Miss S BeadleClaimantHCUK Resourcing LtdRespondent
Before
Employment Judge WedderspoonIn person for claimantMrs. K. Parkinson (instructed by Solicitor) for respondentDate 5 February 2021
JUDGMENT
[1]The Claimant’s application to amend her case in the draft form, paragraph 1 dated 21 July 2020 is allowed.[2]The Claimant’s application to amend her case in the draft form, paragraph 2 dated 21 July 2020 is refused.[3]The Respondent has leave, if so advised, to amend its Response by 11 September 2020 to reply only to the factual assertions contained in the amended case.
REASONS
[4]By Claim Form dated 27 April 2020 the Claimant brought complaints of direct discrimination and harassment related to sexual harassment. The Claimant has now withdrawn her claims of direct discrimination. Before Employment Judge Brain at a Preliminary Hearing on 8 July 2020 the Claimant confirmed her claim was confined to the incident during the week commencing on 16 December 2019 only and that events between January and June 2019 were by way of background. In the course of the discussion with the Judge, the Claimant sought to amend her claim so that harassment between January 2019 and June 2019 referred to in the claim form as “background matters” (paragraph 1 of the proposed amendment) and adding a further new 1 ph outcome re case management Nov 2014 version complaint (paragraph 2 of the proposed amendment). In the circumstances that the Claimant had not made a formal application prior to the hearing she was given time to make an application in writing. The Claimant so applied on 21 July 2020 and clarified she additionally sought to add a further harassment allegation relating to sexual orientation dating October/November 2019 when she says Ms. Longman asked her in front of staff in the office, when was the last time she had sex.[5]On 13 August 2020, the Respondent submitted detailed written submissions opposing the Claimant’s application.[6]In the course of the telephone hearing both parties were given an opportunity to amplify their submissions.[7]For the Claimant she regretted that she had included paragraph 1 of her draft application as mere background in the pleaded ET1 because she saw them as out of time. In reality she believed that they formed a part of a series of events of discriminatory conduct towards her. In respect of paragraph 2, the Claimant accepted that she had not at the time put in a grievance. She believes H.R. at the Respondent was aware about this. She also raised a concern about paragraph 27 of the Respondent’s letter dated 13 August 2020 which she believed was incorrect. Her recollection is that Employment Judge Brain had expressed the provisional opinion that one discriminatory comment may be in the mid band of Vento.[8]The Respondent submitted that all the circumstances should be considered and in particular the hardship to the Respondent. The points relied upon to oppose the application were significant hardship to the Respondent, the amendment placed the Claimant on an unequal footing to the Respondent, and the amendments added costs. The Respondent relied upon the Claimant’s concession made in the hearing that paragraph 1 was out of time and that’s why it wasn’t included. As for paragraph 2, the Claimant had ample time to raise this and did not. The Respondent conceded that the same witnesses were likely to be dealing with the “background” allegation (paragraph 1 of the proposed amendment) in evidence in any event. In respect of paragraph 2 of the proposed amendment, this allegation has taken the Respondent by surprise. From the Respondent’s investigation into this matter since it was raised in the application letter, the context was a jovial conversation between the Claimant and a colleague she found attractive. The allegation was undated despite the Claimant saying the event had a significant effect on her. The Respondent stated there is a gap of 4 to 5 months between paragraph 1 and 2.[9]The Claimant stated she could not recall if she told her team leader about paragraph 2 but she should have raised it in hindsight as a grievance.[10]In deciding whether to exercise its discretion to grant leave to amend, the Tribunal takes account of the principles set out in Selkent Bus Company Limited v Moore (1996) ICR 836; Cocking v Sandhurst (Stationers) Limited NIRC 174; and Kutnetsov v The Royal Bank of Scotland PLC (2017) EWCA Civ 43, the Presidential Guidance, General Case Management (Guidance note 1) and the overriding objective in Rule 2 of the Employment Tribunal (Constitution and Rules) of Procedure Regulations 2013, Schedule 1. The discretion to allow an amendment is a wide one but should be exercised in a way which is consistent with the requirements of relevance, 2 ph outcome re case management Nov 2014 version reason, justice and fairness consistent in all judicial decisions. The Tribunal should consider the nature of the amendment (is it an addition of factual details to an existing allegation or a new cause of action); the applicability of time limits (if lodging a new claim has time expired); the timing and manner of the application. It is also important to remember that the principles in Selkent are not an exhaustive list or approached in a tick box fashion (see paragraph 20 of Kuznetsov v The Royal Bank of Scotland Plc which refers to paragraph 47 of Lord Justice Underhill’s judgment in Abercrombie v Aga Rangemaster Limited (2013) EWCA Civ 1148). The nature of the amendment[11]The Tribunal finds that the Claimant’s proposed amendment at paragraph 1 is not a wholly new cause of action but amounts to the re-labelling of factual background information already contained in the claim form and seeking to pursue this as an additional act of harassment related to sexual orientation. This matter had previously been brought to the attention of the Respondent by the Claimant by way of a grievance. The proposed amendment at paragraph 2 is a wholly new cause of action and is a significant amendment. There is no dispute that this matter did not form any part of a formal grievance raised by the Claimant. I agree with Employment Judge Maidment’s comments in the letter dated 30 July 2020 which states “..Her application to amend involves the addition of 2 harassment complaints related to sexual orientation. The first is already covered in her original grounds of complaint albeit labelled as background. The second appears not to have been raised before and the Tribunal notes that the Claimant had not explained her delay in raising it..” The applicability of statutory time limits[12]The applicability of the relevant time limit is an important factor but it is not determinative. The Claimant’s claim was presented on 27 April 2020. The Claimant had included at this stage by way of background paragraph 1 of her proposed amendment but paragraph 2 was not so mentioned. The Claimant states that she had not originally included paragraph 1 as a claim because she believed it was out of time. There was no further explanation as to why paragraph 2 had not been pleaded at all. The Respondent has indicated that there is a gap between paragraph 1 and paragraphs 2 and the presently pleaded cause of action. On the face of it both proposed amendments are potentially out of time. Paragraph 1 was always known to the Respondent; it formed part of the Claimant’s grievance and was pleaded as background. Due to the fact sensitive nature of the claims, at trial the Claimant may be successful in arguing it is just and equitable to extend time or that it forms part of a series of acts of discrimination or a continuing act. Hendricks v Commissioner for the Metropolis (2002) EWCA Civ 1686 emphasised the need to focus on the substance of the complaints when assessing whether they form a continuous act. In reality that can only be justly decided hearing all the evidence. I therefore weigh all these matters in the balance. The timing and manner of the application[13]It is a relevant factor to consider whether an application is made in a timely manner but again it is not a conclusive factor. The Claimant’s application to amend was made at the Preliminary Hearing on 8 July 2020 when the proceedings were at an early stage. She formalised this promptly by written 3 ph outcome re case management Nov 2014 version application dated 21 July 2020. The Respondent has had time to consider its response and has provided a detailed letter of objections. Balance of hardship[14]Proceedings are at a preliminary stage. The Respondent is calling a witness/witnesses to address background matters relied upon by the Claimant in paragraph 1 of the proposed amendment in any event. The amendment to allow paragraph 1 does not increase the length of trial hearing. The Respondent requested an additional day of hearing time following an application that the proposed trial date falls outside term time so it is difficult for witnesses and operational reasons and that the new case may take further time. I am mindful that the Claimant is a litigant in person conducting her case via CVP and that 2 days as a listing of the original claim may have been a little short in the circumstances. I do not see of itself that paragraph 1 increases the length of time particularly as the Respondent was calling the same witnesses to deal with it as background.[15]Paragraph 2 is a new matter not previously referred to in the ET1 at all nor in a grievance raised by the Claimant.[16]The balance of prejudice falls in the Claimant’s favour with regard to amending her claim to allow paragraph 1 which is relabelling background as a cause of action.[17]The balance of prejudice falls in the Respondent’s favour with regard to the proposed amendment of paragraph 2 because this matter is completely new and has not formed a complaint by the Claimant throughout the grievance process. In those circumstances I allow the proposed amendments of paragraph 1 but not paragraph 2.
Conclusion
[18]In all the circumstances I allow the Claimant’s amended claim form in the proposed draft paragraph 1 dated 21 July 2020 and give leave to the Respondent to amend its Response (if so advised) to reply to the factual assertions now made by the Claimant.[19]The Claimant raised some concerns about paragraph 27 of the letter of objection from the Respondents which opposed the Claimant’s amended schedule of loss. The Respondent stated that Employment Judge Brain had said that one comment could not fall into the mid band of Vento. The Claimant disputed this and this was not her recollection. Unfortunately, I do not have the notes of Judge Brain’s hearing before me so I am unable to deliberate on that point. In any event, the Claimant has put forward her valuation of her injury to feelings award. I explained the value of an injury to feelings award is dependent upon a Claimant succeeding in a claim of discriminatory harassment and the facts determined by the Tribunal. The Respondent was ordered to provide a counter schedule.
Conclusions
[20]It was submitted by Ms Levene that this did not accord with the pleaded case and would not have been agreed as an issue. The claimant pointed to a discussion during a Preliminary Hearing by telephone in which it is stated that the claimant complained that the conduct of her colleagues during week commencing 16 December 2019 was unwanted conduct relating to sexual orientation. This does not entirely clarify the matter in that the conduct of the claimant’s colleagues does not specifically refer to the alleged providing of information by the witnesses as a specific allegation of harassment.[21]The Tribunal has considered the issues as follows:[22]Incident 1 Harassment on grounds of sexual orientation - section 26 of the 2010 Equality Act 1. Did the Respondent or those acting on its behalf engage in conduct a. That she was called “Sinitta the maneater” from 5.12.18 until June 2019 by a colleague, CE.[23]This allegation was made by the claimant in a complaint to Samantha Roberts, Customer Services Team Leader in June 2019. It was investigated by Samantha Roberts and Sarah-Jane Satchwell. The Customer Service Advisor admitted saying it and confirmed that she would stop referring to the claimant in this manner. This incident was dealt with in informal manner and the claimant did not escalate the matter to the formal grievance procedure. 2. If so, was that conduct related to the Claimant’s protected characteristic of sexual orientation?[24]The admitted conduct did relate to the claimant’s protected characteristic of heterosexual orientation. 3. If so, did the conduct have the purpose or effect of violating the Claimant’s environment for the claimant? 4. In considering whether the conduct had that effect, the Tribunal will take into[25]It was Submitted by Ms Levine, on behalf of the respondents that the evidence revealed that the there was a light-hearted atmosphere at work and the Claimant had a sense of humour and enjoyed having a laugh. It was submitted that the Claimant joined in with this remark, said it herself and made jokes about it. The relevant circumstances include that the Claimant spoke openly about being interested in men. She accepted under cross-examination that she did speak about liking men and about men who walked past. ‘Maneater’ rhymes with the Claimant’s name, which reinforces that it was light-hearted and friendly, and said simply in response to the Claimant’s own comments about finding men attractive.[26]It was submitted that it was not reasonable for the comment to have the necessary ‘effect’; the comment was a response to what the Claimant said about men herself. This is further reinforced by the fact that the Claimant did not object to the comment being said and laughed along with it. We know that the Claimant is someone who is able to speak up when she is unhappy or dissatisfied; had she found it upsetting in any way, it is likely that she would have complained after it was said the first time.[27]Also, the Claimant referred to another employee as an ‘orange goth’ because she wore a tan. Under cross-examination, the Claimant accepted that it was more likely than not that she did make this remark. This highlights that the Claimant participated in a culture where vivid imagery/colourful language was used between colleagues without any intention to offend. Therefore, the Claimant cannot reasonably take offence to “Sinitta the maneater”.[28]The Tribunal finds that the conduct did not have the effect of violating the claimant’s environment for the claimant. She raised the issue informally but did not take it to any formal grievance procedure. It was light-hearted remark and there was no evidence that it was anything other than something that had been repeated on a number of occasions to the claimant’s irritation. Time/limitation issues 5. Does the Claimant prove that there was conduct extending over a period which is to be treated as done at the end of the period? Is such accordingly in time?[29]The conduct was dealt with and there were no further complaints by the claimant. The claimant agreed during the course of the internal procedure that this incident was not connected to incident 2. During the course of the grievance investigation she referred to the two incidents as “polar opposites”. It was not established that there was conduct extending over a period. The claimant said that she had not included incident 1 in her claim because it was out of time. This was recorded in the reasons for the judgment of Employment Judge Wedderspoon on 14 August 2020.[30]The claim to the Tribunal was not issued until 27 April 2020. The complaint in respect of incident 1 was not presented within three months starting with the date of the act to which the complaint relates. 6. If not, was any complaint presented within such other period as the Tribunal considers just and equitable?[31]The claim is out of time and there was no evidence provided as to whether it would be just and equitable to extend the time and the Tribunal has no jurisdiction to hear the claim in respect of incident 1. Incident 2 Harassment on grounds of perceived sexual orientation — section 26 of the 2010 Equality Act. 7. Did the Respondent or those acting on its behalf engage in conduct a. There was an incident at the Christmas 2019 meal in which the witnesses (TH and AH) said they heard the claimant being called a lesbian.[32]This was not established. During the investigation TH had said that he did not recall the comment being made. AH’s version of events was unclear. The matter was investigated and it was found by the respondent that it was unable to conclude whether this comment was made and who made it. There was a thorough investigation and the Tribunal had sight of the witness statements and evidence that was gathered. There was an appeal process which included further investigation and interviewing of relevant witnesses.[33]The grievance appeal was conducted by the Deputy Principal, Lizann Lowson, and it was directed that further training should be delivered to the Customer Services Team focusing on Equality and Diversity. The Tribunal heard evidence that this training has now taken place. b. That the witnesses of the meal incident told the claimant that they have been “told I am a lesbian” while we were all at work. The witnesses who informed the claimant were TH and AH. The incident was reported to the claimant in the week commencing 16 December 2019.[34]The inclusion of this issue is disputed by the respondent. Ms Levene submitted that, as a matter of policy, it could not be right that someone who informs the claimant of something that might have been said could be a harasser under the statutory definition.[35]What TH and AH are alleged to have informed the claimant about may have caused some upset, but it did not create an intimidating, hostile, degrading, humiliating or otherwise offensive environment for the claimant. The person who is alleged to have made the statement is A in the wording of section 26 and would be the alleged harasser.[36]It was submitted that this was not within the pleaded case. It was not the subject of the claimant’s grievances. It was not investigated by the respondent.[37]The Tribunal finds that this was not an identified issue. However, it has gone on to consider the position as if it had been an identified issue.[38]It was not established that the actions of TH and AH were actions of harassment. TH did not remember the comment ever being made. AH, during the grievance investigation said that TH had asked AH if she had heard that someone called the claimant a lesbian. AH had replied that she did hear that at the Christmas meal but that she didn’t know the context and took no interest. It was all very light-hearted at the time.[39]In her statement to the Tribunal the claimant said that he was told by two colleagues, TH and AH that: “ ..they had been told that I am a lesbian. I am not a lesbian, but I was shocked and humiliated by what they reported to me.”[40]The grievances and investigations did not consider any allegation that TH or AH was alleged to be the harasser. The Tribunal is not satisfied that the claimant had established facts from which the Tribunal could conclude that she was subject to harassment by TH or AH. It was not established that their actions had the purpose or effect of violating the Claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the claimant. It was the reporting of a remark by another person and the claimant had accepted that there was no reason for her colleagues to consider that she was a lesbian. In fact, this was the polar opposite to her being called a maneater.[41]The claimant said that she was shocked and humiliated by what had been reported not by the conduct of those reporting it to her.[42]The Tribunal is not satisfied, taking into account the claimant’s perception and the other circumstances of the case, that it was reasonable for the conduct to have the effect of violating the claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the claimant. 8. If so, was that conduct related to the protected characteristic of sexual orientation?[43]It was not established that there was any conduct related to the protected characteristic of the claimant’s sexual orientation or perceived sexual orientation. 9. If so, did the conduct have the effect of violating the Claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the claimant?[44]The claimant was concerned about her sexuality being discussed. However, it was not established that there was conduct which had the effect of violating the claimant’s environment for the claimant. It was established that the claimant was informed that a remark had been overheard at the Christmas meal in which the word “lesbian” had been used and the claimant’s name. However, the actual remark, who said it and the context in which it was said were never established. The Tribunal does not accept that the information relayed to the claimant had that purpose or effect. 10. In considering whether the conduct had that effect, the Tribunal will take into[45]The claimant did have the perception that there was conduct that had that effect. However, the evidence was so vague and inconclusive, it was unreasonable for the conduct to have that effect. The remarks and the reporting of those remarks were not of the gravity that it would be reasonable to have the effect of harassment of the claimant in these circumstances. Reasonable Steps Defence - section 109(2) of the 2010 Equality Act 11. Did the Respondent take all reasonable steps to prevent harassment of the Claimant in relation to incident 1 and/or incident 2?[46]The respondent had equality and diversity training in place. They did take reasonable steps to prevent harassment of the claimant. The Tribunal heard evidence in respect of the effectiveness of the training which was included in the induction process and there were interactive online courses and the evidence was that they were refreshed every three years. There was a harassment policy which explained the nature of harassment, the effect of harassment and what should be done about it. These were reasonable steps to prevent harassment.[47]There were no further reasonable steps that could be taken in respect of remarks made during a meal at a restaurant away from the respondent’s premises or the mention of a remark to the claimant in a later discussion.[48]In the circumstances the claim is not well founded and is dismissed.