions from both parties, which I do not intend to repeat in full, and took into account the documents I was referred to. I also discussed and clarified with the claimant the amendments she was seeking to make, and have recorded this below, suggesting the claimant seeks legal advice (a suggestion that had been made to her earlier by a previous judge.) The claimant’s application was not entirely clear. The amendments[6]In oral submissions the claimant explained her amendments related to alleged continuous acts of discrimination by Dr Tom Morgan Jones and Michelle Morris. When asked, the claimant further clarified that the amendments she sought as recorded in the draft list of issues related to the time period January 2023 when Dr Tom Morgan Jones referred the claimant and Andrew Roberts, Consultant Ophthalmic Surgeon, to the medical director, Dr Stephen Edwards, on fraud allegations. Dr Stephen Edwards referred the claimant to the counter-fraud team between January to March 2023 (this is not a claim) and a fraud investigation took place between March and August 2023. In September 2023 the claimant met with the fraud investigator, Michelle Morris, who informed her that the chief executive of the private hospital in which the claimant carried out her private work had been told of the allegations and asked questions. The claimant was denied the opportunity to attend a pre-arranged meeting with the Counter Fraud investigator, Michelle Morris, on 17th January 2024, which had been scheduled for the claimant to provide clarification and information to clear the Claimant’s name. This meeting was cancelled by Ms Morris on the 16th of January 2024 and not reinstated or rescheduled despite the claimant's request and the counter-fraud team outcome was sent to the claimant on 7 February 2024 finding the claimant guilty of fraud. The claimant criticises the investigation. The relevant period of time for purpose of limitation appears to be January 2023 to 7 February 2024.[7]The claimant’s application to amend consists of the following amendments. Andrew Roberts is the proposed comparator in the direct discrimination complaint: “Direct Discrimination 1m Was the Claimant subjected to negative actions from Dr Tom Morgan Jones and Ms Michelle Morris as set out in Paragraph 4 of the ET1 claim. 1m(1) The Claimant (referred by Ms Reynolds) and Mr Roberts (referred by Prof Tourkmani) were both referred to Dr Tom Morgan Jones with allegations of fraud (essentially being paid by the NHS and working privately in NHS time), but only the allegations against the Claimant were forwarded to the Medical director and then onto the counter fraud team for investigation. 1m(2) The Claimant was denied the opportunity to attend a pre-arranged meeting with the Counter Fraud investigator, Ms Morris, on 17th January 2024, which had been scheduled for the Claimant to provide clarification and information to clear the Claimant’s name. This meeting was cancelled by Ms Morris on the 16th of January 2024 and not reinstated or rescheduled despite the Claimant's request and the judgement proclaimed. 1m(3) The Claimant was found guilty of Fraud by misrepresentation and failure to disclose, based on information that the Claimant had highlighted as incorrect and false to the investigator at their first meeting on 19th September 2023. Victimisation 6v Was the Claimant subjected to negative actions from Dr Tom Morgan Jones and Ms Michelle Morris as set out in Paragraph 4 of the ET1 claim: 6v(1) The Claimant was effectively judged guilty based on incorrect / false information, despite raising this with the counter-fraud investigator at the outset. 6v(2) The Claimant was denied a proper opportunity to challenge these inaccuracies or fully present their side of the matter to the investigator subsequent to the initial meeting. 6v(3) The prejudicial outcome of the investigation, based on false information, has caused significant professional and personal detriment to the Claimant, both inside and outside of the health board, including the Private Hospital the Claimant works at. Harassment 10g Was the Claimant subjected to negative actions from Dr Tom Morgan Jones and Ms Michelle Morris as set out in Paragraph 4 of the ET1 claim. 10g(1) The dissemination of false and defamatory information by the Claimant’s Department to the Counter Fraud team, which the Respondent then communicated to the Chief Executive of St Joseph's private Hospital, along with the Respondent’s Counter fraud Investigator, Ms Michell Morris’ findings and outcome. The Claimant is now seen in this negative light by the Private Hospital. 10g(2) The conduct of a prejudicial counter-fraud investigation based on inaccuracies, which led to the Claimant being effectively judged guilty without a fair process. 10g(3) The denial of a full and proper opportunity for the Claimant to challenge these inaccurate fraud allegations or present their full side of the matter to the investigator, subsequent to the initial meeting.” The history of the claim[8]ACAS early conciliation took place between the 12 March 2024 and 23 April 2024. The claim form was received on the 22 May 2024. The claim form was in bullet points and there was no mention of any claims against Dr Tom Morgan Jones or Michelle Morris and no reference to any complaint concerning being referred to the counter-fraud team.[9]On the 22 July 2024 the claimant submitted an application to amend attaching a new ET! Claim form which substantially amended her claim. This is referred to as “ET1A.” Leave to amend was granted without a hearing on the 5 September 2024 and the parties accepted that, with the exception of the second amendment, the ET1A form was the claimant’s pleaded case. The claimant submits that paragraph 4 in the ET1A refers to “negative actions from Dr Tom Morgan Jones” and the application to amend that is before me today is essentially clarification of the negative actions relied on. I found there was no mention of any claims against Dr Tom Morgan Jones or Michelle Morris in relation to the fraud allegation and no reference to any complaint concerning the claimant being referred to the counter-fraud team or the manner in which the alleged fraud was investigated.[10]The claimant has taken part in a number of preliminary hearings in addition to conducting an internal grievance in relation to the counter-fraud investigation and outcome. The first preliminary hearing was held on the 16 January 2025. The Record of Preliminary Hearing sent to the parties on 17 January 2025 made reference to the claimant seeking to exclude material the respondent sought to rely on relating to a fraud allegations “asserting it was prejudicial” (para. 27). The next preliminary hearing held on 14 February 2025 dealt with a number of issues, including specific disclosure when various orders were made, including in relation to 23 documents titled “EO Counter Fraud Documents.” The claimant did not raise the possibility of making an application to amend her claim in respect of the fraud allegations and counter-fraud investigation at that stage. The case management orders were sent to the parties on the 20 February 2025.[11]The claimant made an application to amend her claim which was heard on the 11 April 2025. The Order and Reasons were sent to the parties on 17 June 2025. The claimant’s application to amend was successful. It is undisputed that in the claimant’s application to amend did not include any claims against Dr Tom Morgan Jones or Michelle Morris in relation to the fraud allegation and there was no reference to any complaint concerning being referred to the counter-fraud team or the manner in which the alleged fraud was investigated. By this stage the List of Issues had largely been agreed and the parties were preparing the case for the trial.[12]Nine days after being sent the Order and Reasons the claimant made a third application to amend. The reasons provided by the claimant for the delay in her application is unconvincing and not credible. The claimant explained she is a litigant in person and did not understand she could include the actions of the counter-fraud team as acts of race discrimination., and believed it was “purely” for the criminal courts. By the 28 June 2025 claimant had been involved in three preliminary hearings when her claims and draft issues were discussed. Whilst the claimant was representing herself she had access to advice and support. The claimant was still employed by the respondent and if she had any doubt as to what she could and could not claim the claimant could obtain legal advice. The claimant could have also raised the possibility of amending her claim at one of the preliminary hearing. She chose not to do so, which is unsurprising given the claimant’s position on 17 January when the claimant applied to exclude material the respondent sought to rely on relating to a fraud allegations “asserting it was prejudicial.” Applying the legal principles to the claimant’s application to amend[13]Employment tribunals have a broad discretion to allow amendments at any stage of the proceedings, either on the tribunal’s own initiative or on application by a party — rule 30 of the Tribunal Rules 2024.[14]Rule 3 provides the following:(1) The overriding objective of these Rules is to enable the Tribunal to deal with cases fairly and justly.(2) Dealing with a case fairly and justly includes, so far as practicable— (a)ensuring that the parties are on an equal footing, (b)dealing with cases in ways which are proportionate to the complexity and importance of the issues, (c)avoiding unnecessary formality and seeking flexibility in the proceedings, (d)avoiding delay, so far as compatible with proper consideration of the issues, and (e)saving expense.(3) The Tribunal must seek to give effect to the overriding objective when it— (a)exercises any power under these Rules, or (b)interprets any rule or practice direction.(4) The parties and their representatives must— (a)assist the Tribunal to further the overriding objective, and (b)co-operate generally with each other and with the Tribunal.[15]The discretion when dealing with an amendment application must be exercised in accordance with the overriding objective in rule 3 of dealing with cases fairly and justly.[16]Taking into account that direction, the balance of hardship and justice is a key consideration. In Vaughan v Modality Partnership 2021 ICR 535, EAT, His Honour Judge James Tayler emphasised that the core test in considering applications to amend is the balance of injustice and hardship in allowing or refusing the application. I have heard submissions on submissions on the specific practical consequences of allowing or refusing the amendment. The claimant relies on her ignorance of Employment Tribunal proceedings, the fact that no additional witnesses will be required, no hearing dates will be de-railed and that the Tribunal is the only recourse she has of seeking justice (amongst a number of other arguments.)[17]Ms Griffiths submitted that additional witness evidence will need to be given, possibly by the claimant’s comparator, Mr Roberts, and Chris Commins, chair of the Respect and Resolution (internal grievance). Dr Tom Morgan Jones and Michelle Morris were no longer in the respondent’s employment. They are due to give evidence, however, it is unlikely the witnesses will be able to respond to the new allegations until mid-September, when an amended response will need to be filed and witness statements produced. The respondent is concerned with the possibility that the case will not be ready for trial and whether it will go part heard.[18]Mummery P in the well-known case of Selkent Bus Co Ltd v Moore 1996 ICR 836, EAT, set out number of guiding principles to assist a Tribunal when considering an amendment application, including the nature of the proposed amendment should be made it clear and considered first, before any time limitation issues are brought into the equation, as 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 then it does not matter whether the amendment is brought within the timeframe for that particular claim — Foxtons Ltd v Ruwiel EAT 0056/08.[19]The Tribunal decides whether the amendment sought is one of the minor matters or is a substantial alteration pleading a new cause of action.’ In Remploy Ltd v Abbott and ors EAT 0405/14 His Honour Judge Serota observed that if fresh points ‘can properly be considered to be particularisation of an allegation already pleaded, a more liberal approach may be taken in considering whether to grant permission to amend, than in cases where the point is a “new” point, or will require the parties to produce further evidence or disclosure and prejudice the timetable set for the proceedings or cause further delay’. Taking into account the Presidential Guidance referred to below, I am satisfied that the claimant is bringing new claims of direct race discrimination, harassment and victimisation against Dr Tom Morgan Jones and Michelle Morris. Michelle Morris had not been specifically referred to by name in the ET1A until this application to amend. Had the amendment application been granted both Dr Tom Morgan Jones and Michelle Morris would be required to deal with the new allegations in witness statements and oral evidence. It is likely this fact, coupled with the new witness evidence of Mr Roberts and Chris Commins could result in the preparation for the trial being delayed with the result that the claimant has less time in which to read the respondent’s witness statements and prepare for the trial and/or delay the trial preparation to such an extent that it cannot proceed. If the case is taken out of the list there will be a considerable delay to listing a case longer than 15-days and this will prejudice both parties.[20]I must review all the circumstances, including the relative balance of injustice, in deciding whether or not to allow the amendment (i.e. the Cocking test, derived from Cocking v Sandhurst (Stationers) Ltd and anor (above), as restated in Selkent) and concluded the practical consequences of allowing the amendment are prejudicial to both parties because we are so close to the final hearing and there are still case management orders to be met, not least finalising the agreed list of issues, the bundles and witness statements.[21]I am also concerned that the final hearing will go part-heard given the new amendment is likely to involve different areas of enquiry into the way the fraud allegations were investigated and the part played by the different individuals. I am also concerned that the claimant has left it too late in the day to make this application to amend, despite numerous past opportunities to do so, which undermines her argument that this particular claim was a central issues in her claim, when earlier during a case management hearing she considered documents relating to fraud allegations prejudicial. There are time limit issues in relation to the claimant’s new complaints, and I cannot see how she will be in a position to argue that the alleged actions of Dr Tom Morgan Jones and Michelle Morris were continuing acts. The claimant explained she relied on Dr Tom Morgan Jones’ discriminatory behaviour over a period of time, however in the ET1A the only reference to Dr Tom Morgan Jones if that following the claimant’s complaint of bullying and harassment about the “new clinical lead…from July 2023 I have experienced a significant increase in negative actions from Dr Tom Morgan Jones and some other department leads/managers. There is no reference to the fraud allegations or investigation carried out by Michelle Morris and/or the counter-fraud team.[22]I concluded that the claimant has 15-pages of issues which sets out a number of different allegations, and the new claims she is seeking to bring involves a number of substantially different areas into the fraud investigation which will result in an even more complex case for the respondent to prepare, additional witnesses and time that would need to be allocated to the final hearing in order to deal with the new evidence than that which was envisaged in the first ET1 and the claimant’s amended ET1A.[23]Contrary to the claimant’s submissions, I do not accept there was a link between the pleaded case and the amendment, which the claimant could have raised much earlier than she did, with the result that had the application to amend been accepted, for example, following the claimant lodging the ET1A, the respondent had not prepared witness statements or an amended response.[24]I am satisfied, taking into account the legal principles and submissions heard today, the balance of prejudice lay with the respondent should the claimant’s application to amend be granted. The claimant, who has not provided satisfactory reasons for why she waited so long before making her amendment application raising materially new factual allegations, has a comprehensive claim of race discrimination being brought against the respondent, and whilst she may be disappointed with the outcome of this preliminary hearing and feel that the balance of prejudice falls on her side more than the respondent’s, I take the view having referred to the ‘The Presidential Guidance on General Case Management for England and Wales,’ which contains specific guidance on amendments, entitled ‘Guidance note 1: Amendment of the claim and response including adding and removing parties’ that the claimant’s application should be refused taking into account the balance of justice and the fact that she is not deprived on a fair trial in relation to all the claims due to be heard in less than three months. The claimant’s application is dismissed. Approved by: Employment Judge Shotter, Dawn,