Mrs F Hassanzadeh v City of Bradford Metropolitan District Council and The Governing Body of Belle Vue Boy’s School: 1802968/2013

EMPLOYMENT TRIBUNALS

Case No 1802968/2013

Between

Mrs F HassanzadehClaimant

City of Bradford Metropolitan District Council and The Governing Body of Belle Vue Boy’s SchoolRespondent

Before

Employment Judge Horne

Respondents for claimant

Date 15 January 2020

JUDGMENT

[1]The claimant’s application for

REASONS

Conclusions

[1]By a case management order sent to the parties on 29 June 2017, the claim was listed for a preliminary hearing in public to determine, amongst other things: “…whether or not the claimant should have permission to amend her claim to include…complaints of detriment contrary to section 44 of the Employment Rights Act 1996, as they are set out in the following Schedule”.

[2]For the sake of convenience I refer to the Employment Rights Act 1996 as “ERA”.

[3]At various stages, the claimant has applied for me to recuse myself from any further involvement in the case. I decided to consider that application alongside the amendment dispute. The proposed amendment

[4]The Schedule to the case management order read as follows: Proposed complaints of detriment contrary to section 44 of the Employment Rights Act 1996 The claimant’s claim (if the amendment is allowed) will be advanced on the following basis.

Conclusions

[1]In circumstances where it was not reasonably practicable to raise the matter through a health and safety representative or a health and safety committee, the claimant brought to the School’s attention, by reasonable means, circumstances connected with his work which she reasonably believed were harmful or potentially harmful to health or safety (section 44(1)(c)(ii)), The occasions on which the claimant took these protected steps are completely listed in the table below.

[2]The claimant also wishes to rely on the same facts to show that, on these occasions, there were in circumstances of danger which claimant reasonably believed to be serious and imminent, which she could not reasonably have been expected to avert. In those circumstances, whilst the danger persisted, the claimant left her workplace by going on sick leave and refused to return, by remaining on sick leave (section 44(1)(d). Case No. 1802968/2013 3

[3]The claimant also wishes to rely on the same facts to show that she took (or proposed to take) appropriate steps to protect herself from the danger (section 44(1)(e)).

[4]The claimant’s case is that, on the ground of each protected step, the respondent subjected her to the detrimental acts or failures to act set out in the right hand column of the table below.

[5]The occasions on which the claimant relies are as follows: Date Protected step Detrimental act or failure

[1]Various dates prior to 2001 The claimant wrote to her Head Teacher, Mr Berry, stating that work-related stress was “destroying her”. Mr Berry deliberately failed to investigate the claimant’s concerns.

[2]2001 The claimant attended the Accident & Emergency Department in Leeds as a result of a peak in her stress levels caused by persistent bullying by Mrs Ogley. The claimant later attended a meeting with Mr Berry, and told him what had occurred. Despite apologising, Mr Berry deliberately failed to take action to prevent Mrs Ogley from bullying the claimant.

[3]2004 The claimant applied for the position of Assistant Head Teacher, but withdrew her application because of a “nervous breakdown”. She told the Head Teacher what the cause was. The Head Teacher deliberately failed to carry out a stress risk assessment or investigate the cause of the claimant’s breakdown.

[4]“A few months afterwards” The claimant was absent on sick leave for 3 weeks. Her sick note (as it was then called) cited “work-related stress”. The Head Teacher deliberately failed to carry out a stress risk assessment or investigate the cause of the claimant’s stress.

[5]Various Every time the claimant submitted a sick note citing “work related stress” The Head Teacher deliberately failed to investigate the claimant’s concerns.

[6]2008 (shortly after Mr Willsher becoming Head Teacher) At an interview “to answer for the illnesses”, the claimant explained to Mr Willsher that it was all due to the behaviour of Mrs Ogley. Mr Willsher(a) deliberately failed to carry out a stress risk assessment or investigate Mrs Ogley’s behaviour

(b) “made a forgery” by deliberately falsifying the record of that meeting.

[7]April or May 2011 The claimant e-mailed Mr Willsher to inform him of Mrs Ogley’s bullying behaviour. Mr Willsher deliberately failed(a) to investigate the complaint;

(b) to refer the claimant to Occupational Health and

[8]April 2011 The claimant provided Mr Willsher with a folder of documents in support of her allegation As above. Case No. 1802968/2013 4

[9]2011 The claimant continued to submit GP sick notes. Mr Willsher deliberately failed to take any action other than referring the claimant to Occupational Health

[10]November or December 2011 The claimant’s husband wrote to Mr Willsher, explaining about the claimant’s mental health and proposing management action. Mr Wilshire:(a) Concealed the existence of a written stress policy; and

(b) Conspired with the claimant’s trade union to conceal that policy.

[11]January 2012 At a meeting with the claimant’s trade union representative, the claimant’s husband provided a document (Attachment 1 to the claim form) setting out health and safety concerns(a) At a meeting in mid-January 2012 attended by the claimant, her trade union representative, Mr Willsher and Human Resources, Mr Willsher refused to admit that there had been any failure on the part of the School. This was despite the fact that the Human Resources manager apologised.

(b) Mr Willsher deliberately failed to follow Occupational Health advice.

(d) In a meeting in April 2012 to discuss the claimant’s return to work, Mr Willsher deliberately failed to mention the obligation to conduct a stress risk assessment.

[12]Mid-January 2012 At the same joint meeting as above, the claimant attempted to explain why things were affecting her health and safety. As above.

[13]May or June 2012 The claimant’s husband informed Mr Willsher of the obligation to carry out a stress risk assessment Mr Willsher deliberately failed to carry out a stress risk assessment and in particular to investigate allegations that race discrimination was the cause of the claimant’s stress

[14]From April 2012 The claimant’s husband sent about one or two e-mails per week to the School raising health and safety concerns Mr Willsher deliberately failed to carry out a stress risk assessment

[15]July 2012 At a meeting at Occupational Health premises attended by Mr Willsher, Human Resources, Occupational Health, the claimant’s union representatives, Mr Willsher:(a) Falsified the minutes of the meeting and

(b) Wrote a letter purporting to Case No. 1802968/2013 5 the claimant and her husband, the claimant’s husband raised matters that were dangerous to health and safety. set out how he was going to address the issues raised at the meeting, but which actually was a form of bullying.

[16]From July 2012 On a weekly or monthly basis there were meetings at which there was a discussion of how to carry out the stress risk assessment Mr Willsher refused to complete the stress risk assessment. In particular he refused to address all the issues going back to 1993. Relevant procedural history 5. By a claim form presented on 19 March 2013, the claimant presented a number of complaints which included: 5.1. “Breach of … Health and Safety at Work etc Act 1974” 5.2. “Breach of… The HSE Management Standard for work related stress” 5.3. “Breach of… Statutory responsibilities in order to comply with the 2009 OFSTED Inspection Framework” 5.4. “Breach of Duty of Confidence and Trust” 6. In section 7 of the claim form, headed, “Other information”, the claimant stated, “Protection Disclosure I have explained the details in this respect in the attachment 3.” 7. The claim form went on to formulate the claimant’s complaints in more detail. Paragraph 4 of the tribunal’s written reasons (“the Time Limit Reasons”) sent to the parties on 6 July 2017 quote extensively from that part of the claim form. For the purpose of these reasons it is largely sufficient to cross-refer to the Time Limit Reasons. I would that the claimant also made allegations of failure to follow the Managing Staff Attendance Policy and Procedure Document and the Fit Note Guidance for Managers. The Head Teacher was accused, amongst other things, of failing to take appropriate steps based on the claimant’s doctor’s recommendations expressed in fit notes from July 2011. There were also details of the claimant’s claim against National Union of Teachers (NUT). That claim has since been struck out. It was alleged that successive NUT representatives had failed in their legal duties, essentially, by failing to ensure that a stress risk assessment was carried out. 8. The claim form was accompanied by two attachments (Attachment 1 and Attachment 2). The way in which the claim form described the two attachments is set out in the Time Limit Reasons. 9. Attachment 1 gave a narrative account of what the claimant had endured between 1993 and 2012. Broadly speaking, the claimant alleged she had been bullied for many years by the Head of Mathematics, Mrs Joan Ogley, largely by making false accusations about the claimant’s performance. The bullying had made the claimant ill with stress and anxiety. A succession of Head Teachers had failed to stop Mrs Ogley’s behaviour. Case No. 1802968/2013 6 10. More specifically, Attachment 1, included the following allegations: 10.1. That the claimant had raised “concerns” in writing to Mr Berry, the Head Teacher. The “first written complaint” was in February 1999; the next in May 2000. Attachment 1 did not suggest that the claimant had informed Mr Berry in these written complaints that the claimant was being “destroyed” or that her health was suffering. 10.2. That the claimant was taken to hospital by ambulance and two days later an urgent meeting was arranged with Mr Berry and others. At that meeting Mr Berry apologised and assured the claimant that he would be more watchful. According to Attachment 1, following the meeting, “there was a period of relative calm between us, although [Mrs Ogley’s] hostile attitude towards me remained intact. However, Mr Berry left the school in 2003 and this period of relative calm came to an end.” It was not suggested that Mr Berry had failed to prevent Mrs Ogley from bullying the claimant following the meeting. 10.3. That Mr Whittaker, the next Head Teacher, had been firm with Mrs Ogley and had not allowed her to create a distorted view of the claimant’s performance. It was unfortunate, the claimant stated, that Mr Whittaker was not Head Teacher for longer. 10.4. That, in March 2004, the claimant withdrew her application for the post of Assistant Head Teacher “to stop damaging my health”. There was no suggestion that the claimant had informed Mr Whittaker of her reason for withdrawing the application, or that the reason was a “nervous breakdown”. Attachment 1 did not accuse Mr Whittaker of having failed to carry out a stress risk assessment or to investigate the cause of the claimant’s breakdown. It made no mention of the claimant having taken sick leave during any period that could be described as “a few months” after March 2004. 10.5. That, in June 2008, “after a series of absent days due to stress and anxiety”, the claimant told Mr Willsher, the then Head Teacher, at a meeting, that she was “suffering from chronic tiredness” and “explained in detail all the factors that contributed towards my anxiety and depression.” The narrative continued, “Although my explanation was sufficient enough to trigger a risk assessment on the ground of health and safety he failed to do so.” 10.6. That, in May 2011, the claimant provided Mr Willsher with a document indicating the state of her health and the problems with Mrs Ogley. Mr Willsher’s action was “another shallow response to his duty of care”. There was no mention of a folder of documents having been submitted at this time. 10.7. There was a mention of the claimant having been referred to Occupational Health in 2011. There was not, however, anything in Attachment 1 to suggest that the claimant had been providing GP fit notes, or that those fit notes had raised concerns about health and safety, or that the School had done anything or failed to do anything in response to those fit notes. 11. The thrust of many of these allegations was that successive Head Teachers had failed to take action despite the claimant having raised concerns about Case No. 1802968/2013 7 her health. There was no allegation in Attachment 1 or the claim form that the reason for the various failures to investigate or carry out risk assessments was because the claimant had raised those concerns, or that the claimant had taken sick leave or that she had not yet returned. 12. Attachment 2 was dated 7 February 2013. It alleged that, since March 2011, the School and Human Resources had been acting with the objective of a “cover up of unlawful conducts of the Head of Department and the Head Teacher”. It alleged “20 months of delay in starting to write the risk assessment”, and “deadlock created by [Mr Willsher and Human Resources] in the process of writing the risk assessment in December 2012”. The deadlock was, in the claimant’s view, attributable to the “refusal of the School and HR(1) to accept that my stress was a work-related stress,

(2) to accept negligence,

(3) to follow the school stress policy,

(4) to follow HSE Management Standard.” 13. In Attachment 3, the claimant provided further details of her “Protection Disclosure”. She identified that she was making a disclosure to the Health and Safety Executive (HSE), in essence, of the respondents’ failure to comply with the HSE Management Standard for work related stress. The document asserted that the claimant was following sections 43B to 43D of ERA. Section 43B(1)(d) was amongst the statutory provisions identified. Attachment 3 did not state when the protected disclosure had allegedly been made. From the document it appeared as though the claimant was making her protected disclosure at the same time as presenting her claim to the tribunal. (In fact, the claimant has subsequently clarified that her disclosure to the HSE was made in October 2012). 14. Neither the claim form nor Attachment 3 set out what if any detriment the claimant had been subjected to on the ground that she had made her protected disclosure. 15. Nothing in the claim form or Attachments tried to explain why the claimant could not have raised health and safety concerns through the respondents’ health and safety representative or committee. 16. Following a preliminary hearing on 27 November 2013, Regional Employment Judge Lee made a case management order which, at paragraph 3, identified the claims of which the tribunal was seized. These included “public interest disclosure”. Complaints under the Health and Safety at Work etc Act 1974 were expressly excluded from the list, on the ground that the tribunal had no jurisdiction to consider them. The claimant was ordered to provide further particulars of all her complaints in the form of a Scott Schedule. The order required the claimant to identify, in respect of every allegation, whether she contended that it was an allegation of detriment on the ground of a public interest disclosure.

[17]At the same preliminary hearing, the claimant’s husband asked for permission to amend the claim by adding a complaint of constructive unfair dismissal. The respondents did not object in principle to the amendment, but the claim was not amended at that stage, not least, because the claimant’s employment had not yet terminated. Case No. 1802968/2013 8

[18]On or about 16 January 2014 the claimant sent the respondent a letter of resignation. Termination of her employment was treated by the respondent as being effective from 17 January 2014.

[19]In a case management order sent to the parties on 12 February 2014 the claimant was encouraged to set out the basis of that complaint in writing. This the claimant’s husband did by e-mail dated 21 March 2014. The email ran to 5 pages of densely-typed narrative. Relevant for the purposes of this judgment were the following allegations: 19.1. “After a few weeks” from the claimant’s withdrawing her application for the Assistant Head Teacher post, the claimant was “off sick for 3 weeks due to work related stress”. 19.2. In July 2004, “Stress Risk Assessment – Guidance for Head Teachers was sent to the School by Bradford Occupational Health Department.” 19.3. In June 2008, Mr Willsher interviewed the claimant about her sickness absences and knew that the reason was “lethargy”, “exhaustion” and “stress”. The precise nature of the allegation was difficult to follow, but alleged a “clear act of omission” and alleged that Mr Willsher “chose to ignore” something (although what that something was was not clear). 19.4. From February 2009, Mr Willsher and others engaged in a “systematic and orchestrated silence” on receipt of the School Stress Policy. 19.5. The School’s Health and Safety Representative had kept quiet about the School Stress Policy. 19.6. The Head Teacher ignored “trigging points” to “justify his omission in carrying out a Stress Risk Assessment for the claimant. 19.7. Mr Willsher tried to “impose many unlawful terms in the Stress Risk Assessment”; and 19.8. Mr Wilsher “kept on ignoring all the… advice of…Occupational Health.

[20]On 24 March 2014 the respondents submitted an amended ET3 response, engaging with the constructive dismissal complaint.

[21]At some point, the claimant submitted what has become known as her Scott Schedule. The date of submission of this document is unclear. The claimant’s husband made reference to the Scott Schedule in his 21 March 2014 e-mail. I take it to have been sent to the tribunal by that date.

[22]Amongst the claims listed in the pre-amble to the Scott Schedule were “Claims of Detriments due to Breach of Health and Safety” and “Claims of Victimisation on the ground of Public Interest Disclosure”.

[23]Section 2 of the Scott Schedule was headed, “Background events”. Amongst the relevant events were the following: 23.1. No 17 – October 2001 to 2002 - Mr Berry was “unable to recognise” the attempts of Mrs Ogley “to push the Claimant to the point of collapse” and supported Mrs Ogley; Case No. 1802968/2013 9 23.2. No 20 – Spring term 2003 - A false complaint by Mrs Ogley about the claimant made Mr Berry “upset and supported the claimant” 23.3. No 23 – The claimant withdrew her application for the role of Assistant Head Teacher because of her health. Mr Whittaker failed to find out the reason. (Pausing there, it will be noted that this allegation contradicts Allegation 3 in the Schedule to the 29 June 2017 case management order.) 23.4. No 24 – March to April 2004 – the claimant was off sick for 3 weeks with the sick note indicating work stress. No action was taken by the Head Teacher, Mr Whittaker. 23.5. No 25 – Mr Whittaker kept all the teachers uninformed of Guidance for Head Teachers document in July 2004. 23.6. No 27 – 2008 - Mr Willsher started to falsify documents at the Mathematics Department. 23.7. No 29 – June 2008 - The claimant told Mr Willsher about her stress and depression as a consequence of ill-treatment in the Department. Mr Willsher falsified the notes of that meeting. 23.8. No 33 – May 2011 – The claimant informed Mr Willsher of her concerns about Mrs Ogley and about her own fragile state of health due to stress. Mr Willsher “refused to follow her stress issue”. 23.9. No 38 – December 2011 to January 2012 - Mr Willsher failed to follow Occupational Health advice and instead wrongly accused the claimant of having given false information. “All kept quiet about the Stress Risk Assessment and the School Stress Policy”. 23.10. No 39 – 12 April 2012 – a further allegation of keeping quiet about the School Stress Policy. This was levelled against the NUT as well as against the current respondents. 23.11. No 40 – April 2012 – the claimant’s husband brought the School Stress Policy and HSE Management Standard to the School’s attention, and was subjected to “great hostility and bullying” by the Head of HR and the claimant’s union representative. 23.12. No 41 – “24 July 2014 to September 2014” (presumably a reference to 2012) – falsifying the minutes of a meeting and excluding the claimant’s husband to force the claimant to agree with “terms” that “helped the school to cover up 10 years deception about the Stress Risk Assessment”. The NUT was also alleged to have been responsible for this act. 23.13. No 44 – October 2012 – “Mr Willsher and Mr Hall with variety of excuses delayed and blocked the progress of completing the Stress Risk Assessment.”

[24]Section 3 of the Scott Schedule is already referred to in the Time Limit Reasons. As will be seen from those reasons, the claimant made many allegations of disability discrimination and failures to make adjustments against Mr Willsher. These allegations of discrimination arising from disability. The less favourable treatment complained of included numerous omissions to conduct a proper stress risk assessment. There was one similar allegation Case No. 1802968/2013 10 levelled at Mr Whittaker going back to 2004. No allegation of disability discrimination was brought against Mr Berry.

[25]Section 4 of the Scott Schedule set out three allegations specifically of victimisation on the ground of public interest disclosure. The alleged protected disclosure was to the HSE in October 2012. It was described as, “Persistent refusal of the Head Teacher and Human Resources… in following the School Stress Policy and carrying out an appropriate Stress Risk Assessment which caused the second nervous breakdown of the claimant with no option but to do the Disclosure Protected Act”. There was one allegation of detriment levelled at the existing respondents. The allegation was, “The Head Teacher and the HR with all kinds of tricks blocked the completion of the Stress Risk Assessment”.

[26]Nothing in the Scott Schedule sought to explain why the claimant could not have raised her health and safety concerns through the respondents’ health and safety representative or committee.

[27]The Time Limit Reasons chronicle the progress of this case, eventually, to a preliminary hearing before Employment Judge Feeney on 20 April 2017. In a case management agenda form prepared in advance of the hearing, the claimant foreshadowed her intention to add a complaint of detriment under section 44 of ERA. This was the first time that a claim under this statutory provision was expressly identified. EJ Feeney ordered the claimant to provide further details of her complaint, including the facts on which the claimant relied, and the detriments to which she was allegedly subjected. A preliminary hearing was listed to take place on 19 June 2017. It was EJ Feeney’s intention that the amendment application should be determined at that

hearing.

[28]At the preliminary hearing, EJ Feeney listed the claim for a final hearing in February 2018.

[29]In response to EJ Feeney’s order, Mr Shojaee submitted a document dated 9 May 2017 and headed, “Claimant’s arguments in support of [Amendments]”. So far as the complaint under section 44 of ERA was concerned, the document did not set out any factual allegations or list any detriments. Instead, the claimant’s position was: “In the ET1 Form …I have listed 3 claims against these respondents for the breach of - Health and Safety at Work etc Act 1974 - The HSE Management Standard for work related stress - Statutory responsibilities in order to comply with the 2009 OFSTED inspection Framework The amendment I am requesting is only to [consolidate] these 3 claims into one claim and relabel it correctly as; “Claim under the Employment Rights Act 1996 sections 44(1)(c)(ii), (1)(d) and 1(e).”

[30]The respondents made submissions dated 16 May 2017. The amendment was opposed. Because, at this stage, the respondents were still guessing at the factual allegations of detriment, their objections were necessarily couched in general terms. One concern expressed by the respondents was that the Case No. 1802968/2013 11 claimant appeared to be using section 44 ERA as another vehicle for pursuing a personal injury claim under the Health and Safety at Work etc Act 1974.

[31]The preliminary hearing took place before me on 19 June 2017. That hearing ended up being dominated by the issue of whether the race discrimination complaint had been brought in time. The parties’ initial position, however, was that the tribunal ought also to determine the amendment application. To this end, I asked Mr Shojaee a series of questions to elicit the factual allegations underpinning the claimant’s section 44 complaint. These were recorded in the Schedule to my case management order, reproduced above. Mr Shojaee also made brief oral submissions. In essence, he repeated the argument that the complaint under section 44 of ERA was merely adding a new label to the existing health and safety complaints.

[32]Once I had given judgment on the time limit issue, I listed a further preliminary hearing to determine, amongst other things, the claimant’s application to amend. That hearing took place on 3 July 2017.

[33]By e-mail sent on 30 June 2017 (the last working day before the hearing), Mr Shojaee made an application that I should not be the judge at the 3 July preliminary hearing,. The grounds of his application included the following: “The way you and Judge Feeney have handled the claim of race discrimination so far signals the start of evidence tampering in a calculated plan and in harmony with the legal representatives of the Respondents. If this evidence tampering continues it will lead to an unfair full hearing with the intention of financial fraud by depriving the claimant from the compensation she is entitled to. You executed the first phase of this evidence tampering at the preliminary hearing on 19 June 2017 with a perverse decision that the claim of race discrimination is out of time.”

[34]A further letter from Mr Shojaee requested that I reconsider the judgment on race discrimination and time limits.

[35]At the outset of the preliminary hearing I asked Mr Shojaee if he wished to make any submissions in relation to his application for me to recuse myself. I suggested to him that, if he wished to make a recusal application, I ought to decide that application first before turning to the other matters for which the hearing had been listed. Mr Shojaee disagreed. He said, “I want my reconsideration application heard before anything else, because if you correct that perverse decision, the bias and misconduct disappears.”

[36]Having heard the reconsideration application I decided to confirm the judgment. Once I had announced that judgment and explained the reasons for it, Mr Shojaee informed the tribunal that he and the claimant would immediately leave the hearing. He handed the tribunal a pre-prepared letter confirming that he would play no further part. The letter accused me of breaching my judicial oath, of committing “misconduct in public office”, of having “resolutely continued to violate the impartiality and independence of the Tribunal”, and of having demonstrated a “determination for acting as the servant of the Respondents and their legal representatives rather than acting as an independent and impartial judge”. It went on to state, “I will leave this Case No. 1802968/2013 12 preliminary hearing to continue with my application for the transfer of this case to an independent and impartial employment Tribunal.

[37]As he handed the letter to me, Mr Shojaee said that he would not take any further part in the hearing. He asked for written reasons for the reconsideration judgment as a matter of urgency. I asked him, “Do you realise that, if you walk out now, decisions may be made in your absence?” Mr Shojaee replied, “You can do whatever you want to continue your misconduct in public office. I don’t want to be part of it. I don’t want to be part of this forum. You are under the thumb of the respondent.”

[38]I asked Mr Shojaee if he wanted to present any argument as to why I should recuse myself. He replied that I had already decided that point against him. I sought to correct Mr Shojaee, reminding him that I had suggested that he make his recusal application at the start of the hearing and offering him the chance to make submissions on it now. Mr Shojaee declined, adding, “You are not prepared to follow the rule of the Tribunal. I am leaving.”

[39]Following the hearing a written case management order was sent to the parties. Paragraphs 5 and 6 of that order made provision for the parties to rely on further written submissions in relation to the amendment dispute. The Discussion section indicated the legal principles upon which I proposed to direct myself in the event of any recusal application being renewed.

[40]The respondent’s further written submissions were dated 20 July 2017. They raised a number of generic objections in addition to the more tailored submissions in respect of each allegation in the Schedule. The generic objections were, essentially: 40.1. That, in respect of 15 of the allegations, the “protected step” was alleged to have occurred more than 3 months prior to the presentation of the claim form. Even if the section 44 complaint had been included in the original claim, it would have been out of time. 40.2. For the purpose of section 44(1)(c)(ii), the claimant had not explained why it was not reasonably practicable to raise health and safety concerns through the health and safety committee. 40.3. For the purpose of section 44(1)(d), the claimant’s going on sick leave was not removing herself from the situation of danger: sick leave is aimed at rest and recuperation, rather than avoiding risk. 40.4. For the purpose of section 44(1)(d) and (e), the facts alleged by the claimant did not amount to “serious and imminent danger”.

[41]The claimant made written submissions in reply. The written submissions reminded the tribunal that the claimant had attempted to “commit suicide” in February 2013. They emphasised the importance of the stress risk assessment as a thread running through all the legal strands of her claim. They also indicated that the date of the alleged protected disclosure to the HSE was in October 2012.

[42]Amongst the claimant’s written submissions was a renewed recusal application. Recusal was necessary, argued the claimant, because I had been, “getting the law and facts continually wrong with misstatements and omissions for shielding the scandalous conducts of the Respondents’ lawyers.” Case No. 1802968/2013 13

[43]I caused the case to be relisted on 20 September 2017 in the absence of the parties so that I could deliberate in private on the written and oral arguments I had received. On telephoning the tribunal office Mr Shojaee was informed of the deliberation date and that the parties were not required to attend. He subsequently e-mailed the tribunal expressing a wish to present further arguments in relation to the amendment dispute. I declined to allow the parties to attend the tribunal, but gave the claimant the opportunity to make a third set of written submissions if she wished. This Mr Shojaee did on 19 September 2017. The respondent did not object. I took his submissions into account. Relevant law Overriding objective

Relevant law

[44]Rule 2 of the Employment Tribunal Rules of Procedure 2013 sets out the overriding objective as follows: The overriding objective of these Rules is to enable Employment Tribunals to deal with cases fairly and justly. 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;

(d) avoiding delay, so far as compatible with proper consideration of the issues; and

(e) saving expense. A Tribunal shall seek to give effect to the overriding objective in interpreting, or exercising any power given to it by, these Rules. The parties and their representatives shall assist the Tribunal to further the overriding objective and in particular shall co-operate generally with each other and with the Tribunal. Whether amendment is required

[45]A tribunal must not adjudicate on a claim that is not before it: Chapman v. Simon [1993] EWCA Civ 37.

[46]In Chandhok v. Tirkey UKEAT0190/14, Langstaff P observed:17. ….Care must be taken to avoid such undue formalism as prevents a Tribunal getting to grips with those issues which really divide the parties. However, all that said, the starting point is that the parties must set out the essence of their respective cases on paper in respectively the ET1 and the answer to it. If it were not so, then there would be no obvious principle by which reference to any further document (witness statement, or the like) could be restricted. Such restriction is needed to keep litigation within sensible bounds, and to ensure that a degree of informality does not become unbridled licence. The ET1 and ET3 have an important function in ensuring that a claim is brought, and responded to, within stringent time limits. If a “claim” or Case No. 1802968/2013 14 a “case” is to be understood as being far wider than that which is set out in the ET1 or ET3, it would be open to a litigant after the expiry of any relevant time limit to assert that the case now put had all along been made, because it was “their case”, and in order to argue that the time limit had no application to that case could point to other documents or statements, not contained within the claim form. ...

18. In summary, a system of justice involves more than allowing parties at any time to raise the case which best seems to suit the moment from their perspective. It requires each party to know in essence what the other is saying, so they can properly meet it; so that they can tell if a Tribunal may have lost jurisdiction on time grounds; so that the costs incurred can be kept to those which are proportionate; so that the time needed for a case, and the expenditure which goes hand in hand with it, can be provided for both by the parties and by the Tribunal itself, and enable care to be taken that any one case does not deprive others of their fair share of the resources of the system. It should provide for focus on the central issues. That is why there is a system of claim and response, and why an Employment Tribunal should take very great care not to be diverted into thinking that the essential case is to be found elsewhere than in the pleadings.

[47]In Ali v. Office for National Statistics

[2005] IRLR 201

the Court of Appeal emphasised that, in deciding whether a particular complaint has been raised in a claim form, the tribunal should examine the document as a whole. Merely ticking a box alleging discrimination by reference to a protected characteristic may not be sufficient to raise a complaint of such discrimination if the underlying facts cannot be ascertained from the narrative.

[48]In Amin v Wincanton Group Ltd

UKEAT/0508/10/DA

, HHJ Serota distinguished between a claim that is “pleaded but poorly particularised” and a Chapman v. Simon case, where the complaint is not pleaded at all. In the former case, the claimant is not required to amend the claim. The lack of proper particulars does not affect the tribunal’s jurisdiction. The remedy in an appropriate case would be to strike out the relevant part of the claim. It is, HHJ Serota observed, “clearly undesirable that important issues in Employment Tribunal proceedings should be determined by pleading points”. Whether amendment should be granted

[49]Guidance as to whether or not to allow applications to amend is given in the case of Selkent Bus Company v. Moore

[1996] IRLR 661

. The following points emerge: 49.1. A careful balancing exercise is required. 49.2. The tribunal should consider whether the amendment is merely a relabelling of facts already relied on in the claim form or whether it seeks to introduce a wholly new claim. (Technical distinctions are not important here: what is relevant is the degree of additional factual enquiry needed by the claim in its amended form: Abercrombie & Ors v Aga Rangemaster Ltd

[2013] EWCA Civ 1148

). Case No. 1802968/2013 15 49.3. Where the amendment raises substantial additional factual enquiry, the tribunal should give greater prominence to the issue of time limits and whether or not the relevant time limit should be extended. 49.4. The tribunal should have regard to the manner and timing of the amendment. 49.5. The paramount consideration remains that of comparative disadvantage. The tribunal must balance the disadvantage to the claimant caused by refusing the amendment against the disadvantage to the respondent caused by allowing it.

[50]In Amey Services Ltd v. Aldridge UKEATS 0007/16, Lady Wise held that tribunals must not allow an amendment to a claim whilst leaving questions of time limits to be determined at a later stage. The case concerned what is known in the jargon as a “Prakash-type amendment” - adding an allegation based on events occurring since presentation of the claim form. Lady Wise did not, however, distinguish between such amendments, on the one hand, and applications, on the other hand, to amend claims based on the events that took place before the claim form was presented. The rationale for taking time limits into account was that an amendment has the effect of backdating the new claim to the date that the original claim form was presented, meaning that the respondent cannot revisit the time limit issue later (Rawson v Doncaster NHS Primary Care Trust

UKEAT/0022/08

). Unfortunately, Lady Wise did not distinguish between the period from original presentation to amendment, on the one hand, and, on the other hand, the time that elapsed between the alleged discriminatory act and the presentation of the claim.

[51]It appears at least possible, therefore, that Aldridge will be interpreted as meaning that the time limit question must be determined at the amendment stage in every case. This could even apply where, as here, there is a long series of allegations stretching over a number of years, with a dispute as to whether the acts complained of were part of an act extending over a period. That is a notoriously fact-sensitive question. Health and safety detriment

[52]Section 44(1) of ERA relevantly provides: (1) An employee has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that— … (c) being an employee at a place where— …(ii) there was … a representative or safety committee but it was not reasonably practicable for the employee to raise the matter by those means, he brought to his employer’s attention, by reasonable means, circumstances connected with his work which he reasonably believed were harmful or potentially harmful to health or safety, (d) in circumstances of danger which the employee reasonably believed to be serious and imminent and which he could not reasonably have been Case No. 1802968/2013 16 expected to avert, he left (or proposed to leave) or (while the danger persisted) refused to return to his place of work or any dangerous part of his place of work, or (e) in circumstances of danger which the employee reasonably believed to be serious and imminent, he took (or proposed to take) appropriate steps to protect himself or other persons from the danger.

[53]Section 48(1) confers jurisdiction on employment tribunals to consider a complaint that section 44 has been breached.

[54]By section 48(3), a tribunal must not consider such a complaint unless it was presented:(a) before the end of the period of three months beginning with the date of the act or failure to act to which the complaint relates or, where that act or failure is part of a series of similar acts or failures, the last of them, or

(b) )within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period of three months.

[55]For the purposes of subsection (3)— (a) where an act extends over a period, the “date of the act” means the last day of that period, and (b)a deliberate failure to act shall be treated as done when it was decided on; and, in the absence of evidence establishing the contrary, an employer shall be taken to decide on a failure to act when he does an act inconsistent with doing the failed act or, if he has done no such inconsistent act, when the period expires within which he might reasonably have been expected to do the failed act if it was to be done

[56]Whether a detrimental act was part of a “series of similar acts” is a fact-sensitive question. It is not the same as the test in discrimination cases of whether an act extended over a period. The tribunal must ask whether there is a link between the different acts and omissions that makes it just and reasonable to be considered as part of the same series. It is generally preferable for that question to determined at a final hearing after having heard the evidence. A tribunal may err in law by deciding the point on submissions alone. Arthur v. London Eastern Railway

[2006] EWCA Civ 1358

[57]In deciding whether acts form part of the same series, the following factors are potentially relevant: 57.1. It is necessary to look at all the circumstances surrounding the acts. 57.2. Were they all committed by fellow employees? 57.3. If not, what connection, if any, was there between the alleged perpetrators? 57.4. Were their actions organised or concerted in some way? 57.5. Why did they do what is alleged? Case No. 1802968/2013 17 57.6. It is not necessary that the acts alleged to be part of the series are physically similar to each other 57.7. It may be that a series of apparently disparate acts could be shown to be part of a series or to be similar to one another in a relevant way by reason simply of them all being on the ground of a protected disclosure (Lloyd LJ disagreed on this point). Recusal

[58]As previously indicated to the parties, my self-direction in relation to recusal is in accordance with the principles summarised in Ansar v. Lloyds TSB Bank plc

[2007] IRLR 211

, CA. These include, but are not limited to, the following: 58.1. The test in determining bias is whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased; 58.2. In any case where there is real ground for doubt, that doubt should be resolved in favour of recusal. 58.3. Judges must not yield to a tenuous objection any more than they should ignore any objection of substance; 58.4. Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour; and 58.5. Parties cannot assume or expect that findings adverse to a party in one case entitle that party to a different judge or tribunal in a later case. Conclusions - recusal

[59]I do not think that there is any merit in the claimant’s recusal application. I do not see how any fair-minded and informed observer would conclude that there was any real possibility of bias. There is nothing to suggest to a neutral observer that I was in any way helping the respondent to tamper with evidence. There is simply no basis for contending that I have been “shielding” any “scandalous conducts”. As explained in my case management order following the 3 July 2017 hearing, I deliberately sought written, rather than oral, submissions in order to achieve the maximum possible transparency after Mr Shojaee had walked out of the hearing. The claimant has not put forward any evidence to suggest that I was working “in harmony” with the respondent. During the course of the preliminary hearing on 19 June 2017, I made at least one decision (to offer a further preliminary hearing to deal with extension of time) in the teeth of the respondent’s objections.

[60]Mr Shojaee argues that I got the law wrong and misstated the facts. If he is right, his remedy is an appeal to the Employment Appeal Tribunal. Errors of law or fact do not mean that an impartial observer would think there was any real danger of bias. Even the most conscientious of judges can misunderstand the law or reach incorrect findings of fact.

[61]It seems to me that the claimant’s real reason for seeking recusal is that she – or Mr Shojaee – is unhappy with the outcome of the preliminary hearing on time Case No. 1802968/2013 18 limits. My view is based in no small part on Mr Shojaee’s remarks at the preliminary hearing on 3 July 2017. He wanted me to reconsider the time limit judgment before dealing with any recusal application. If only I would reverse my original decision, he said, any perception of bias would disappear. That is not a ground for recusal. Conclusions - amendment New factual enquiry

[62]My starting point is the degree of additional factual enquiry necessitated by the newly-formulated claim.

[63]The claimant argues that the amendment is a mere relabelling exercise. In my view, that argument is far too simplistic.

[64]I start by comparing the amended version of the claim with the original claim form. The claimant’s argument is that a claim under section 44 of ERA is a new legal label for the existing complaints under the Health and Safety at Work etc Act 1974, the HSE Management Standard, and statutory responsibilities in connection with Ofsted. It was difficult to understand precisely what those claims were. One thing the reader could be confident about, however, was that a claim under those legal provisions would not be about being subjected to a detriment for having raised health and safety concerns. Even on a non-technical reading of the 1974 Act, it is easy to see that it is aimed at protecting the health and safety of employees and others. It does not give workers protection against reprisals from their employers for speaking out on health and safety matters or for taking urgent preventative action.

[65]The reader of the claim form would form the same impression looking at the detailed factual allegations of what the respondents had done wrong. Those allegations were found in the claim form and Attachments 1 and 2. The claimant appeared to be saying that the respondents failed to follow procedures (in particular, to conduct a proper risk assessment) despite her raising health concerns and despite her health problems apparent from her sickness absence and GP notes. It appeared to be her case that the respondents’ failings had worsened her state of health.

[66]The general impression given by the claim form and Attachments 1 and 2 was thrown into some doubt by Attachment 3. That document indicated that the claimant was relying on a protected disclosure. It did not allege that the claimant had been subjected to any detriment as a result of it. Of course, an inquisitive reader might well have wondered why the claimant was bothering to mention that she made a protected disclosure at all if she were not also complaining about a subsequent detriment. The mere fact of making a protected disclosure does not give rise to a claim. But, at the stage of presentation of the claim, it was impossible to tell what if any detriment was being alleged.

[67]Nothing in the claim form or Attachments asserted that the claimant could not have raised health and safety concerns through a health and safety representative or committee.

[68]On a comparison between the claim form (including the Attachments) and the proposed amendment, two important new areas of factual enquiry would therefore be raised: Case No. 1802968/2013 19 68.1. As a convenient shorthand, I will call the first enquiry the “Reason Why Question”. That is to say, what was the reason why successive Head Teachers subjected the claimant to the alleged detriments? Was it because the claimant had raised health and safety concerns and/or was staying away from work? That question involves looking at the mental processes of the decision-maker. In addition to the Reason Why Question, other avenues of enquiry would also be opened up. Some of the alleged protected steps (for example, telling the Head Teacher in 2004 about her “nervous breakdown”) were simply not mentioned in the original claim. Similarly, the claim form was silent about some of the newly-alleged detriments, such as ignoring Occupational Health advice. 68.2. The second question is whether it was reasonably practicable for the claimant to raise her health and safety concerns in the manner prescribed in section 44(1)(c)(ii).

[69]That, however, is not the end of the matter. The tribunal is not just concerned with the formulation of the claim at the time it was originally presented. There have been three significant developments since the date of presentation: 69.1. First, the claim has already been amended, without objection, to introduce a complaint of unfair constructive dismissal, based on the facts asserted in the 21 March 2014 e-mail. That complaint is to be treated as having backdated to the date of presentation the claim form (see Rawson, cited above). The allegations of breach of the implied term of trust and confidence correspond to many of the (hitherto) missing allegations of protected steps and detriments, such as submitting GP notes and ignoring Occupational Health advice. Its allegation of “systematic and orchestrated silence” from 2009 went beyond a mere failure to act and suggested a positive cover-up. Once constructive dismissal formed part of the claim, the tribunal was required to explore the question of whether, objectively, the respondents had reasonable and proper cause for their actions. That is not quite the same as the Reason Why Question, which is subjective, but the evidence deployed in addressing the two legal tests would be likely to be similar. The issue of reasonable and proper cause is likely to be of particular interest to the tribunal when examining the events occurring recently before the claimant resigned. Historic events going back many years, whilst still relevant, are less likely to have been an effective cause of the claimant’s resignation. 69.2. Second, the claimant has provided further details of her complaint of whistleblowing detriment in her Scott Schedule. There is no suggestion that the claimant is required to amend her claim in order to advance these allegations. The protected disclosure detriment complaint introduced a factual enquiry that is still closer to the Reason Why Question. What was the reason why the Head Teacher resorted to “all kinds of tricks” to block the stress risk assessment? Was it because the claimant had made a disclosure to the HSE? This question would, of course, only be relevant to the events occurring after October 2012, when the disclosure to HSE was made. 69.3. Third, the claimant has clarified her complaint of direct disability discrimination, again, without any requirement to amend her claim. Under that legal heading, the tribunal must, again, ask itself why Mr Willsher acted as he did, before going on to ask whether that reason (or “something” in the Case No. 1802968/2013 20 language of section 15 of the Equality Act 2010) arose in consequence of the claimant’s disability. The actions under scrutiny are highly similar in nature to the alleged detrimental actions in the section 44 complaint. The only difference is that, instead of asking, “Was it because the claimant had raised health and safety concerns etc?”, the tribunal must ask, “Was it because of the alleged ‘something’ and did that ‘something’ arise in consequence of the claimant’s disability?” Mr Whittaker only needs to answer one allegation under this heading, compared to the many faced by Mr Willsher. There is no disability discrimination alleged against Mr Berry. Time limits

[70]I imagine for a moment that the claim in its amended form had all been included in the original claim form on 19 March 2013. For any detrimental act or failure “done” before 20 December 2012, the claimant would have needed an extension of time. If, however, an act occurring prior to 20 December 2012 was part of a series of similar acts culminating in act done on or after 20 December 2012, the claim would have been treated as having been presented within the time limit for the earlier act as well as for the later one.

Relevant law

[71]Allegation 16 in the Schedule might very well have been treated as being in time. It is, in my view, reasonably arguable that Mr Willsher’s ongoing omission to address historic events was something that was “done” every month following the monthly meetings leading up to the end of the claimant’s employment.

[72]It is reasonably arguable that Allegations 6 to 15 were part of a series of similar acts culminating in Allegation 16. The alleged perpetrators were the same. The nature of the allegation is, in each case, obstructing the process of properly investigating the causes of the claimant’s stress at work.

[73]In my view it is not reasonably arguable that Allegations 1 to 5 formed part of the same series as Allegations 6 to 16. Here are my reasons: 73.1. Different Head Teachers were involved. 73.2. It is highly unlikely that the previous Head Teachers acted in concert with Mr Willsher because they were not involved in the management of the claimant at the same time as he was. 73.3. The claimant’s case is that the detrimental acts or failures done by previous Head Teachers were on the grounds of different protected steps than those done by Mr Willsher. 73.4. Failure to carry out a stress risk assessment in 2004 is not the same as failure to carry out such an assessment in 2008. The circumstances were different. On the claimant’s own case, Mr Whittaker did not allow Mrs Ogley to bully the claimant. Nothing in particular is alleged to have happened during the 4-year period between 2004 and the commencement of Mr Willsher’s headship in 2008.

[74]Returning to Allegations 6 to 16, I must take into account not only the period of time from date of detriment to date of original presentation, but also the delay between original presentation of the claim and the application to amend. This delay is considerable. The first time the claimant sought to allege breach of section 44 of ERA was shortly before the preliminary hearing on 20 April 2017. More than 4 years had gone by since the claim form was originally presented to the tribunal. Case No. 1802968/2013 21

[75]I understand it to be the claimant’s case that the last detrimental act was a failure lasting, or recurring monthly, up until the termination of the claimant’s employment on 17 January 2014. Taking that assertion at face value, the last day for presenting the claim would have been 16 April 2014. In my view it would have been reasonably practicable for the claimant to have applied to amend to introduce her section 44 complaint by then. By that date the litigation was already 2 years old. There had been numerous preliminary hearings at which the claimant had been invited to clarify her claim. Whatever immediate crisis may have stood in the way of formulating the claim properly in March 2013 had, by that time, passed. Manner and timing of amendment application

[76]The claimant’s application to amend was made a long time after the claim was first presented. On the other hand, the proposed claim was initimated approximately 10 months before the date of the final hearing. Disadvantage to the claimant if amendment refused

[77]I now turn to the most important consideration, namely the relative disadvantage caused by either refusing or allowing the amendment.

[78]I proceed on the footing that, if I were to refuse the amendment, I might risk depriving the claimant of the opportunity to pursue a claim of substance. Allegations 6 to 16 are not obviously hopeless on their merits. The generalised arguments raised by the respondent are not, in my view, knockout blows. It is true that the claimant has not spelled out why it was not reasonably practicable to raise her concerns through a health and safety committee. But, given, the factual allegations she makes about the conduct of her trade union representatives, the tribunal might infer that the claimant had no confidence in an employer-union committee to take her health and safety concerns seriously. It is already part of her case that the respondents’ health and safety representative “kept quiet” about the School Stress Policy. It might also be open to her to argue that her health was so precarious that the alleged stressful environment amounted to circumstances of serious and imminent danger. An attempt by the claimant to take her own life in 2013 would be a frightening illustration of her fragile state of health at that time.

[79]There is still the very real question about whether Allegations 6 to 16 would have been presented within the time limit had they been included in the claim form. Because the claimant’s case on a “series of similar acts” is reasonably arguable, it is not appropriate for me to determine that question without hearing the evidence. For the purposes of this judgment, therefore, I must assume that Allegations 6 to 16 are capable of overcoming the time limit hurdle. On the other hand, I should not make a judgment, without hearing evidence, that deprives the respondents of the opportunity to argue that these allegations are out of time.

[80]I have taken into account the respondents’ detailed submissions in tabular form specifically addressing the individual allegations. In relation to Allegations 6 to 16, those submissions do not in my view alter the analysis. The respondents have set out what, in effect, would be their substantive response to the allegations in an attempt to demonstrate that they are not well-founded. But it would not be possible to uphold those submissions without making findings of Case No. 1802968/2013 22 fact. It would not be appropriate to make such findings without hearing the

evidence.

[81]In respect of Allegations 1 to 5, my view is different. Even if these allegations had been included in the original claim form, they would have been doomed to fail. This is because it is not even reasonably arguable that they formed part of a series of similar acts ending after 19 December 2012. So far as these allegations are concerned, refusing the amendment would result in no disadvantage to the claimant, as the complaints would be time barred in any event. Disadvantage to the respondents if amendment granted

[82]I do not think there would be much disadvantage to the respondents in allowing the claimant to pursue Allegations 6 to 16. So far as Mr Willsher’s acts and omissions are concerned, the Reason Why Question is now almost indistinguishable from the other issues already in the case. Mr Willsher already has to answer numerous allegations of direct disability discrimination, whistleblowing detriment and breach of trust and confidence. Determination of those allegations will shine a spotlight on Mr Willsher’s efforts – or lack of them – to conduct a stress risk assessment, and his motivation at each step of the way. The occasions on which the claimant raised health and safety concerns, or was absent on sick leave and submitted GP fit notes, will already have to be examined in detail as part of the background.

[83]There would be some disadvantage to the respondents in having to deal with the “reasonable practicability” question under section 44(1)(c)(ii) of ERA. They would have to adduce evidence of the appropriate channels by which they say the claimant could have raised her concerns. Such evidence would be unnecessary in the absence of a section 44 complaint. It is likely that the claimant, when questioned about safety representatives and safety committees, would start criticising her trade union representatives and the school health and safety representative. But criticisms of this kind will probably emerge in any event. Although her claim against the trade union has been struck out, it remains part of her case (see Scott Schedule Section 3, Allegations 39-41) that Mr Willsher and her union representatives jointly discriminated against her by falsifying meeting minutes and covering up the existence of the School Stress Policy.

[84]Amending the claim would put the respondent to some additional expense. I do not think that, in the context of this claim, the expense is likely to be significant. The respondent has already engaged in detail with the substance of the newlyformulated claim. If an amended ET3 response is necessary at all, it is likely to reproduce much of the same content. I would be surprised if the respondents’ witness statements would look substantially different, whether the amendment is granted or refused.

[85]I now consider the disadvantage that would be caused to the respondent by allowing the claimant to introduce Allegations 1 to 5. In my view it would be considerable. The respondent would have to call Mr Whittaker and Mr Berry to give evidence about matters occurring more than 10 years ago. In Mr Berry’s case, he would be asked to recall events going back 20 years or more. If the amendment were to be refused, the tribunal would be unlikely to concentrate in much detail on the period before Mr Willsher’s headship. These events Case No. 1802968/2013 23 happened so long before the claimant resigned that it is unlikely to have weighed significantly on her mind in comparison with the more recent events. Mr Whittaker only faces one allegation of disability discrimination and Mr Berry faces none at all. Balancing exercise – overall conclusion

[86]So far as Allegations 6 to 16 are concerned, the overriding objective points towards allowing the amendment dispute to be decided at the final hearing. The claimant should be permitted to argue her case as set out in the relevant parts of the Schedule to my case management order. The tribunal should hear all the evidence before deciding whether or not to allow the amendment. If it is the tribunal’s view that Allegations 6 to 16 would have been out of time even if they had been included in the original claim form, they are likely to refuse the amendment.

[87]I should make it clear that, had it not been for the decision in Aldridge, I would have allowed the amendment outright and left only the question of time limits to be determined at the final hearing. The only reason why I am not taking this step is that I am concerned that Aldridge could prevent time limit issues being raised once an amendment has been granted.

[88]I have sympathy for the respondents’ argument based on the extent of delay, but that consideration is less important than the extent of disadvantage caused by the amendment.

[89]In respect of Allegations 1 to 5, the scales fall heavily the other way. The amendment should be refused.

[90]I should make one thing clear in relation to Allegations 1 to 5. In reaching my overall decision I took into account my view that those detrimental acts and omissions were incapable of being part of the same series of similar acts as those alleged to have occurred later in time. But even if I had not held this view, my overall conclusion would have been the same. As with Allegations 6 to 16, there was considerable delay in making the amendment application and – crucially – the respondent would be put to a considerable disadvantage if Allegations 1 to 5 were pursued. ______________________________ Employment Judge Horne 2 October 2017

evidence.

[1]In these reasons, references to “the respondents” should be taken as references to the first and third respondents”. The preliminary issue

[2]By letter dated 26 May 2017, this case was listed for a preliminary hearing to determine a preliminary issue. Unfortunately, the parties do not agree about what that preliminary issue is. The respondent invited me to determine the question of whether the whole of the claimant’s complaint of race discrimination was presented within the time limit and, if so, whether the time limit should be extended. It is the claimant’s case that these questions fall outside the proper remit of the preliminary hearing. On Mr Shojaee’s reading of the letter of 26 May 2017, all complaints of discrimination connected with the alleged failure to conduct a stress risk assessment are excluded from the scope of the preliminary hearing. In respect of those complaints, it is argued, no finding can be made on time limit issues until the tribunal has heard the evidence. If there is such a thing as a “pre-preliminary issue”, it is this dispute. In order to resolve it, and the substantive preliminary issue (whichever it is), I must set out some of the procedural history of this case. Procedural history

[3]By a claim form presented on 19 March 2013 to the Regional Office in Leeds the claimant raised a number of complaints, including detriment on the ground of protected disclosures, disability discrimination and race discrimination.

[4]The claim form itself contained a brief narrative describing the various claims. The claim against the respondents was described as follows (with original spelling and grammar, but with editing where indicated): Case No. 1802968/2013 2 “(a) Failure of the Head Teacher to follow the school policy and procedures: (1) Managing Investigation, A Toolkit for Managers in Schools (2) Complaints and Grievance procedures At appropriate times when I kept raising my concerns with him regarding the unlawful conduct of the Head of Department for: (1) bullying and harassment that I was subjected to in an orchestrated manner by the Head of Department and some other members of the department. (2) Falsification of records in the department by the Head of the department. (3) Falsification of records to OFSTED by the Head of the department. (4) Class-fixing by Head of the department and one other member of the department. (5) Discriminatory treatment with regard to class sizes and the timetable. (6) Racial discrimination by Head of the department.

(b) Failure of the Head Teacher to follow the appropriate school policy and procedure, from March 2011 when it was clear to him beyond any shadow of the doubt that my stress was a work related stress, which are: … (3) School Stress Policy (4) Risk Assessment, Guidance for Head Teachers (5) HSE Management Standard in work related stress, which is an integral part of the School Stress Policy

(c) Failure of the Head Teacher in exercising his duty of care with his actions and omissions from march 2011 and its consequential harm on my health and recovery: [7 numbered allegations of misleading, misrepresentation and negligence]

(d) [Allegations that Human Resources assisted the Headteacher to cover up “earlier unlawful mistakes”]

(e) Failure of the Occupational Health (EH&WS) in maintaining its impartiality after April 2012 [(1) to (3) By negligence and by making various false records and statements] (4)… They forgot that the risk assessment is an integral part of the HSE Management Standard for work related stress. Risk assessment without accepting this fact is not a risk assessment, it is only another misrepresentation that he has been practicing to over the last two years to cover up his negligence of complying with his statutory responsibilities…

[5]To the claim form were appended various attachments, including documents to which the parties have referred as “Attachment 1” and “Attachment 2”. Here is how they were described in the claim form: Case No. 1802968/2013 3 “[Attachment 1] chronologically lists the series of events until September 2011. … These attachments are: 1. [Attachment 1] ‘Brief account of the Events’, this is a 16 page document which was produced originally at the end of January 2012 for my union representative at that time. It covers the major events since November 1993 until the end of September 2011 in chronological order. Then the last few pages outlines some events until January 2012 under the headings of “Lesson Observation Issues” and “Record Keeping”. 2. [Attachment 2] is an e-mail to Les Hall the Head of HR, representing the School at the Pre-claim Conciliation process. This e-mail clearly explains to what extend this dispute has been progressed at the conciliation process and what are the disagreements between the school and I at this stage.”

[6]Attachment 1 set out a number of incidents of alleged bad treatment. The dates of the various events were not always stated. The allegations in Attachment 1 have been characterised by the respondent in their submissions as follows (with added formatting):6.1 The 1993/1994 allegation concerning management allowances.

6.2 An allegation concerning non-payment of acting up allowances. The non-payment was described as less favourable treatment on the ground of sex and race. This dates back to 2003.

6.3 The lack of risk assessment of Joan Ogley allegation – management failed to address the actions of Joan Ogley. This could go back to 2005-2006.

6.4 The less favourable treatment from Joan Ogley compared to her treatment of teachers of Pakistani origin. This is said to have occurred for many years and it possibly goes back to 2008/2009.

6.5 An allegation is made about the terms of a Self- Evaluation Form prepared by Joan Ogley (Head of Maths) which singled out the alleged under-performance of teachers of Iranian origin. The criticism is said to be unfounded and an act of race discrimination. This dates back to September 2011.

6.6 The failure to provide Key Stage 4 results information requested by the Claimant. This dates to 2011 (and into January 2012).

6.7 The ‘misinformation letter’ dated 14.12.2011 written by Colin Willsher, Head Teacher. The claimant considers this deliberately set out an unfavourable view of her and was an act of discrimination.

[7]I have compared the respondents’ summary with the contents of the claim form and attachments. In general terms, I find that the summary fairly reflects what is Case No. 1802968/2013 4 set out in those documents. There are some areas, however, where the summary oversimplifies the allegations.

[8]I start with the respondents’ characterisation of the claim at paragraph 6.3. This appears to be taken from a passage in Attachment 1 which I call “the Risk Assessment Paragraph”. The Risk Assessment Paragraph can be found under the heading “Racial Discrimination Issues”, following allegations relating to the incidents in 1993/1994 and the spring term of 2003 (both of which were correctly summarised by the respondent). The narrative continued: “One important case that requires more comprehensive analysis to find out under which form of discrimination needs to be considered is the lack of a risk assessment and the provision of safeguards to prevent bullying towards me by [Mrs Ogley] when I was awarded a better grade in the first OFSTED inspection. Most importantly the lack of such provision for prevention of future hostility when signs of animosity of [Mrs Ogley] towards me clearly came to the surface. The most important question that comes to any reasonable person’s mind is whether these conducts indicate racial victimisation. I will leave further explanation to a later date.”

[9]In my view, the Risk Assessment Paragraph, taken with the claim form as a whole and other material, is a more reliable guide to what the claimant was raising than the respondents’ characterisation of it at paragraph 6.3 above. As to its meaning, see my Conclusions below.

[10]It was clear from Attachment 1 that the school where she worked had had a number of Headteachers over the years. One of these was Mr Berry, who left in 2003. Under the heading, “Mr Berry’s Headship”, the claimant referred to a meeting when Mr Berry made an apology to her and a promise to be watchful to prevent harassment by Mrs Ogley. “After that there was a period of relative calm between us, although her hostile attitude towards me remained intact. However, Mr Berry left the school in 2003 and this period of relative calm came to an end.” Then, under the heading, “Mr Whittaker’[s] Headship”, “During the headship of the next head teacher, Mr Whittaker, although [Mrs Ogley] gave momentum to her bullying behaviour and made few attempts to discredit me in the eyes of Mr Whittaker, she failed to manipulate him due to the strength of Mr Whittaker for standing against those members of staff at management level who were abusing their authority.” The claimant outlined two factors explaining a “reduction in bullying conduct” of Mrs Ogley, and described Mr Whittaker as “supportive”. Unfortunately, from the claimant’s point of view, Mr Whittaker left after a few years, to be replaced by Mr Willsher. It was on Mr Willsher’s appointment in about 2008 that “bullying conduct of [Mrs Ogley] towards me gained new momentum and moved from strength to strength.”

[11]The latest date mentioned in Attachment 1 was 11 January 2012. It was alleged that, at a meeting on that date: 11.1. Mr Willsher had “referred to lesson observations as evidence of part of a chain of inadequate lessons without even mentioning the satisfactory ones in between” and 11.2. Mr Willsher had claimed to have sent Key Stage 4 results information, but, as at the date of Attachment 1 still had not provided that information. Case No. 1802968/2013 5

[12]Attachment 2 was an e-mail dated 7 February 2013 from the claimant to Mr Hall. This e-mail drew attention to the need for the school to conduct a risk assessment. It alleged that there had been a cover up of unlawful conduct of the Head of Department and Head Teacher. It contained this paragraph: “You know that the risk assessment is a tool for addressing a specific incidence or health problem. This risk assessment in this dispute must address my work-related stress that was initiated by the negligence and lack of duty of care by the school and HR, which has now reached the stage of disability as a result of further negligence and lack of duty of care as well as successive cover up by the school and HR.”

[13]Attachment 2 went on to describe “deadlock” in the risk assessment process and to make further allegations of negligence, failure to follow the school’s stress policy and failure to comply with the Health and Safety Executive’s Management Standard. There was nothing in Attachment 2 that suggested that there was any connection between the failure to carry out a risk assessment and the claimant's race. Still less was there any suggestion that the claimant’s race had been a reason for the failure.

[14]Following a preliminary hearing on 29 July 2013, Employment Judge Grazin ordered the claimant to provide detailed further information about her complaint of race discrimination. By the time of a further preliminary hearing on 27 November 2013, for whatever reason, that information had not been provided in a form that the tribunal considered satisfactory. At that hearing, REJ Lee provided the claimant with a template for what she referred to as a “Scott Schedule” and ordered the claimant to complete it. Although the use of the phrase, “Scott Schedule” can cause confusion, especially among self-represented parties, I adopt it here, because all the parties to this case referred to the document by that name.

[15]The claimant duly submitted her Scott Schedule. It was divided into sections. Section 3 jointly covered the complaints under the Equality Act 2010 with regard to race and disability. With the assistance of a helpful legend, the Scott Schedule indicated whether each allegations was one of “race discrimination” or “disability discrimination”.

[16]Amongst the allegations set out in the Scott Schedule were (with original spelling): 16.1. Allegation 8 – June 2008 - “Refusal of Mr Willsher to carry out an appropriate Stress Risk Assessment, when he interviewed the Claimant over the pattern of missing days.” This was marked “DD”, meaning “disability discrimination”. 16.2. Allegation 11 – October 2011 – “Refusal of Mrs Rendle to make a request from the Head Teacher to carry out an appropriate risk Assessment, when she was aware of the details of the Claimant[’]s concerns”. This was marked as a further complaint of disability discrimination. 16.3. Allegation 13 – January 2012 – “Refusal of the Head Teacher, HR representative … to discuss the report of the Occupational Health and to carry out an appropriate Stress Risk Assessment”. The appropriate column in the Scott Schedule indicated that this was alleged to be disability discrimination. Case No. 1802968/2013 6 16.4. Allegation 14 – April 2012 – “Refusal of the Head Teacher, the HR representative … to discuss and appropriate Stress Risk Assessment.” Again, this was said to be disability discrimination. 16.5. Allegation 16 – June 2012-September 2012 – “Deceptions and falsification of the minutes of a meeting in July, and the conduct of the Head Teacher, HR…to deviate from the School Stress Policy in carrying out an appropriate Stress Risk Assessment. This was marked with the same abbreviation for disability discrimination. 16.6. Allegation 17 – October 2012 December 2012 – “Misrepresentations, false allegations and trickery by the Head Teacher and Head of HR to avoid following the School Stress Policy in completion of an appropriate Stress Risk Assessment.” This, too, was stated to be an allegation of disability discrimination.

[17]In due course, the claim was listed for a further preliminary hearing before REJ Lee. At the claimant’s request I did not read REJ Lee’s judgment or reasons. I do know, however, that REJ Lee determined, amongst other things, that the race discrimination complaint was out of time and the time limit should not be extended. That judgment was overturned on an appeal to the Employment Appeal Tribunal. In the meantime the claim was transferred to the North West region.

[18]After being stayed for a period of time to await a pending appeal to the Court of Appeal, the claim was listed for a preliminary hearing in front of Employment Judge Feeney. The preliminary hearing took place on 20 April 2017, following which Employment Judge Feeney caused a detailed written case management order and summary to be sent to the parties.

[19]At paragraph 2 of her summary of the hearing, EJ Feeney noted that, amongst the “several areas where there was no agreement”, was “Whether there should be a preliminary hearing to decide whether any matters were out of time…”. In relation to this area of disagreement, EJ Feeney recorded at paragraph 3(3): “(iii) In relation to the issue of race discrimination I decided that there was a more compelling case, the respondents saying that the claimant was off sick from November 2012 and submitted her claim in March 2013, that the last act of race discrimination identified was September 2012, and that in fact there could be no further actions after the claimant went off sick in November 2012. (iv) The claimant argues that the failure to do the stress risk assessment was race discrimination and was ongoing until the claimant resigned her employment in March 2013. However, the claimant was not able to point to anything in the ET1 and the Scott Schedule which stated that this claim was a race discrimination claim rather than a disability discrimination claim, and therefore I asked the claimant to clarify her position in relation to this within 14 days…following which I would make a final decision as to whether or not the matter was suitable for a preliminary hearing.”

[20]The summary was followed by a series of case management orders. One of these, at paragraph 5, was for the claimant to “advise whether she has already pleaded, either in the ET1, or the Scott Schedule, any race discrimination claim continuing up to March 2013, and if so to identify where that claim is pleaded. If Case No. 1802968/2013 7 the claimant accepts that it is not pleaded she can make an application to amend identifying whether she says it is a re-labelling of facts and issues already pleaded….or whether it is a new claim. If it is a new claim an application to amend should be made by 4 May which should include full particulars of the amendment sought.”

[21]Paragraph 11 provided for a preliminary hearing to take place on 19 June 2017. The paragraph continued: “The out of time issue regarding race discrimination may be added to this hearing pending the information to be supplied by the claimant referred to above.”

[22]Further submissions were delivered in writing. On the claimant’s behalf, Mr Shojaee contended: 22.1. That it would be misleading to decide the time limit issue by reference to the Scott Schedule. “The correct approach would be to look at the Claim Form ET1 first”. 22.2. “The complaint about the racial conducts of the respondents was pursued continuously by the claimant after September 2012 in a document called ‘Stress Risk Assessment’. 22.3. That Attachment 1 “clearly described” the complaint of racial discrimination. 22.4. Attachment 2 was “one of many correspondences exchanged between the claimant and the respondents regarding the completion of the document “stress risk assessment”, which the “Respondents were continuously blocking” by “creating various unreasonable deadlocks”. “The 2nd Attachment of the ET1 was one of the attempts of the claimant to break one of the deadlocks”. 22.5. Completing the stress risk assessment meant that the respondents should address all the stress factors identified by the claimant in that document, including allegations of “the racial conduct of the head of maths department and the head teacher”. 22.6. Refusal to complete an appropriate stress risk assessment was a continuing omission lasting into March 2013 and beyond.

[23]There was no attempt in Mr Shojaee’s submissions to ask for an amendment to the claim. It was his case that the claim form already raised a complaint that the failure to complete a stress risk assessment was an act of race discrimination.

[24]On reading the written submissions, Employment Judge Feeney caused a letter dated 26 May 2017 to be sent to the parties. The letter contained this passage: “The issue of whether the claimant's race discrimination claims, at least in part, are out of time will be decided at the preliminary hearing. The reasons are that the claimant relies on the stress risk assessment as a continuing thread to the end of her employment. However, many of the earlier matters relied on going back to 1993/4 are not obviously connected with this and therefore it is a legitimate enquiry as to whether they constitute a continuing state of affairs with the issues surrounding the stress risk assessment. Further, in the light of the Case No. 1802968/2013 8 overriding objective and in particular dealing with cases proportionately, a preliminary hearing to consider the point is appropriate.”

[25]In a subsequent letter to the parties, EJ Feeney indicated that the preliminary hearing would be used solely for the purpose of determining the time limit point. If the other matters remained in dispute, they would have to be determined at a further preliminary hearing. The preliminary hearing on 19 June 2017

[26]At the preliminary hearing I attempted to establish from Mr Shojaee what he would ask the tribunal to do in the event that the claimant’s primary submissions failed and the tribunal determined that the complaint of race discrimination had been presented after the expiry of the time limit. Did the claimant seek an extension of the time limit on “just and equitable” grounds?

[27]This was a recurring topic of conversation during the preliminary hearing. Here are some of the exchanges: 27.1. At the start of the hearing, I asked Mr Shojaee the above question in an attempt to clarify the issues. I also asked whether, if it was his intention to argue for an extension of time, he anticipated that the claimant would give any oral evidence on that issue. Mr Shojaee replied that the issue of time limits had already been to the Employment Appeal Tribunal and added, “I categorically say now that if anybody suggests…it is a very serious irregularity to suggest this is the outcome.” 27.2. I explained to Mr Shojaee that I understood that his primary case was that it was inappropriate to decide the time limit issue at a preliminary hearing and that in any event he was arguing that the claim had been presented within the time limit. I explained the concept of advancing arguments in the alternative, and sought to reassure the claimant that making submissions on an extension of time would not harm her primary case. I was simply giving the claimant “another way to win”. Having heard this explanation, Mr Shojaee replied, “it is a serious irregularity to decide that it is out of time. An employment judge has decided that it is in time. I am suspicious of you. You are insisting on a point that is totally irrelevant.” 27.3. I then offered to the claimant to conduct the preliminary hearing in separate stages, so that the tribunal would initially decide whether it was reasonably arguable that the claim had been presented in time. I explained the effect of such an approach. Only if the claimant lost on his main points would I even consider the question of whether the time limit should be extended. Mr Shojaee did not engage with this proposal directly. Instead he referred to the overriding objective, alleged that his rights under

Article 6 of the European Convention

had been denied since 2013 by the “scandalous conduct of the respondent’s representatives, by lies, deception and misleading the tribunal.” He added that “irregularities have all been infused into this tribunals by lies, deception and misleading arguments” in order to prolong the case. The respondent’s solicitors and three barristers from the same chambers had, the claimant alleged, breached their professional codes of conduct by lying. As an example, the claimant referred to the fact that he Case No. 1802968/2013 9 had not been given advance warning that Mr Smith would be representing the respondent at today’s hearing. 27.4. Before submissions began, Mr Smith asked to re-visit the question of whether the tribunal would be dealing with the “just and equitable” extension of time point and, if so, whether the claimant would be giving oral evidence. This prompted a rather dysfunctional exchange. I observed that it was up to the claimant to decide whether to give evidence. Mr Shojaee interrupted by stating that the respondent knew full well that the claimant could not give evidence. I asked Mr Smith if, at the hearing before Employment Judge Feeney, there had been any discussion of the need for oral evidence in relation to this issue. After taking brief instructions, he replied that there had been no such discussion. Mr Smith stated that he was not insisting that the claimant give evidence and was merely trying to assist. At this point Mr Shojaee interrupted again, shouting, “This is scandalous!” He then started making an application to have the respondent’s response struck out on the ground of allegedly scandalous conduct. I told Mr Shojaee that I would hear such an application at the conclusion of the hearing if time permitted. Mr Shojaee continued shouting, saying that the respondent had “been forcing the judges to abuse their position”. He added, “It is your duty to protect the judiciary from the criminal offences of the respondent.” 27.5. By the time the Mr Shojaee had made his submissions in relation to the time limit, I was concerned that he was needlessly manoeuvring the claimant into a disadvantageous position from which she might not be able to return. To re-open the door to an extension of time, I asked both parties whether, at the hearing before Regional Employment Judge Lee, there had been any oral evidence on the question of whether it had been just and equitable to extend time. Mr Shojaee asked why I wanted to know. I explained that my query was just in case it ever became necessary to consider the question of whether it was just and equitable to extend the time limit. Mr Shojaee began shouting again, saying, “Don’t mention the need for an extension of time”. 27.6. During the respondents’ submissions, Mr Smith urged me to decide the “just and equitable” point at that hearing. He submitted that, if that point were to be decided at the next preliminary hearing, the respondent would incur additional cost. It had been the claimant’s choice not to give evidence at this hearing. 27.7. On this point I initially disagreed with the respondent. Once I had given judgment on the time limit point I announced a proposed case management order. The “just and equitable” issue would be determined at the next hearing and I would make provision for the claimant to send a witness statement in advance. I explained that I would make these orders to give the claimant an opportunity to change her mind if she wished to do so. To this, Mr Shojaee said, “I am never going to change my mind. The decision is totally perverse. I am not asking the tribunal to extend the time limit.” He then shouted, “Please, never mention it again”.

hearing.

[28]One other point of note arose during the respondents’ submissions. Mr Smith reminded the tribunal and the claimant that she had an opportunity to apply to amend her claim to include a complaint of race discrimination by failing to carry out a risk assessment. Mr Shojaee responded to Mr Smith’s submissions, but did not make any application to amend the claim. Case No. 1802968/2013 10 Relevant law Overriding objective

Relevant law

[29]Rule 2 of the Employment Tribunal Rules of Procedure 2013 sets out the overriding objective as follows: The overriding objective of these Rules is to enable Employment Tribunals to deal with cases fairly and justly. 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;

(d) avoiding delay, so far as compatible with proper consideration of the issues; and

[30]Rule 29 of the 2013 Rules gives tribunals the power to make case management orders, which may vary, suspend, or set aside an earlier case management order where necessary in the interests of justice.

[31]In Serco Ltd v. Wells

UKEAT/0330/15

, HHJ Hand QC ruled that the power to vary an earlier order is not untrammelled. Where an employment judge makes an order, another employment judge of equivalent jurisdiction may not vary or revoke that order unless(a) there has been a material change of circumstances since the order was made or

(b) the order has been based on either a misstatement (of fact or law) an omission to state relevant fact or

(c) there is some other occasion making revocation necessary in the interests of justice – occasions falling into this latter category will be rare and out of the ordinary. Adjudicating on claims

[32]A tribunal must not adjudicate on a claim that is not before it: Chapman v. Simon [1993] EWCA Civ 37.

[33]In Chandhok v. Tirkey UKEAT0190/14, Langstaff P observed:17. ….Care must be taken to avoid such undue formalism as prevents a Tribunal getting to grips with those issues which really divide the parties. However, all that said, the starting point is that the parties must set out the essence of their respective cases on paper in respectively the ET1 and the answer to it. If it were not so, then there would be no obvious principle by which reference to any further document (witness statement, or the like) could be restricted. Such restriction is needed to keep litigation within sensible bounds, and to Case No. 1802968/2013 11 ensure that a degree of informality does not become unbridled licence. The ET1 and ET3 have an important function in ensuring that a claim is brought, and responded to, within stringent time limits. If a “claim” or a “case” is to be understood as being far wider than that which is set out in the ET1 or ET3, it would be open to a litigant after the expiry of any relevant time limit to assert that the case now put had all along been made, because it was “their case”, and in order to argue that the time limit had no application to that case could point to other documents or statements, not contained within the claim form. ...

[34]In Ali v. Office for National Statistics

[2005] IRLR 201

[35]In Amin v Wincanton Group Ltd

UKEAT/0508/10/DA

, HHJ Serota QC distinguished between a claim that is “pleaded but poorly particularised” and a Chapman v. Simon case, where the complaint is not pleaded at all. In the former case, the claimant is not required to amend the claim. The lack of proper particulars does not affect the tribunal’s jurisdiction. The remedy in an appropriate case would be to strike out the relevant part of the claim. It is, HHJ Serota observed, “clearly undesirable that important issues in Employment Tribunal proceedings should be determined by pleading points”.

[36]In Amin, HHJ Serota QC also had this to say about the function of further particulars of a claim: “The function of Particulars is to limit and define issues to be tried, and to inform the other side of the case it has to meet, and avoid surprises. Particulars will limit the generality of a pleading.”

[37]In my view, Amin is authority for saying that further particulars can be used as an indication of whether or not a claim form raises a particular issue. The starting point is always the claim form, but the further particulars may limit its scope. Take, for example, a claim form that makes a general assertion that an act or omission amounts to discrimination, without specifying which form of discrimination is alleged. Case No. 1802968/2013 12 Later, in a formal document, the claimant clarifies that that act or omission amounts to discrimination based on an identified protected characteristic (such as disability discrimination). It seems to me, as a matter of principle, open to the tribunal to conclude in the light of that document that the form of discrimination alleged in the original claim form was based on that protected characteristic and not a different protected characteristic (such as race). Time limits

[38]Section 123 of EqA provides, so far as is relevant: (1)… proceedings on a complaint [of discrimination] may not be brought after the end of—(a) the period of 3 months starting with the date of the act to which the complaint relates, or

(b) such other period as the employment tribunal thinks just and equitable. … (3) For the purposes of this section— (a) conduct extending over a period is to be treated as done at the end of the period; (b) failure to do something is to be treated as occurring when the person in question decided on it. (4) In the absence of evidence to the contrary, a person (P) is to be taken to decide on failure to do something— (a) when P does an act inconsistent with doing it, or (b) if P does no inconsistent act, on the expiry of the period in which P might reasonably have been expected to do it.

[39]In Commissioner of Police of the Metropolis v Hendricks

[2002] EWCA Civ 1686

;

[2003] ICR 530

, a police officer alleged racial and sexual discrimination Mummery LJ, with whom May LJ and Judge LJ agreed, gave guidance on the correct approach to “an act of extending over a period”. I shall read out the

[48][the claimant] is, in my view, entitled to pursue her claim beyond this preliminary stage on the basis that the burden is on her to prove, either by direct evidence or by inference from primary facts, that the numerous alleged incidents of discrimination are linked to one another and that they are evidence of a continuing discriminatory state of affairs covered by the concept of an ‘act extending over a period’…

[52]... The question is whether that is ‘an act extending over a period’ as distinct from a succession of unconnected or isolated specific acts, for which time would be given to run from the date when each specific act was committed" 40. In considering whether separate incidents form part of "an act extending over a period”, one relevant but not conclusive factor is whether the same individuals or different individuals were involved in those incidents: see British Medical Association v Chaudhary, EAT, 24 March 2004 (unreported,

UKEAT/1351/01/DA

Case No. 1802968/2013 13 & UKEAT/0804/02DA) at paragraph 208, cited with approval by the Court of Appeal in Aziz v. FDA

[2010] EWCA Civ 304

. 41. A one-off act with continuing consequences is not the same as an act extending over a period: Sougrin v Haringey Health Authority

[1992] IRLR 416

[1992] ICR 650

, CA. 42. Claims of discrimination are notoriously fact-sensitive. It is well established, for example, that it is inappropriate to strike out claims – and discrimination claims in particular – where there are central disputes of fact: Anyanwu & another v South Bank Students Union

[2001] ICR 391

. It will only be in an exceptional case that such a claim will be struck out as having no reasonable prospect of success where the central facts are in dispute: Ezsias v. North Glamorgan NHS Trust

[2007] ICR 1126

, CA. Tribunals must remind themselves that discrimination is seldom admitted and the discriminator may not even be aware that it is happening. The tribunal should consider all of the evidence to see whether appropriate inferences can be drawn. Ordinarily, therefore, the question of whether an act extends over a period should be determined by the tribunal at the final hearing having heard the evidence.43. Where time limits fall to be determined at a preliminary hearing, the tribunal should ask itself whether it is reasonably arguable that the act of discrimination in question formed part of an act extending over a period. If it is reasonably arguable, the matter should not be decided until the final hearing: Aziz (cited above).

44. Where it is clear, on a fair and reasonable reading of the ET1 as a whole, that a claimant is alleging continuing discrimination and that the final specific allegation in that context is at a time within the primary time limit, that may be sufficient to determine that a claimant's case is potentially timeous (Charles v Tesco Stores Ltd

[2012] EWCA Civ 1663

, Mummery LJ paras 18, 22 and 24). The relevant question is “what the claim form meant to a reasonable reader”: para 24.

45. It is not enough for a claimant to make a bare assertion that an act extends over a period. The assertion needs to be reasonably arguable: Ma v Merck Sharp and Dohme

[2008] EWCA Civ 1426

. It is sufficient that the claimant has asserted the nature of the overarching act of the respondents and supported that assertion with adequate specification of the acts of the individual employees that are said to form the basis upon which a continuing act may be established: City of Edinburgh Council v. Kaur

[2013] CSIH 32

46. The “just and equitable” extension of time involves the exercise of discretion by the tribunal. It is for the claimant to persuade the tribunal to exercise its discretion in his favour: Robertson v. Bexley Community Centre

[2003] EWCA Civ 576

. There is, however, no rule of law as to how generously or sparingly that discretion should be exercised: Chief Constable of Lincolnshire Police v. Caston

[2009] EWCA Civ 1298

. 47. Tribunals considering an extension of the time limit may find it helpful to refer to the factors set out in section 33 of the Limitation Act 1980 (extension of the limitation period in personal injury cases): British Coal Corpn v. Keeble

[1997] IRLR 336

. These factors include: 47.1. the length of and reasons for the delay; 47.2. the effect of the delay on the cogency of the evidence; Case No. 1802968/2013 14 47.3. the steps which the claimant took to obtain legal advice; 47.4. how promptly the claimant acted once he knew of the facts giving rise to the claim; and 47.5. the extent to which the respondent has complied with requests for further information. Conclusions The issue for determination 48. I address first of all the dispute over the remit of the preliminary hearing. I do not consider myself bound by Employment Judge Feeney to hold that any part of the race discrimination claim is, even arguably, in time. I accept that the 26 May 2017 letter, read as a whole, gave the impression that Employment Judge Feeney had some sympathy for the claimant’s position in relation to some of the allegations of race discrimination. Had Employment Judge Feeney conducted the preliminary hearing herself, it would not have been a surprising conclusion if she had allowed some of the complaints to go forward on the basis that they were connected to the allegation of failure to carry out a risk assessment. That is not the same, however, as saying that Employment Judge Feeney was attempting to circumscribe the decision for another employment judge and prevent that judge from finding that the whole of the race discrimination claim was presented too late. I reach this conclusion for the following reasons: 48.1. It seems to me that by using the words “at least in part” (with my emphasis), Employment Judge Feeney was leaving open the possibility that the whole of the race discrimination might be found at the preliminary hearing to have been presented out of time. Otherwise, the words, “at least” would have been redundant. 48.2. EJ Feeney was not, in my view, expressing a concluded opinion that the omission to carry out a stress risk assessment was actually a “continuing thread to the end of her employment”. Nor was she expressing a conclusion as to whether that was an assertion that was reasonably arguable. She was characterising the claimant's argument as she understood it. 48.3. The quoted passage appears to be EJ Feeney’s reasons for considering some time limit issues at a preliminary hearing. It was the claimant’s position that a preliminary hearing was completely inappropriate for any time limit issues at all. EJ Feeney therefore needed to explain why time limits were on the agenda. The language of the letter is entirely appropriate for that purpose. It is not, however, nearly precise enough to be a demarcation of those complaints that would safely proceed and those complaints that were at risk of dismissal at the preliminary hearing stage. The phrase, “continuing state of affairs with the issues surrounding the Stress risk assessment” does not lend itself to precise interpretation. I doubt very much whether EJ Feeney intended it to be subject to scrutiny in this way. But its precise meaning would have to be ascertained had she wished it to be a fetter on the discretion of another employment judge. 48.4. If the claimant’s interpretation is correct, EJ Feeney must have decided on the papers that certain complaints of race discrimination should go forward to the final hearing regardless of any arguments made at the preliminary hearing. Yet, shortly after supposedly making that decision, she Case No. 1802968/2013 15 allocated an entire day of hearing time to decide which if any complaints should be allowed to proceed. It seems to me more likely that EJ Feeney would have left the entire time limit issue to the employment judge conducting the preliminary hearing. 49. I therefore consider that it is open to me to find that the whole of the race discrimination complaint was presented after the time limit expired. Needless to say, I must not take such a course if the claimant manages to cross the low threshold required of her at a preliminary hearing. Interpreting the claim form 50. In my view, the claim form and attachments cannot reasonably be understood as containing an overarching complaint of race discrimination by failure to carry out a stress risk assessment. I have read the claim form as a whole together with Attachments 1 and 2. A reasonable reader of these documents would not understand the claimant to have been complaining that the respondents’ failure to carry out a risk assessment was an act of race discrimination. Here are my reasons: 50.1. The claim form itself made a specific allegation of “Racial discrimination by Head of the department”. It did not make any allegation of race discrimination by failing to carry out a stress risk assessment. 50.2. There was nothing in the descriptions of Attachment 1 or Attachment 2 to suggest that those documents contained any allegation that the failure to conduct a risk assessment was an act of race discrimination. In fact, the description of Attachment 1 suggests the contrary. A reader of that description would think that the claimant had included it to explain the roots of her work related stress and how she had acquired the protected characteristic of disability. 50.3. In my view, the Risk Assessment Paragraph in Attachment 1 does not significantly alter the analysis. At first sight it lends some support to the claimant’s argument. If one looked at the first sentence in isolation, it could be construed as meaning that the claimant reserved her right to contend that the failure to carry out a risk assessment was itself some act of discrimination although, at that stage, she did not know what kind of discrimination it was. In my view, however, such an interpretation does not fit easily with the rest of the paragraph. To my mind, the true meaning of the paragraph is clear from the sentence, “The most important question that comes to any reasonable person’s mind is whether these conducts indicate racial victimisation.” The phrase, “these conducts” is a reference to actual behaviour, rather than a failure to do something. A reasonable reader would understand the claimant to be referring to the conduct of Mrs Ogley. 50.4. My view is reinforced by Attachment 2. It referred to the claimant being disabled. It made many allegations of breach of legal duty in connection with the failure to carry out a risk assessment. Race discrimination was not one of them. It is clear from the description of Attachment 2 that Mr Shojaee sent this e-mail as part of a conciliation process, where one would expect him to articulate a complaint of race discrimination if he thought it was ongoing. 50.5. I also think that my interpretation is consistent with the Scott Schedule. The numerous allegations related to the stress risk assessment were all stated to be complaints of disability discrimination, not race discrimination. Case No. 1802968/2013 16 This express categorisation in a formal document limited the scope of the claim by relying on one protected characteristic to the exclusion of another. The claimant’s considered position in the Scott Schedule should be given particular weight because the Scott Schedule was the first occasion in which the claimant unreservedly stated that she was alleging a particular form of discrimination with regard to the stress risk assessment. The final sentence of the Risk Assessment Paragraph indicated that the claimant would clarify her case at a later date. The Scott Schedule was her means of doing that. 50.6. The Scott Schedule also fits into the broad theme that the risk assessment was necessary to protect the claimant’s health from the alleged racially discriminatory acts of Mrs Ogley. 50.7. In my opinion, what the claim form and its Attachments were saying was that, had a stress risk assessment been properly carried out at the appropriate time, the risk assessment would have revealed that acts of race discrimination had taken place and would have protected the claimant against possible future discriminatory acts. That is not the same as saying that the failure to carry out a risk assessment was an act of race discrimination. 51. Despite being clearly prompted to do so by both EJ Feeney and counsel for the respondents, the claimant did not make any application to amend her claim to include an allegation of race discrimination by failing to carry out a risk assessment. Principal conclusion – whole race discrimination complaint out of time 52. The claim form was presented on 19 March 2013. The time limit is three months. Unless one of the acts of discrimination can be said to have been part of an act extending over a period ending on or after 20 December 2012, the claimant will need an extension of time.

[53]Having decided that the claim form did not allege that the ongoing failure to conduct a stress risk assessment was race discrimination, I now turn to the complaints of race discrimination that the claim form actually did raise. In my view, the last act of race discrimination mentioned in the claim form and Attachments was stated to have occurred in January 2012. This date comes from the description of Attachment 1 and from the dates of two incidents set out in Attachment 1 itself. The claimant must make out a reasonably arguable case that this, or an earlier alleged act of race discrimination, formed part of an act extending over a period.

[54]I have considered the latest two allegations in time. These are the alleged failure to provide Key Stage 4 results information (ongoing as at January 2012) and the making of a remark about the standard of lessons at a meeting on 11 January 2012. In my view, the time limit for Key Stage 4 allegation would run from the expiry of a reasonable period for providing that information. It was clear from Attachment 1 that, by January 2012, the claimant’s case was a reasonable period had already expired. As for the remark on 11 January 2012, this appears to have been an act done on that day.

[55]The claimant relies on the respondent’s continuing omission to carry out a stress risk assessment, which lasted beyond January 2012 and about which the claimant was clearly complaining in her claim form. Mr Shojaee makes the case that the failure to conduct such an assessment had the effect of making Case No. 1802968/2013 17 the January 2012 acts of alleged race discrimination, and the acts that went before them, into an act extending over a period. This is, Mr Shojaee says, an “overarching factor” linking the acts together and making them last until the presentation of the claim. I have to decide whether that case is reasonably arguable.

[56]Before expressing my view on this point, I make a number of assumptions for the purpose of this hearing. I assume that the claimant will establish: 56.1. that the respondents’ written policies required them respondent to carry out a stress risk assessment; 56.2. that requirement was a continuing obligation lasting until the end of the claimant's employment; 56.3. that the causes of the claimant’s stress did in fact include acts of race discrimination as set out in the claim form and Attachment 1; 56.4. that, had a stress risk assessment been done properly, it would have prompted an investigation into the claimant’s allegations of race discrimination, which would have been upheld; and 56.5. that, following a properly-completed stress risk assessment, the claimant would not have been subjected to any further acts of race discrimination.

[57]The claimant will not establish that the failure to conduct a stress risk assessment was itself racially discriminatory.

[58]What all this means is that there was a period of time lasting beyond December 2012 in which historic acts of discrimination remained wrongly unacknowledged. But that does not mean that any of those earlier acts of discrimination occurred any later than they actually did. Such a contention would not, in my view, be even reasonably arguable.

[59]It might be said that the respondent’s failure to address previous acts of discrimination had ongoing consequences for the claimant’s state of health. That is not the same as an act extending over a period – see Sougrin.

[60]It is not reasonably arguable that the risk of future acts of discrimination transformed the past incidents into an act extending over a period. The position might conceivably been different had a further act of race discrimination occurred shortly before presentation of the claim form. The claimant might have argued that the further act, and the January 2012 acts, were part of the same continuing state of affairs perpetuated by the lack of proper investigation. (I would not wish it to be thought that I would have allowed the earlier complaints to proceed to a final hearing on this basis. As will be seen under my alternative conclusions, I also think that the link is too tenuous.) But that was not the case here. Nothing is alleged to have happened after January 2012.

[61]For those reasons I find that there is not even a reasonably arguable case that any part of the race discrimination complaint formed part of an act extending over a period that ended on or after 19 December 2012. The whole complaint is out of time. Without an extension on “just and equitable” grounds, the tribunal has no jurisdiction to hear it. Alternative conclusions Case No. 1802968/2013 18

[62]I am acutely conscious that this claim has already suffered from long delays. There has already been one decision on time limits that has been overturned by the Employment Appeal Tribunal. A final hearing has been listed to begin in February 2018. It is of vital importance that that hearing should proceed. Nobody wants a further preliminary hearing on time limit issues and such a hearing (which itself might be subject to appeal) would endanger the final hearing date. I have therefore attempted to make provision for the possibility that my judgment might be appealed and be found to be wrong. It may assist in avoiding delay if I record here (as I also announced to the parties) what my conclusions would have been had I not found the whole race discrimination complaint to be out of time.

[63]For these purposes, I assume for a moment that I am wrong in my interpretation of EJ Feeney’s letter of 26 May 2017. What if I was constrained to allow all allegations to proceed to the final hearing, provided that they “constitute a continuing state of affairs with the issues surrounding the Stress risk assessment?”

[64]I have considered whether it is reasonably arguable that the alleged discrimination ending with the two incidents in January 2012 is connected to an overarching factor of failure to carry out a stress risk assessment. In my view it is not even reasonably arguable. Failure to carry out a stress risk assessment is of a completely different character to the kind of bullying outlined in Attachment 1. The fact that Mr Willsher is implicated in other allegations is relevant, but that factor is not determinative. The only common factor, taking the claimant’s case at its highest, is that the incidents should have been investigated under the risk assessment process, but were not. That does not, in my view, even arguably make the incidents any less isolated than they were.

[65]The next hypothetical scenario I have imagined is that I was wrong in my interpretation of the claim form. I suppose for a moment that the correct analysis is that the claim form could properly be understood as bringing a claim that the failure to conduct a stress risk assessment was discriminatory. In that case I would reach a slightly different conclusion. I would hold that it is reasonably arguable that there was a series of refusals, as opposed to one failure (that must be treated as having been “done” on the expiry of a reasonable period), and that that series formed part of a continuing state of affairs lasting beyond 19 December 2012. The claim in respect of that allegation would therefore have been in time.

[66]For the reasons already given, I would not have found it even reasonably arguable that the other acts of discrimination ending on 11 January 2012 formed part of the same state of affairs. An extension of time would have been required.

[67]In case I am wrong about that conclusion, I would hold that any reasonably arguable continuing state of affairs went back as far as the beginning of Mr Willsher’s appointment as Headteacher. It is clear from the claim form that, under Mr Berry and Mr Whittaker, there were periods where Mrs Ogley was unable to bully the claimant because the Headteacher was standing up to her. Any tribunal, in my view, will find that these periods of calm broke the connection between one discriminatory state of affairs and the next. It is not reasonably arguable to contend otherwise. Extension of time Case No. 1802968/2013 19

[68]There is, in my view, a short answer to this point. It is for the claimant to persuade the tribunal to exercise its discretion to extend the time limit. The claimant refused even to try. These were not loose words in the heat of the moment. As my summary of the hearing shows, Mr Shojaee was given every opportunity to engage with this question. Attempts to secure his effective participation on this issue included more than one explanation of the importance of an extension of time, reassurance that he could argue for an extension of time without harming his case on whether an extension was needed in the first place, a further hearing to enable more effective preparation and a proposed case management order for a witness statement in case he changed his mind. The latter two steps were done in the face of objection by the respondent. Still Mr Shojaee refused. There is therefore no argument from the claimant that could persuade me to extend the time limit and I must therefore refuse the extension.

[69]I have pondered whether I should consider an extension of time on my own initiative, even if such a course would be against the claimant’s wishes. My conclusion is that it would not be appropriate take this course. In case I am wrong on this point, however, it may be of assistance for readers of this judgment to know how I would have decided the “just and equitable” question on basis of the material before me. I would not have considered it just and equitable to extend the time limit. My reasons are: 69.1. There has been a 13-month delay from the latest alleged act of race discrimination (11 January 2012) to the presentation of the claim on 19 March 2013. The delay from the earliest act of alleged discrimination is approximately 20 years. 69.2. The claimant has not provided any explanation for the delay. 69.3. The acts of race discrimination are set out in a document prepared in January 2012. The claimant therefore knew about them at the time that document was prepared. 69.4. A complaint of race discrimination introduces a considerable new area of factual enquiry, namely whether teachers of Iranian origin were treated less favourably than teachers of Pakistani origin. This will involve examination of how an Iranian colleague of the claimant’s was treated and how the Pakistani teachers were treated. Evidence about the relative treatment of these groups is likely to be far less cogent now than it would have been had the claim been presented on time. 69.5. It will be necessary to examine the mental processes of the respondents’ witnesses in relation to decisions taken years before the claim was presented. In the case of events pre-dating Mr Willsher’s appointment, witnesses would have to be called from other schools or even from retirement. This will put the respondent at a considerable disadvantage.

[70]For these reasons it is my conclusion that the tribunal has no jurisdiction to consider any of the complaint of race discrimination. ______________________________ Employment Judge Horne Case No. 1802968/2013 20 4 July 2017

[71]Application Case No. 1802968/2013 2 Except where it is made in the course of a hearing, an application for reconsideration shall be presented in writing … and shall set out why reconsideration of the original decision is necessary.

[72]Process(1) An Employment Judge shall consider any application made under rule 71. If the Judge considers that there is no reasonable prospect of the original decision being varied or revoked … the application shall be refused and the Tribunal shall inform the parties of the refusal. Otherwise, the Tribunal shall send a notice to the parties setting a time limit for any response to the application by the other parties and seeking the views of the parties on whether the application can be determined without a hearing…

(2) If the application has not been refused under paragraph (1), the original decision shall be reconsidered at a hearing unless [irrelevant] … 3. Rule 6 provides that a failure to comply with any provision of the Rules (apart from some irrelevant exceptions) does not of itself render void the proceedings or any step taken in the proceedings. In the case of such non-compliance, the Tribunal may take such action as it considers just, which may include (by paragraph (a)) waiving or varying the requirement. Can the judgment be reconsidered today? 4. I canvassed with the parties whether there was any impediment in the Rules to me conducting a reconsideration hearing today. It is the agreed position of both parties that at today’s hearing I am in a position lawfully to make a decision as to whether to revoke the judgment. Both parties agree that no further procedural step is required. They have come to that mutual understanding via two different routes: 4.1. The claimant's case is that rule 70 enables a Tribunal, where an application for reconsideration is made at a hearing, simply to make a decision on reconsideration without preliminary consideration or a notice being sent to any other party. 4.2. The respondents are of the view that I must give preliminary consideration to the application, and unless I decide that there is no reasonable prospect of the original decision being varied or revoked, I must then hold a reconsideration hearing. Rule 72(1) provides that a notice must be sent to the other parties. The respondents, however, consent to my dis-applying these requirements under the provisions of rule 6(a). 5. I favour the second analysis. Either way, the parties are agreed that I can make the decision now without anything more having to be done. Grounds for reconsideration 6. The claimant's application was initially set out in an email dated 3 July 2017 which I have marked “C1”. The grounds set out in that application were twofold. Ground 1 was that there had been intentional collaboration between me and the respondent’s legal representatives to delay the final hearing amounting to misconduct in public office. Ground 2 was that the decision was perverse. 7. In his oral submissions today, Mr Shojaee expanded on Ground 2. Essentially his argument is that I acted perversely by failing to take into account a relevant Case No. 1802968/2013 3 consideration that he had been urging upon me at the last preliminary hearing. That consideration was that there had been a continuing omission to conduct a stress risk assessment from September 2012 until the date on which the claim was presented. He developed his argument by saying that there was a reference in Attachment 2 to the stress risk assessment, and that that should have been interpreted as including a reference to the causes of stress, one of which was alleged race discrimination. 8. What I have to do is decide whether in the light of those grounds it is necessary in the interests of justice to revoke or vary the original judgment. I will deal with each ground in turn. Conclusions Ground 1 9. It is not in the interests of justice to revoke the judgment on the ground of perceived misconduct in public office. I did not intentionally collaborate with the respondent’s legal representatives. That is a serious accusation and is not supported by any evidence. If the claimant wants to pursue it then he has other legal avenues open to him, but a reconsideration application in front of me is not one of them. Ground 2 10. I do not agree that my original decision was perverse. I did take into account the allegation of a continuing omission to conduct a stress risk assessment. 11. These written reasons are to be accompanied by the written reasons for the original decision. Readers of those reasons will see that I took into account the claimant’s contention that there was a continuing omission. 12. At the time I confirmed the judgment on reconsideration, I had not finalised the written reasons for that judgment. I therefore quoted from the typed transcript of the oral reasons I gave on 19 June 2017. The purpose was to demonstrate that, even in my oral reasons, I had given full weight to the “continuing omission” argument. The passages I quoted were as follows: 12.1. “The claim form does assert that the stress risk assessment should have investigated “incidence” (which I took the claimant to mean “incidents”) of race discrimination, and that, had it been done properly, that investigation would have revealed that acts of discrimination had taken place. That is not the same as saying that the failure to carry out a risk assessment was an act of discrimination.” This was a quote from Attachment 2, which was the document on which the claimant relied to show that he had alleged a continuing omission. 12.2. The second passage was a list of assumptions that I would make for the purpose of the preliminary hearing. This was because I was aware of the test for deciding time limit questions in discrimination cases at a preliminary hearing and the requirement to take the claimant's case at its highest. “I assume that for the purpose of this hearing the claimant will establish that the policy required the respondent to carry out a stress risk assessment. Second, that the policy required that to be done as a continuing obligation right the way until the end of the claimant's employment.” I had, therefore, assumed in the claimant’s favour that she could establish a continuing omission lasting beyond September 2012 until the date of presentation of the claim. Case No. 1802968/2013 4 12.3. The next passage was part of my reasoning for an alternative conclusion in the event that my primary conclusion was held to be wrong. “If I am wrong in my principal conclusion, this is how I would reason my decision. I suppose for a moment that the correct analysis is that the claim form could properly be understood as bringing a claim that the failure to conduct a stress risk assessment was discriminatory. In that case I would reach a slightly different conclusion. I would hold that it is at least reasonably arguable that that particular allegation was brought within the time limit. It is reasonably arguable that there was an ongoing failure to conduct a stress risk assessment which lasted until the end of the claimant's employment.” 13. For those reasons I do not think that I failed to take into account the consideration urged upon me by Mr Shojaee today. I do not agree that my decision was perverse and I therefore do not consider it in the interests of justice to revoke the judgment on that ground either. _____________________________ Employment Judge Horne 4 July 2017 City of Bradford MDC

[2]The Governing Body of Belle Vue Boys School Heard at: Manchester On: 27 February 2018 Before: Employment Judge Holmes Ms F Crane Mr T A Henry REPRESENTATION: Claimant: Mr R Shojaee, Husband Respondents: Ms R Mellor, Counsel

[1]The Tribunal has considered, with the agreement of the parties at this stage in the case, the date upon which the claimant is to be regarded as a person with a relevant disability for the purposes of section 6 of the Equality Act 2010. These claims arise from proceedings that the claimant has started in which she claims, amongst other claims, disability discrimination arising out of her employment as a maths teacher at the Belle Vue School in Bradford between October 1990 and January 2014. She is represented by her husband, Mr Shojaee, and has made various claims of disability discrimination up until the end of her employment in 2014. The disability upon which she relies is agitated depression, and this is contended to be a mental impairment which has the Case No. 1802968/2013 2 requisite substantial effect on her ability to carry out day-to-day activities within the meaning of section 6 of the Equality Act 2010.

[2]The respondents initially disputed disability and in previous preliminary hearings in Leeds, before transfer of the proceedings to this region, a preliminary hearing to determine disability was ordered and the claimant was invited to serve any relevant medical evidence, and to prepare what is termed an “impact statement” in which she would set out the effects of her alleged disability upon her at various times. The claimant did not accede to this request , and has not actually made an impact statement as such, but her witness statement does contain some details which are relied upon for this purpose and her husband, Mr Shojaee, has also made a witness statement in which there is some evidence which is relied upon by the claimant in support of the determination of disability.

[3]The medical records, however, were not disclosed and at a preliminary hearing held in this region on 20 April 2017 the issue of how disability would be determined, and when, was further considered. On that occasion the Employment Judge in question determined not to hold a separate preliminary hearing in relation to disability, not least of all because the issue as to knowledge would also still require to be determined, so consequently no preliminary hearing was ever held. There was again further discussion as to the claimant's records, the respondents seeking disclosure of them, but they were not ordered, it being a matter for the claimant as to what she did or did not wish to advance in support of her contentions about disability. So , in terms of the evidence before the Tribunal, it is contained in the witness statements of the claimant and her husband , and in the various documents already in the bundle and in particular various medical reports and other medical documents to which the Tribunal has been referred.

[4]The respondent did, however, subsequently concede disability, again further removing the need for it to be dealt with as a preliminary issue, but in terms of the date from which the claimant is so to be considered as a disabled person, this is still in dispute. The respondents’ contentions are that the relevant date is August 2012 or thereabouts, whereas for the claimant Mr Shojaee contends that the disability goes back to 2004. His submissions initially were to persuade the Tribunal that that is the case , but in due course the Tribunal will determine that actual date. Those, then are the reasons that the Tribunal is considering the matter at this stage. The claimant's case has closed , so all the evidence from the claimant in relation to this matter (upon which the burden of proof is upon her), is before the Tribunal, and the parties did agree that the Tribunal should determine this issue at this stage, not least of all because it may have an effect upon what evidence the Tribunal needs to hear in relation to the remainder of the claims , once the actual date of disability has been determined.

[5]In relation to the issues, Mr Shojaee made his submissions yesterday, and primarily they are to the effect that the Tribunal should find that the claimant was a disabled person from 2004 ; secondly, in the alternative , if not that date then from 2008, and finally in the final alternative 2011. In support of the contentions for a 2004 date Mr Shojaee made reference to his own witness Case No. 1802968/2013 3 statement (paragraph 3) in which he makes reference to an incident in 2001 where the claimant was admitted to A & E following a meeting at the school. Mr Shojaee refers to that incident and indeed to the history of the claimant's absences which are primarily to be set out, certainly in relation to this period, at page 752 of the bundle. He took the Tribunal through those various absences pointing out that the first ones , in 2001, in July and September of 2001, were for what was termed as “stress” and he referred the Tribunal to those entries and relies upon them in support of his contention that the disability goes back to 2004 at the latest. He also refers to other absences in 2004 where again there is a “stress” absence recorded. There is an issue as to whether the number of days is correctly recorded, five being recorded, but the reality perhaps being 15 to include the Easter holiday, but again he relies upon that as an instance where the claimant was suffering from the condition which he contends was a disability since at least 2004.

[6]Further, in support of his contentions Mr Shojaee has referred the Tribunal to a number of policies and procedures that are contained in the bundle in relation to absence management, and has alleged the Tribunal to the alleged failure of the respondents to carry out those procedures with the claimant in respect of the various absences that she has had, and in particular to those which were related to stress. In essence, what his submissions appear to amount to is this: that the failure of the respondents to follow those procedures led to the claimant being denied the opportunity, as it would be put, to understand or to get across to her employers the condition from which she was suffering at that time; that she was thereby precluded through the fault of the respondents, as it were, from either investigating or putting matters before the respondent which might have led to either her realising herself that she had the relevant disability , or to the respondents finding that out by appropriate referrals to Occupational Health. The thrust of his submissions in relation to those alleged procedural irregularities was, as the Tribunal understands it to that effect, that failure to follow those procedures has deprived the claimant of the opportunity of establishing, either for herself or for the respondents, the extend of her condition and its potential disabling effect as long ago as 2004.

[7]Similarly in relation to 2008, Mr Shojaee refers in particular to a return to work interview held by the then Head Teacher on 12 June 2008 , which is recorded in the bundle but which he says does not comply with the Absence Management Procedure. It is not on the “right” form, the claimant disagrees with the contents of that document which he did not see for many years and which is alleged to have been concealed, rather in the same way that it is alleged the respondents concealed the various policies that Mr Shojaee refers to. From this Mr Shojaee effectively again makes a submission that this was another instance of the school not following the appropriate procedures , and consequently depriving the claimant of the opportunity to explain further the effects of her condition, that it may amount to a disability, or thereby preventing the respondents from making the appropriate enquiries, and that is another instance, he says, of such a failure.

[8]In terms of the claimant progressing through her school history at that time he accepts, as indeed the evidence shows, that the claimant continued to attend work during 2004, 2008 and all the way through to 2011 apart from the Case No. 1802968/2013 4 absences that are set out on page 752. Mr Shojaee does, however, refer to the claimant withdrawing an application for a Deputy Headship , and he referred us to that, and the document is in the bundle in which she withdrew that application. He says, and there is no challenge to this factually, that she made no further applications, which he says was because of her low mood and depression , and was therefore a further indicator of the effect of her condition upon her at that time. He says at that time he effectively became her carer; he was providing, what he terms “adjustments” for her when she was returning home every evening , and that was what was helping her get through her working day. As I say, she was still, nonetheless , working during that period as a member of the Maths Department. Mr Shojaee effectively says that by this time, and we are talking effectively 2008 now, that the claimant was already suffering from the symptoms of her condition that did amount to a disability, and that without these adjustments and the assistance that he was providing she would not have been able to continue to work as she was doing so.

[9]In terms of the further absences that then occurred, Mr Shojaee refers the Tribunal to absences in 2006 through to 2008, again recorded in the absence record, where the reason for absence has been given as either “exhaustion” or “lethargy”. Mr Shojaee has submitted that on these occasions these were symptoms of the claimant's condition and that these are, he would term, classic symptoms of the depression from which she was suffering. These are instances that had been documented , and , as I say in 2006, 2007 and 2008, that these are instances where the claimant can show that these were the effects of the condition upon her, and she should be regarded as a person with a disability. He accepted, however, that these are all self certificated absences and the reason given for absence in the column on the absence record will be provided by the claimant on these occasions. There is no medical evidence relating to these absences, or indeed any absences, prior to July 2011. The remaining record of the claimant's absences is to be found at page 1042A of the bundle which, as it were, picks up from 2008 onwards and shows the absences that then occurred.

[10]Mr Shojaee then took the Tribunal through the various fit notes which began to be supplied by the claimant following her absence in July 2011, and indeed the first of those is at page 757 of the bundle on 15 July 2011, was for work related stress, which is described in the fit note as “ongoing situation”, and the claimant was given the fit note for one week. It seems likely that that would be at or around the end of the summer term and there were no further fit notes during that summer, the next one being 23 September 2011, which is page 758 of the bundle, where the diagnosis again is “work related stress” and the doctor has made comments in relation to the need for work place adaptations as a means of the claimant being able to return to work . There is an entry made that the claimant needed an independent Occupational Health referral “as soon as possible”, underlined on the fit note by the doctor. That was a fit note for two weeks in September 2011. The next is at page 759 and is dated 7 October 2011. The reason given at the head of the fit note is “ongoing severe stress related illness”, and on this occasion the doctor has simply indicated that the claimant was not fit for work and does not make any recommendations in the Case No. 1802968/2013 5 box below , but does make the comment that she was awaiting occupational input, and again uses the word “urgent” and that was for a period of two weeks dated 7 October.

[11]The next in this sequence is at page 763 and is dated 27 October 2011. The diagnosis again is “work related stress” and this time the doctor has added the words “agitated depression”. Again, the certificate confirms the claimant is not fit for work, comments are made about awaiting an Occupational Health appointment and CBT treatment, and that the claimant was on medication. That fit note was effectively valid until 11 November, and on that date the next fit note dated 11 November (page 764 of the bundle) was then issued, again for “work related stress” , and again reference was made to a referral for Occupational Health and CBT counselling. This fit note now was for some eight weeks.

[12]The next fit note is on 3 December 2011 (page 769 of the bundle). Again the diagnosis is “work related stress”. The claimant is said not to be fit for work but there are some recommendations as to adaptations that may be made, and the doctor in this box has written that the patient still had what it described as “significant mental health problems” and referred to meetings, deadlines and stress issues, and the need for the claimant's husband to attend meetings as an observer. That fit note was for four weeks. That was then followed by a further fit note at page 770 of the bundle dated 24 January 2012, where again for “work related stress” and with a note “agitated depression” in the box below it, a fit note for eight weeks was issued by the claimant's GP.

[13]Around about this time a letter was written by the claimant’s GP, Dr Pearson, which is to be found in fact in two places in the bundle, but one example of it is at pages 771-772. That report is dated January 2012 and is addressed to Susan Gee who was a manager of the Health and Wellbeing Service to whom the claimant had been referred , and with whom there was to be, apparently and may well have been, a meeting on 16 February. This report, however, addressed to Ms Gee refers to the claimant having been seen in April 2004 with work related stress for which she had three weeks off work. The report continues, and the next paragraph is a reference to the claimant being seen next in July 2011 in a state of extreme distress, and this of course was the time at which the claimant first went off work and in respect of which the first of this series of sick notes was issued. The doctor at that point refers to the tests that she gave the claimant, but she makes no further reference to any other treatment or any other matters arising in July 2011. She continues, however, to refer to the claimant returning to work in September 2011, returning in what she describes as “more distress”. The doctor goes on to say how she then recommended antidepressants and referred the claimant to an NHS counsellor. She goes on to say how the claimant had been reviewed approximately two weeks since then, and that her medication was increased to a level that she was able to tolerate to a therapeutic dose. There then appears a paragraph where she says this: “She remains on medication and having regular counselling with which she is compliant and is actively participating in her recovery. Over the last two months she has gained more insight into how unwell she has become over many Case No. 1802968/2013 6 months/years and that her recovery to full mental health will be slow. I continue to see progress at every consultation…I think it is fair to say that the claimant has suffered a breakdown in her mental health due to agitated depression caused by work related stress.” She says she is not aware of any other extraneous factors and then she goes on to express the cause of the condition, a breakdown in relationship at the school. and then continues with her report.

[14]The penultimate paragraph reads as follows: “Based on the evidence I have seen from Mrs Hassanzedah it seems that there is little hope at present that the school can manage the situation effectively internally and that until satisfactory protection of her mental health can be provided it would be unwise to return to this environment without further predictable deterioration in her mental health, this is also the view of the therapist.”

[15]It is unclear for the moment, and does not matter for the purposes of this determination, when and to whom that report was provided, but it was clearly prepared for Ms Gee to see and is clearly an indication of the position at January 2012.

[16]The fit notes, as it were, continued and on 9 March 2012 a further fit note was issued by the claimant's GP (page 841 of the bundle) where the diagnosis is given as “depression and mental illness caused by work related stress” and again boxes are ticked in relation to adaptations that may be made and this fit note was for a period of a month.

[17]The claimant's submissions through Mr Shojaee are that the fit notes, and indeed the medical report of January 2012, support a contention that by that stage the claimant was indeed a person with a relevant disability. In addition, the claimant also relies upon a report that was subsequently provided by Dr Pearson on 30 October 2013 which is at pages 2473-2474 of the bundle, and this was the result of a referral by the claimant of an application for ill health retirement, and this is her GP’s answer to a set of questions that were posed to her which are to be found, if one can read them, at pages 2469-2470 of the bundle, but one can just about discern on the back type against a dark background what the questions were, and it is these questions that the GP’s report of 30 October answered.

[18]In relation to question 1, which is “please list all the relevant current diagnosed medical conditions giving the date of onset for each”, the reply by the claimant's GP is as follows: “agitated work depression due to work related stress since consultation 23 September 2011”. In relation to question 2, which was about treatment, a reference was made to the CBT report, and in relation to question 3, which was “please describe how the condition affects the applicant’s general health and capability” the GP’s answer is as follows: “This lady’s severe anxiety and depression affects her functioning, memory and cognition. She is often weepy to the point of hysterical suicidal ideation. She cannot do any routine household chores or cook and is definitely incapable of Case No. 1802968/2013 7 any higher level functioning. She is phobic of leaving the house, taking any initiative with reference to any conversations, she is tired all the time and teary.”

[19]In answer to question 4, which asked as to the treatment that was being prescribed for the claimant, the doctor sets out there how, since September 2011, she had prescribed the claimant Citalopram, initially a 10mg dose but rising therefrom up until a level of some 40mg which was the dose at the time of the report, and the doctor also makes reference to the two courses of CBT that the claimant had undergone.

[20]The remainder of the questions are also answered in this document but in essence the General Practitioner’s view in answer to question 10 as to the condition she says this: “This lady has severe agitated depression which is resistant to two attempts at counselling and high dose antidepressants. The issue is focussed around work related stress that is unable to be resolved with her employer and has resulted in significant suicidal agitation which has deteriorated rather than improved.”

[21]She then goes on to deal with question 11, which is the question for ill health retirement purposes as to whether the claimant was likely to be able to give any further service as a teacher and she concluded that this would not be so.

[22]In terms of the medical evidence that the claimant relies upon, that is from her GP in the context of the ill health retirement application but which does set out in some detail the diagnosis, the date of the diagnosis and the indeed the treatment that the claimant was prescribed for her condition and when she was so prescribed.

[23]In essence, Mr Shojaee’s submission on behalf of the claimant is that certainly by 2011 at the latest she was a person with a disability, taking all the medical evidence into account and the other evidence that he relies upon, but that in fact that disability the Tribunal should find goes back to either 2008 or further back to 2004, but those are in essence and in summary, and I hope doing due justice to them, his submissions on behalf of the claimant.

[24]For the respondents Ms Mellor makes the point that in relation to the 2004 and 2008 arguments there is no medical evidence in support of any finding that the claimant was a person with a disability in those periods. She highlights the fact that on all the evidence the claimant never consulted her GP in relation to those periods and that there is no medical evidence from which the Tribunal could safely conclude that the claimant had a disability during those periods. To the extent that the reasons for the claimant's absences are recorded in the sickness absence record on page 752, these are self certificated, they are not supported by any medical evidence and indeed there is not even any evidence that these are necessarily symptoms of the claimant’s condition, though of course they may be. She makes the point that in support of this early period the claimant has really failed to adduce any evidence either of her own or through her husband, or from any medical point of view, to support any finding that the disability could be established any earlier than 2011. Consequently, Ms Mellor Case No. 1802968/2013 8 invites the claimant to discount those periods, and in relation to the later periods she accepts, as the respondents do, that the relevant disability arose by August 2012, but she invites the Tribunal effectively to look at that from the point of view of that being the length of time for which the condition had actually been affecting the claimant in the requisite way, and that instead of looking what the condition was likely to do at any earlier point , the safest thing for the Tribunal to do is to look, in August 2012, at the history. She accepts that by then there had been 12 months of the condition having the requisite effect upon the claimant; she accepts there is evidence to that effect and on that basis the respondents contend for the August 2012 date.

[25]Ms Mellor counsels the Tribunal against taking the report of the GP on 30 October 2013 , and simply going back two years, and therefore coming up with 2011, and that the Tribunal instead should focus upon the position as it appeared to be, without the benefit of hindsight, in late 2011. What she says about that is that whilst clearly the claimant was ill by that time , and her absences are being recorded in the way that they were, that at that time one could not have said that the condition was likely to last 12 months. It did in fact do so but if, as it were, one had taken a snapshot at that time and asked, “is this condition likely to last for more than 12 months?” the answer would not have been “yes” , because it was very dependent upon how things may have gone at the school, and there is an implication in the medical reports that the two matters were interlinked. Therefore the likelihood may have been that the condition might have been improved in that period of time if matters had turned out differently, so in terms of the test to be applied in relation to “likely to last for more than 12 months” , she submits to the Tribunal that the evidence falls short of that and that the Tribunal can only really rely upon the safe anchor of the date of August 2012 , in relation to the length of time for which the condition actually did last.

Conclusions

[26]So those, in summary, are the competing contentions, and the Tribunal has had to decide which is the appropriate date for the date of disability. In relation to the claimant's initial positions of 2004 and 2008, the Tribunal cannot accede to the submissions that the Tribunal should go back that far. The burden is upon the claimant to satisfy the Tribunal on a balance of probabilities that she was a person with a relevant disability at the particular time, and the Tribunal finds that she has not discharged that burden in relation to 2004 and 2008 at the very least. The highest we think it can be put at that time is that she may have been a person with this condition, and we do take account of the fact that in her report of January 2012 the GP does make mention of the fact that the claimant was not aware of the fact that she may have had this condition for many months or years, but it is clearly a case that the GP regards it as a condition which has got worse over time , and the GP does not attempt, and possibly could not attempt at that time, to put a date upon which the condition became sufficient to constitute a disability. So we think the highest that can be said in relation to those periods, there being no dispute, is that the claimant was doubtless ill during those periods , and had time off for the reasons that she has given in the various fit notes. That, we feel, falls a long way short of satisfying the evidential Case No. 1802968/2013 9 burden that there was in fact a disability during those years, and we do not so find.

[27]We turn instead to 2011 when clearly , from July 2011, onwards the claimant has been absent for the reasons which, of course, the GP has subsequently diagnosed as being agitated depression, and the first of those absences, of course, was in July 2011. But that was relatively short-lived and indeed we note that there was no treatment recorded by the doctor on that occasion. We note from the GP’s report in October 2013, for example, that the Citalopram was not prescribed until September 2011, so there was clearly a reference to the doctor at that time , and there was clearly an incident. In terms of that forming part of the condition which then could be regarded as a disability, there seems little evidence at that point that one could have said in July 2011 that that condition was likely to last more than 12 months at that time. Thereafter, of course, the claimant starts periods of absences from September 2011 and ,of course, those are then continuing and continued indeed until she left the school. From that period the medical evidence is rather different and in particular, as we see from the final report of Dr Pearson in October 2014, the condition of agitated depression was diagnosed by her on the consultation of 23 September 2011, and of course it is in September 2011 that she starts to prescribe the antidepressant drug for the claimant.

[28]In terms of the wording of various fit notes, we do note that as early as 7 October 2011 , in that fit note, the term “severe” is used. The claimant is described as having “ongoing severe stress related illness”, and indeed in subsequent fit notes that terminology is used again, but we note it is first used in October 2011. We also note that in her letter of January 2012 the doctor again uses the terminology as to the severity of the claimant's condition at that time, that being January 2012. We also note that in that letter she expresses the view that the claimant's recover to full mental health would be “slow”, as she put it; that is, of course, only some four months from the initial diagnosis in September 2011.

[29]We take the respondents’ point that we should be wary of hindsight and we should be wary of looking at information that has turned out to be the case , and must view the position in relation to likelihood of duration of more than 12 months at the relevant time, and the respondents urge us not, as it were, to go back to September 2011 , look at the position then and say it was likely to last more than 12 months at that time. We should , they say, concentrate instead on the later period of August 2012.

[30]The position it seems to us is that the totality of the medical evidence, the terminology of the fit notes and indeed both reports of Dr Pearson, do entitle us to take the view that , as at September 2011 , this was a condition which was likely to last more than 12 months. We think we are entitled to take account of the use of the terminology of “severe” and “significant”, which are both terms that are used in relation to the condition , and the expression in January 2012 that recovery was likely to be slow, and all the indications that, as at September 2011 the condition was indeed likely to last more than 12 months, and on that basis we are satisfied that the claimant has established that from September Case No. 1802968/2013 10 2011 she was a person with a relevant disability . That will be the date that we take for the purposes of her disability claims going forward. Note

[31]Following determination of the date of disability, the Employment Judge went through the claimant's claims in the Scott Schedule with the parties, and indicated to the claimant's representative that, in the light of that ruling, claims numbered 8, 9, 10 and 11 could not be pursued given the Tribunal’s findings in relation to the date of disability. Mr Shojaee for the claimant accepted this, and the Tribunal accordingly will not consider the claims of disability discrimination which are made prior to September 2011.

[32]Before the respondents’ case was resumed, however, Mr Shojaee made two applications to the Tribunal. The first was that the Tribunal proceed to determine the application to amend that he had previously made to the Employment Tribunal and which had been considered by Employment Judge Horne in July 2017, upon which he had declined to rule, leaving the matter to this Tribunal to determine having heard the evidence. That application was to amend the claims to add some ten (a further five having been dismissed by Employment Judge Horne) allegations of detriment under section 44 of the Employment Rights Act 1996. The Employment Judge was somewhat surprised at this application, but it was considered.

[33]The second application was to amend the Scott Schedule in relation to further protected disclosures. There had been a previous discussion during the course of the hearing in which the Employment Judge had pointed out (as he had done previously) that , at present, only one protected disclosure was pleaded in the Scott Schedule, namely that of October 2012, and that the claimant's claims in respect of protected disclosure detriment were accordingly those set out in the Scott Schedule and related to one , and one disclosure only. Following that the claimant's representative sought to amend the Scott Schedule, but in this second application before the Tribunal he had not specified what further protected disclosures he intended to rely upon, and further what alleged detriments the claimant was subjected to as a result of having made those allegedly protected disclosures. Thus, in the form in which it was presented to the Tribunal at that stage, the application to amend in relation to further protected disclosures was still incomplete, and Mr Shojaee was advised to consider it further before pursuing it with the Tribunal.

[34]Turning to the application to determine the previous application to amend, the Tribunal and the parties adjourned to familiarise themselves more fully with the history of the claimant's application in the preliminary hearings before Employment Judge Horne, and his rulings thereon. Having returned after a lengthened luncheon adjournment to consider these matters, the Employment Judge informed the parties that he, upon reading Employment Judge Horne’s Judgment, had noted that that Employment Judge had been minded to grant the applications, but felt constrained by the authority of Aldridge not to do so, on the basis that to do so at that to do so at that stage would have been to deprive the respondents of a defence in relation to time limits. This was expressly the reason why he declined to rule upon the application and left it to the full Tribunal. Case No. 1802968/2013 11

[35]Since then, however, the judgment of the Employment Appeal Tribunal in Galilee v The Commissioner of Police for the Metropolis [2017] UKEAT0207/16/2211 which was promulgated on 22 November 2017, in which His Honour Judge Hand QC reviewed the authorities on the doctrine of “relation back” as applied to amendment applications before the Employment Tribunal, and held, contrary to the authority of Aldridge and other cases, that the doctrine had no application in Employment Tribunals, and consequently the granting of an amendment in relation to claims that were potentially out of time would not have the effect of depriving the respondents of a time limit defence. That seemed to the Employment Judge to put a rather different complexion upon the application, and rather reinforced the view that this was potentially a matter which was best determined at the conclusion of the evidence. Further, for the respondents, Ms Mellor contended that with respect to Employment Judge Horne, the respondents did not accept his analysis of the applicable time limit as applied to the alleged facts, and that to that extent arguments in relation to when time began to run and whether the claims, if permitted, would be out of time required further submission and was a matter best left for legal argument when all the facts had been heard.

[36]The Employment Judge during this exchange did try to explore with Mr Shojaee the precise nature of the amendments that he wished to make, and how he was to contend that he claimant could potentially fall within section 44 at all, given its precise terms and the degree to which the evidence of Mrs Ogley, who was waiting to give evidence, would be relevant to those claims. The reason why Mr Shojaee wanted determination of these applications at this stage was so that he could know what questions he could or could not ask in cross examination of the respondent’s witnesses, particularly Mrs Ogley. The Employment Judge assured him that to the extent that there was still a live application to amend in respect of these claims, he would not be precluded from asking relevant questions if they may pertain to these potential claims. The Tribunal would effectively treat the amendments as having been granted and would allow cross examination of the respondents’ witnesses if potentially relevant to the claims as amended. He assured Mr Shojaee on that basis that he would not be limited in his cross examination unless and until the Tribunal considered that his questions were not relevant either to any of the claims as presently made or by way of amendment.

[37]Consequently the Tribunal declined to rule upon the amendment issue for these reasons, and the hearing continued with Mrs Ogley then giving her evidence. Employment Judge Holmes Dated 16 August 2018