Ms M Barcker v Moorfields Eye Hospital NHS Foundation Trust: 2201912/2022
EMPLOYMENT TRIBUNALS
Case No 2201912/2022
Between
Ms M BarckerClaimantMoorfields Eye Hospital NHS Foundation TrustRespondent
Before
Employment Judge SinghIn person for claimantMs E Skinner (instructed by Counsel) for respondentDate 9 July 2024
REASONS
LIST OF ISSUES
[1]Background to application1.1 The Claimant presented a claim to the Tribunal on the 17th April 2022 for disability, age and race discrimination and “other payments”. At a case management hearing on the 5th July 2022, Employment Judge Walker went through the claims and issues with the Claimant and identified that the Claimant was pursing the following claims i.Direct age, disability and race discrimination ii.Discrimination arising from disability iii.Unauthorised deduction from wages.1.2 At that case management hearing, the Claimant explained that her claims related to an alleged failure by the Respondent to pay her normal wages during a period from August 2020 to February 2022.1.3 During the discussion at the case management hearing, the Claimant also said that she had felt she was harassed at work due to her dyslexia. EJ Walker pointed out that this had not been set out in her claim form and that if the Claimant wished to amend her claim to include a claim for harassment on the grounds of disability, she would need to write the details of that claim down and send it to the Tribunal and the Respondent as soon as possible.1.4 A copy of the order from that hearing was sent out to the parties on the 5th July 2022.1.5 On the 29th July 2022 the Claimant wrote to the Tribunal only and stated she wished to amend her claim to include complaints of bullying and harassment as well as “fraud, exploitation and slavery”.1.6 On the 9th September 2022, EJ Walker wrote to the Claimant to explain that out of the allegations raised in the Claimant’s email of the 29th July, the tribunal only had power to decide claims of harassment. EJ Walker went on to make case management orders about the application to amend the claim.1.7 The Claimant was ordered to write to the tribunal and the Respondent by the 22nd September setting out full details of her claim for harassment. The Respondent was given until the 6th October 2022 to submit a response to the Claimant’s application to amend.1.8 On the 26th September 2022, the Respondent’s representative wrote to the tribunal to say that the Claimant had failed to comply with the tribunal’s order that she provided further details of her claim for harassment. The Respondent requested an unless order.1.9 No further detail was provided from the Claimant about the harassment claim. However, details about the allegations of harassment were included in her witness evidence.1.10 As the Claimant’s application was still outstanding at the start of the final merits hearing on the 9th May 2023, Employment Judge Singh and the 2 other tribunal panel members, Tribunal Member Campbell and Tribunal Member Baber decided whether or not this needed to be dealt with as a preliminary issue at the start of the hearing or whether it was better determined after hearing all the evidence in the case.1.11 Given the amount of detail in the allegations of harassment, the panel decided that it needed to be dealt with as a preliminary issue. If the issue was not considered until after hearing all the evidence and the application to amend was refused, significant time would have been wasted in the hearing questioning all the parties about the harassment allegations. If the application was determined at the start of the hearing, both parties would understand what questions they would need to ask during cross examination and know what issues they needed to focus on.1.12 Employment Judge Singh therefore invited both the Claimant and the Respondent’s representative to make submissions on the application to amend.1.13 The Respondent objected to the application on the following grounds• The nature of the amendment was that it was a very high level amendment. It was not simply a re-labelling but a completely new claim being added.• The claim for harassment was entirely unparticularised. The Claimant had not set out what the claim was about and therefore the Respondent had little idea what the actual substance of the claim was. The Respondent isn’t able to understand what the actual claim is.• There would be significant prejudice to the Respondent as they had prepared for the hearing based on the claims and issues set out in the preliminary hearing in July 2022.• If the amendment was allowed, the Claimant would need to submit further particulars and the Respondent given time to submit an amended response which would mean the hearing today would have to be abandoned.• Significant amounts of new evidence would need to be gathered in the form of witness statements and potentially other documents which again would mean the hearing today would need to be abandoned.• The timing of the application would also need to be considered. Although the Claimant had made the application in July 2022, she had failed to flesh out her application until exchange of witness statements had taken place, less than a week before the trial.• The Claimant had attended the preliminary hearing in July 2022 where it had been clearly explained to her what she needed to do and these instructions had again been repeated in the tribunal’s correspondence in September 2022, but she had not complied with them.• The Claimant had stated that she had been unable to comply with the tribunal’s directions regarding providing further details of her claims because she had been unwell due to a thyroid problem, but there was inconsistent evidence in the bundle regarding that.1.14 The Claimant was asked if she wished to make any points as to why her application to amend should be accepted. The Claimant stated that she was very sorry if she had not done what she needed to but this was because she was a lay person and didn’t know what she needed to do. She also said that the amendment was very important to her and a significant part of her claim. She stated that the harassment was still ongoing.
The Law
[2]The Law2.1 The relevant legal principles to be applied, when considering amendment, are well known and can be stated briefly. The leading authority is Selkent Bus Company Limited v Moore 1996 ICR 836.2.2 The tribunal must carry out a careful balancing exercise of all the relevant circumstances. It must balance the injustice and hardship of allowing the amendment against the injustice and hardship of refusing it.2.3 When considering the balance of injustice and hardship, Selkent states that all the relevant circumstances must be taken into account, and those circumstances include the following: the nature of the amendment (is it minor or substantial); the applicability of time limits; and the timing and manner of the application.2.4 Selkent states minor amendments include the following: the correction of clerical errors; the addition of incidental factual details to support existing allegations; and the relabelling of existing factual allegations as a different cause of action. Substantial amendments may include pleading new factual allegations, whether as a fresh cause of action or new allegations for an existing cause of action.2.5 Selkent confirms substantial amendment will require a consideration of the applicable time limit. (b) The applicability of time limits If a new complaint or cause of action is proposed to be added by way of amendment, it is essential for the tribunal to consider whether that complaint is out of time and, if so, whether the time limit should be extended under the applicable statutory provisions, e.g., in the case of unfair dismissal, s.67 of the 1978 Act.2.6 Whilst it is clear that a tribunal must consider whether a complaint is out of time, the nature and scope of that enquiry is less clear. No specific guidance is given in Selkent; it is not considered or addressed in the EAT’s conclusions. There are two broad possibilities: first, the fact the claim is out of time as at the date of the amendment is an absolute bar to the claim being added by amendment, unless time is specifically extended having regard to the applicable test, be it a test of reasonable practicability, or an exercise of a just and equitable discretion; second, the fact the claim is out of time as at the date of the amendment is simply one factor to be taken into account when exercising the tribunal’s discretion.2.7 The reference in Selkent to considering whether time “should be extended under the applicable statutory provisions” could suggest that the first approach is correct. However, it is now generally accepted that when considering amendment, time is simply one factor to be taken into account, and it does not operate as an absolute bar.2.8 It is not necessary for me to review the case law in detail. The correct approach was considered by Underhill J, as he was then, sitting in the EAT in the case of Transport and General Workers Union v Safeway Stores Limited 2007 UK EAT 92. The EAT considered how to interpret Selkent quoted above Point (b) might, if taken out of context, be read as implying that if the fresh claim is out of time, and time does not fall to be extended, the application must necessarily be refused. But that was clearly not what Mummery P. meant. As Waller LJ observed in Ali v. Office of National Statistics [2005] IRLR 201, at para. 3, point (b) is presented only as a circumstance relevant to the exercise of the discretion; and the reasoning of the Appeal Tribunal on the actual facts of the case clearly turns on the exercise of a "Cocking discretion" rather than the application of an absolute rule (see in particular points (3) and (4) at pp. 844-5)… Thus the reason why it is "essential" that a tribunal consider whether the fresh claim in question is in time is simply that that is a factor – albeit an important and potentially decisive one - in the exercise of the discretion.2.9 Safeway acknowledges that there is some contrary case law in support of the proposition that if a case is out of time as at the date of amendment, time operates as an absolute bar to amendment. This is dealt with at paragraph 12, but Underhill J, found in that time does not operate as an absolute bar.2.10 Granting an amendment does not determine whether the tribunal has jurisdiction to hear a claim. It had been the accepted position that granting the amendment would lead to the final tribunal being constrained to consider whether the amended claim was in time at the date of the ET1. Thus, a respondent may have been denied the possibility of arguing that the claim should be treated as presented at the date of amendment, and that is when time should run.2.11 The position has been complicated by Galilee v The Commissioner of Police of the Metropolis EAT/0207/16. HHJ Hand decided that the relation back principle does not apply, and section 35(1) of the Limitation Act 1980, which provides for a statutory deeming of a relation back, does not apply to employment tribunals.2.12 I should say some more about the approach the tribunal should take when considering whether an amendment should be granted and the importance of the time point. A proposed amendment may contain a claim that was either in time or out of time at the date of the original ET1. There are four possibilities. First, the new claim sought to be added by way of amendment may have been out of time when the original ET1 was presented. Second, it may have been in time at the date of the ET1. Third, time may have begun to run at some time after the presentation of the original ET1. Fourth, time may not have started to run.2.13 If the relation back principle applies, and the claim is in time as at the date of the ET1, no time issue can arise. If the relation back principle does not apply, time remains a jurisdictional issue. If a claim is out of time, a tribunal must formally extend time or dismiss the claim. Granting an amendment does not extend time, as time is merely a factor to be considered as part of the exercise of discretion. It follows that granting an amendment may lead to a claim that is out of time being included. Time could be considered at a further preliminary hearing or it could be left to the final tribunal. If left to the final tribunal, there is a real risk that significant costs will be incurred in pursuing and defending a claim that may well be dismissed if it was presented out of time.2.14 When considering any application to amend, it is vital that the tribunal must identify the specific amendment sought. This involves identifying any relevant factual allegation, and the associated cause of action. It is necessary to do this because the tribunal must consider whether the amendment is substantial and whether the claim is out of time. If the allegation is unclear, it may be impossible for the tribunal to determine whether the claim is substantial and whether it is in time as at the date of the application, or indeed at the date of the ET1.2.15 If a claimant wishes to amend the claim, there is considerable onus placed on that party to make the application clear. The Court of Appeal’s decision in Housing Corporation v Bryant 1999 ICR 123 emphasises the importance of clarity of pleading. In that case, the claimant alleged unfair dismissal and sex discrimination. The dismissal was not said to be an act of sex discrimination. All the claims of sex discrimination predated the dismissal and were out of time. Later, the claimant sought to allege the dismissal amounted to victimisation. It was clear that the fact of dismissal was pleaded, there was reference to sex discrimination, and there was reference to victimisation. However, the claim form did not specifically refer to the causal link of retaliatory victimisation as a reason for the dismissal. The mere fact that elements existed within the claim form did not mean the claim had been sufficiently identified; there needed to be the statement of causal connection. Buxton LJ put it as follows: ...it is not enough to say that the document reveals some grounds for a claim of victimisation, or indicates that there is a question to be asked as to the linkage between the alleged sex discrimination and the dismissal. That linkage must be demonstrated, at least in some way, in the document itself. ..the words making the necessary causative link between the making of the complaint of discrimination and the dismissal were absent from the application. But if this is to be taken as a question of construction, as a matter of law, and not merely of the judgment and assessment of the Chairman, the absence from the document of any such linkage must be fatal: because the issue of construction is whether the document makes a claim in respect of victimisation.2.16 This demonstrates that on amendment, it is important to carefully identify the specific claim that is to be added. It also stresses the need for clarity and accuracy on the part of the claimant in pleading the case. It may not be enough for a claimant to simply say there is general reference to discrimination, general reference to victimisation, and general reference to dismissal. If the claim requires a necessary causational link, there should be some wording which alleges it. If that wording is absent, the claim has not been brought.2.17 I remind myself of the three points Selkent says should normally be considered: the nature of the amendment (is it minor or substantial); the applicability of time limits; and the timing and manner of the application.2.18 It is important for a claimant to identify with clarity the amendments because, if the claimant fails to do so, the tribunal cannot determine whether the amendment is minor or substantial. Further, it is necessary for the amendment to be clear to identify whether there is any issue with time at all.2.19 The timing and the manner of the application must also be considered. It is necessary to consider all of the relevant circumstances. Those circumstances may include those taken into account in Safeway: how closely related are the new and old claims; are all the relevant facts already in issue and must be proved; was the claim omitted by mistake on the part of the lawyers; should the respondent be surprised that the new claim has been brought; and how promptly has the application been made. These examples are merely illustrative. All the relevant circumstances must be taken into account.2.20 As part of the balancing exercise, it is important to identify to what extent the amendment will lead to a different factual enquiry. In Evershed v New Star Asset Management EAT 0249/09, Underhill P, as he was then, found it was necessary to consider with some care the areas of factual enquiry raised by the proposed amendment and whether they were already raised in the previous pleading. In that case he concluded that the new evidence would be substantially the same as to be given in the original claim; he allowed the amendment and overturned the original tribunal decision. This approach was approved by the Court of Appeal in Evershed V New Star Asset Management Holding Limited [2010] EWCA Civ 870 at paragraph 50 were Rimer LJ stated: ...A comparison of the allegations in the amendment… shows that the amendment raises no materially new factual allegations... the thrust of the complaints in both is essentially the same...2.21 There was no suggestion that it was necessary to determine whether it was reasonably practicable to bring the claim within the limitation period.2.22 In summary, the following propositions can be distilled:a. First, the overarching consideration is the balance of injustice of hardship of allowing the amendment against the injustice and hardship of refusing it.b. Second, it is necessary to identify whether the amendment is minor or substantial in that it involves a substantial addition of fact and a new cause of action.c. Third, the timing of the application may always be relevant, but if the amendment involves a substantial alteration, it is necessary to consider whether the claim would be out of time at the date of the amendment. This is a factor to be considered in the general exercise of discretion.d. Fourth, the balance of hardship is not an abstract concept. The tribunal should consider whether there is evidence of real hardship, and it must give supporting reasons having regard to all the relevant circumstances.[3]Consideration3.1 The panel took into account the law, as set out below and considered the balance of injustice and hardship on the Claimant if the application was refused against the injustice and hardship on the Respondent if the application was allowed. They also considered the practical consequences of allowing the amendment.3.2 The panel accepted that the claim for harassment was important to the Claimant and that she would not be able to pursue it or have the claim determined if the application was refused.3.3 However, the panel found that the weight of the prejudice and injustice to the Respondent was much heavier. 3.3 As the Respondent had made clear, they had very little understanding of the claim at present and it was accepted by the panel that they would find it difficult to properly respond to the claim during the current hearing. None of the witness evidence addressed any of the allegations of harassment and there was no documentary evidence in the bundle that would assist the tribunal in making a decision about the claim either.3.4 The panel agreed that if the application was allowed, it would be impractical to continue with the hearing at present and it would need to be abandoned in order that the Claimant can be given time to submit further particulars about the claim and for the Respondent to be able to submit grounds of resistance. The Respondent would also need to be given time to prepare witness evidence and collate documents to respond to that claim.3.5 The panel also took into account the Claimant’s failure to provide details of the claim when directed by the tribunal in July and September 2022. The Claimant said that she didn’t know what she had to do but the orders from EJ Walker make it quite plain as to what the Claimant needed to do to particularise the claim.3.6 The Claimant had had since July 2022 to set out the details of her claim but had chosen to wait until exchange of witness statements in May 2023, one week before the hearing.3.7 The nature of the application was to add in a completely new claim that spanned back several years, at least until 2019 and this would completely change the focus of the claim and the hearing. This would significantly increase the time of the hearing, which would lead to additional costs being incurred by both parties and the tribunal.3.8 On those grounds, the panel decided that the balance of hardship on the Respondent greatly outweighed the hardship on the Claimant and therefore the application was refused.
LIST OF ISSUES
[1]Time limits1.1 Given the date the claim form was presented and the dates of early conciliation, any complaint about something that happened before 4 November 2021 may not have been brought in time. The respondent submits the correct date is 5 December 2021. We will discuss this in our conclusions section.1.2 Were the discrimination complaints made within the time limit in section 123 of the Equality Act 2010? The Tribunal will decide:1.2.1 Was the claim made to the Tribunal within three months (plus early conciliation extension) of the act to which the complaint relates?1.2.2 If not, was there conduct extending over a period?1.2.3 If so, was the claim made to the Tribunal within three months (plus early conciliation extension) of the end of that period?1.2.4 If not, were the claims made within a further period that the Tribunal thinks is just and equitable? The Tribunal will decide:1.2.4.1 Why were the complaints not made to the Tribunal in time?1.2.4.2 In any event, is it just and equitable in all the circumstances to extend time?1.3 Was the unauthorised deductions complaint made within the time limit in section 23 of the Employment Rights Act 1996? The Tribunal will decide:1.3.1 Was the claim made to the Tribunal within three months (plus early conciliation extension) of the date of payment of the wages from which the deduction was made?1.3.2 If not, was there a series of deductions and was the claim made to the Tribunal within three months (plus early conciliation extension) of the last one?1.3.3 If not, was it reasonably practicable for the claim to be made to the Tribunal within the time limit?1.3.4 If it was not reasonably practicable for the claim to be made to the Tribunal within the time limit, was it made within a reasonable period?[2]Disability 2.1 Did the claimant have a disability as defined in section 6 of the Equality Act 2010 at the time of the events the claim is about (August 2020 to April 2022)? The Tribunal will decide:2.1.1 Did she have a physical or mental impairment. The claimant says that she is disabled by virtue of the following impairments:2.1.1.1 Dyslexia;2.1.1.2 Suspected non-Hodgkin’s lymphoma, which she has had from around 2014/2015; and2.1.1.3 Arthritis to her knee and consequential deterioration of her hip, from 2019.2.1.2 Did it have a substantial adverse effect on her ability to carry out dayto-day activities?2.1.3 If not, did the claimant have medical treatment, including medication, or take other measures to treat or correct the impairment?2.1.4 Would the impairment have had a substantial adverse effect on her ability to carry out day-to-day activities without the treatment or other measures?2.1.5 Were the effects of the impairment long-term? The Tribunal will decide:2.1.5.1 did they last at least 12 months, or were they likely to last at least 12 months?2.1.5.2 if not, were they likely to recur?[3]Direct age, disability, and race discrimination (Equality Act 2010 section 13)3.1 Did the respondent, in the period from August 2020 to April 2022 (except for the period from March-April 2021) require the claimant to use her contractual sick pay, when she was shielding due to her clinically vulnerability.3.2 Was that less favourable treatment? The Tribunal will decide whether the claimant was treated worse than someone else was treated. There must be no material difference between their circumstances and the claimant’s. If there was nobody in the same circumstances as the claimant, the Tribunal will decide whether she was treated worse than someone else would have been treated. The claimant says she was treated worse than all other employees who were clinically vulnerable and shielding, as they were paid in full under the respondent’s policy.3.3 If so, was it because of:3.3.1 The claimant’s disability;3.3.2 The claimant’s race (which she describes as black); or3.3.3 The claimant’s age (she is aged over 50 years).3.4 Did the respondent’s treatment amount to a detriment?3.5 If the claimant was treated less favourably because of her age, was the treatment a proportionate means of achieving a legitimate aim?3.6 The Tribunal will decide in particular:3.6.1 was the treatment an appropriate and reasonably necessary way to achieve those aims;3.6.2 could something less discriminatory have been done instead;3.6.3 how should the needs of the claimant and the respondent be balanced?[4]Discrimination arising from disability (Equality Act 2010 section 15)4.1 Did the respondent treat the claimant unfavourably by requiring her to use her contractual sick pay, rather than applying its policy to pay shielding employees?4.2 Did the following things arise in consequence of the claimant’s disability: the claimant’s inability to attend work?4.3 Was the unfavourable treatment because of any of those things?4.4 Was the treatment a proportionate means of achieving a legitimate aim?4.5 The Tribunal will decide in particular:4.5.1 was the treatment an appropriate and reasonably necessary way to achieve those aims;4.5.2 could something less discriminatory have been done instead;4.5.3 how should the needs of the claimant and the respondent be balanced?4.6 Did the respondent know or could it reasonably have been expected to know that the claimant had the disability? From what date?[5]Remedy for discrimination or victimisation5.1 Should the Tribunal make a recommendation that the respondent take steps to reduce any adverse effect on the claimant? What should it recommend?5.2 What financial losses has the discrimination caused the claimant?5.3 Has the claimant taken reasonable steps to replace lost earnings, for example by looking for another job?5.4 If not, for what period of loss should the claimant be compensated?5.5 What injury to feelings has the discrimination caused the claimant and how much compensation should be awarded for that?5.6 Has the discrimination caused the claimant personal injury and how much compensation should be awarded for that?5.7 Is there a chance that the claimant’s employment would have ended in any event? Should their compensation be reduced as a result?5.8 Did the ACAS Code of Practice on Disciplinary and Grievance Procedures apply? Did the respondent or the claimant unreasonably fail to comply with it? If so is it just and equitable to increase or decrease any award payable to the claimant? By what proportion, up to 25%?5.9 Should interest be awarded? How much?[6]Unauthorised deductions from wages6.1 Did the respondent make unauthorised deductions from the claimant’s wages and if so, how much was deducted?6.2 The claimant says that in the period from August 2020 to April 2022 £8,176.02 was deducted by the respondent because it required her to use her contractual sick pay and it did not apply its policy to her to pay shielding employees in full. Procedure, documents and evidence heard
Relevant Law
[1]The Tribunal heard evidence from the claimant and Ms Juliet Dugdill, Service Manager and Ms Fay Trodd, Human Resources (HR) Business Partner on behalf of the respondent.[2]There was a bundle of documents running to 837 pages. Various additional documents were handed up during the course of the hearing including a spreadsheet detailing the shielding timeline for the claimant plus 2 comparators. These pages were numbered and added to the bundle. The Tribunal informed the parties that unless it was taken to a document in the bundle it would not read it. Preliminary Application[3]The claimant submitted an application to amend on 6 July 2023 seeking 5 amendments to add claims of: a) Failure to make reasonable adjustments. In summary, the claimant states that the respondent applied a PCP which required her to attend work despite the advice to shield as a result of the pandemic. The claimant states that her adjustment should have been, that she be allowed to work from home. b) Discrimination arising from disability, there are 2 claims the claimant seeks to introduce here. Firstly, and in summary, the claimant states that her absence from work arose from her disability and she was treated less favourably by being put through absence management procedures. Secondly, the claimant states that her absence from work was due to shielding but she was forced to go on sick leave even though she was willing and able to work from home. c) Indirect disability discrimination. In summary the claimant states that the PCP applied to her was the requirement to go off sick despite her being able to work from home. d) Direct age and sex discrimination. In summary, the claimant states that she was discriminated on the grounds of sex and age; she cites 2 male comparators, one in their 20’s and the other in their 30’s who she states were both classed as extremely vulnerable but allowed to work from home. e) Unlawful deduction of wages. In summary, the claimant states that she should have been paid 100% of her wages rather than 70%. The claimant also states that she has not been paid her sick pay, holiday pay and had been denied promotions amongst other things. f) The claimant also raised a separate further application on 12 February 2024, the first day of this hearing, to add a claim of unfair dismissal, following her dismissal by the respondent on 29 January 2024. g) Finally, in an email sent on 13 February 2024, the second day of this hearing, the claimant has clarified the position that she raised yesterday in terms of amendments relating to harassment and victimisation claims. The harassment claims are not adequately particularised and it is unclear what amendments, the claimant is seeking and whether these are different to harassment amendments considered by Employment Judge Singh in May 2023. In relation to victimisation again the amendment is inadequately particularised, we have no dates, names of individuals and sufficient detail in terms of the allegation itself.[4]These applications fell to this Tribunal to be determined as a preliminary issue at the commencement of this hearing.[5]In respect of the timing and manner of the applications, we considered the July 2023, February 2024 amendments separately. The July 2023 amendments predominantly revolve around allegations that the claimant was prevented from working from home; a general finding we make is that the claimant was aware of and had knowledge of these matters at the time that her claim was lodged in April 2022 and during the preliminary hearing discussions relating to the list of issues. There is a significant delay in the claimant making the amendment application in July 2023, notably this was also after the previous adjourned final hearing in May 2023.[6]With regard to the unfair dismissal claim, we accept that the claimant would not have been able to raise this before 29 January 2024, which is the date of her dismissal, however, she could have presented an urgent application to amend upon receipt of the dismissal notice, which was sent to her on 30 January 2024. We note that the claimant submitted an appeal in response to her dismissal yet failed to notify the respondent and the Tribunal that she intended to pursue an unfair dismissal claim.[7]With regard to the harassment and victimisation amendments clarified this morning, it is not clear what dates we are looking at as the claimant states these acts are ongoing, however, the commencement periods are likely to have been a significant period of time ago. In the meantime, the claimant has had the benefit of legal advice in or around July 2023 and these claims are not included in the July 2023 application.[8]The claimant states that it took her almost a year to seek legal advice and cites that as the main reason for the delay. We do not accept this as an adequate explanation for the significant delay in the claimant making the July 2023 amendment application.[9]Other than the unfair dismissal claim, the claimant has had ample opportunity to raise these amendments in front of previous Employment Judges where her claims and issues relating to amendments have arisen. In the preliminary hearing on 5 July 2022 before Employment Judge Walker, considerable time was spent by the judge in discussing the claims and identifying a list of issues. Notably, Employment Judge Walker refers to reasonable adjustments and indirect discrimination claims not being raised by the claimant. Employment Judge Walker pointed out sources of legal advice to the claimant and encouraged her to seek this advice. The claimant did not raise the July 2023 amendments at that hearing, despite these covering the same time periods as the matters relating to contractual sick pay raised by the claimant.[10]The claimant did subsequently progress an application to amend her claim to include claims for harassment and bullying, this was dealt with by Employment Judge Singh at a hearing in May 2023, where the claimant’s applications were refused. Again, she fails to raise the July 2023 amendments at that stage. It is then not until a few months later in July 2023 that the claimant submits an application to amend her claims further to include the 5 claims set out earlier.[11]Turning to the nature of the amendments, we considered each of the requested amendments separately. In relation to all of the amendments, including the unfair dismissal claim, we find that these are substantial amendments, containing new factual and legal issues requiring further evidence and as such any amendment would be adding new claims unconnected with the original claim; this would significantly widen the scope of the Tribunal’s enquiry. We agree that the List of issues agreed at the preliminary hearing all relate to the narrow issue of payment of contractual sick pay, which is pleaded in the alternative in all claims. We also accept the hearing bundle and the evidence of the respondent’s witnesses has been put together on the basis of the list of issues agreed at the preliminary hearing in front of Employment Judge Walker.[12]Weighing up the injustice and hardship to the parties, we note the detailed submissions of the respondent and accept the significant injustice and hardship that would be caused to it should the claimant be allowed to amend her claims so late in the day. Ultimately, in the interests of fairness to the respondent, we agree that this final hearing would have to be vacated and these proceedings would have to go on for many further months, causing the respondent significant cost and prejudice. The injustice and hardship to the respondent is exacerbated further due to the length of time that has elapsed since these matters first arose, further delay is more likely than not to affect the quality of the evidence that they are able to obtain. It is also of note that the final hearing has already been adjourned once previously and on that occasion the claimant also presented an application to amend her claim.[13]In relation to the claimant, we take into account that she is a litigant in person and that she feels she has been hindered by her dyslexia in presenting these applications. We accept injustice and hardship will be caused to her, in that if her claims to amend are not allowed she will be unable to progress these claims. However, she does have substantive claims before us that she is able to pursue. Ultimately, we find the injustice and hardship that would be caused to the respondent significantly outweighs the prejudice to the claimant.[14]For all the reasons set out above and in furtherance of the overriding objective to deal with cases justly, expeditiously and in a way which saves expense and undue delay, we refused the claimant’s applications to amend her claim.
Findings of fact
[15]The respondent is an eye hospital. The claimant was employed by the respondent between 13 May 2019 and 29 January 2024 as an Apprentice Accident & Emergency ‘A&E’ co-ordinator.[16]The claimant presented a claim to the Tribunal on 17 April 2022. This followed a period of ACAS early conciliation from 3 February 2022 to 16 March 2022.[17]The claimant’s claims relate to the period from August 2020 (except for the period from March to April 2021) to April 2022.[18]The Covid-19 Shielding Programme, to which all of the claims relate, commenced on 21 March 2020 and ceased permanently on 1st April 2021. Shielding periods[19]In the UK, measures relating to the Covid-19 pandemic were introduced in March 2020, when the first national lockdown was implemented. One of the measures that was introduced was a Shielding Programme for those deemed clinically vulnerable.[20]The government’s Shielding Programme began in conjunction with the first national lockdown on 21 March 2020 and ended permanently on 1 April 2021; it operated during the following periods as follows: a) 21 March to 31 July 2020 (1st shielding period) b) 1 August 2020 and 3 November 2020 (shielding paused) c) 4 November 2020 to 28 February 2021 (2nd shielding period, explained further below) d) 1 March to 31 March 2021 (3rd shielding period) e) 1 April 2021 onwards (permanently paused)[21]There was a second national lockdown in November 2020, followed by a brief period when restrictions were eased in December 2020 and then a third lockdown commencing in late December 2020/early January 2021. It was unclear from the evidence before us as to the exact dates of the operation of the Shielding Programme between 5 November 2020 and 28 February 2021. For the purposes of our judgment, we adopt the same position as the respondent and shall treat those dates as a single shielding period.[22]The claimant received shielding pay between the following periods when the Shielding Programme was in operation: a) 24 March to 31 July 2020 (1st shielding period) b) 1 March 2021 to 31 March 2021 (3rd shielding period)[23]The claimant took annual leave between 1st April and 21st of April 2021, following which she re-commenced sickness absence, which continued until her employment was terminated by the respondent in January 2024.[24]Between August 2020 and 1 April 2021, when the shielding period came to an end, the claimant was certified as not fit for work by her GP with non-COVID-19 related illness. The Fitness for work statements for this period state the following: 28/07/20 – 04/09/20 – Investigation of vomiting; 05/09/20 – 30/10/20 – Investigation of vomiting; 22/10/20 – 30/12/20 – Investigation of vomiting; 10/12/20 – 28/02/21 – Investigation of vomiting.[25]The respondent accepts that it did require the claimant to use her contractual sick pay between 4 November 2020 and 28 February 2021 as the claimant reported sick and was signed off as unfit for work. At all other times the Shielding Programme was either not operating or the claimant was being paid in accordance with the Programme.
Relevant Law
[26]The respondent’s policy in accordance with national guidelines and the claimant’s employment contract was to pay sick pay not shielding pay in those circumstances. This position is set out in the respondent’s Agenda for Change policy, which sets out provisions for payment for staff who are absent due to illness.[27]Where an individual was off sick and declared not fit to work during any period of government mandated shielding, assuming this was for a reason unrelated to COVID19, their entitlements under the sick pay provisions, set out under section 14, Agenda for Change, NHS terms and conditions of service would be invoked. Section 14.1 provides that “these arrangements are intended to supplement statutory sick pay to provide additional payment during absence due to illness, injury or other disability”.[28]Further clarity is set out in the guidance for NHS Employers on shielding and the appropriate pay where an individual has been off sick with COVID-19 or is off sick with a non-COVID-19 illness. The guidance sets out that where someone is off with a nonCOVID-19 illness, “They should be paid according to the section 14 (England) arrangements of the NHS terms and conditions of service handbook”.[29]During those periods that the claimant received shielding pay, she was not signed off as unfit for work by her GP and was considered fit to work by Occupational Health. The claimant also deemed herself fit for work. Events between February 2020 – April 2021[30]The respondent referred the claimant to Occupational Health (OH) in early February 2020 after the claimant had some short periods of sickness absence. An OH report dated 5 February 2020 records the claimant as fit for work with no underlying health conditions that could impair her performance. Knee pain is mentioned in the report along with a prognosis that this should improve after 4-6 weeks of physiotherapy treatment. Nothing further in relation to knee pain is mentioned either in GP sick notes or OH reports until March 2021.[31]On 25 March 2020, the claimant forwarded her line manager Ms Juliet Dugdill, Service Manager, a text message from the NHS Coronavirus Service, advising her to remain at home for 12 weeks as she was identified as someone at risk of severe illness. The message was generic with no personal information on it and no medical condition specified. In contrast, the 2 comparators that the claimant relies on provided the respondent formal shielding letters from the government identifying them as being within the “extremely vulnerable group” regarding COVID-19. Their medical conditions were also already known to the Trust as they had declared these and made the Trust aware at pre-screening stage.[32]On 9 April 2020, following Ms Dugdill requesting this, the claimant provided a letter addressed to her from the Department of Health and Social Care dated April 2020. As a result, Ms Dugdill referred the claimant to OH for an assessment of fitness to work and for further advice on diagnosis in light of the fact that previous OH advice had not identified any medical conditions, which could lead to the claimant being classed as clinically vulnerable.[33]An OH report dated 23 April 2020 confirmed that the claimant should be classed as clinically extremely vulnerable and certified her fit to work with temporary adjustments to only work from home. It was reported that the claimant was currently shielding following the receipt of a government letter advising her to shield and the claimant had informed OH that she had a condition that affects her red blood cells although no detail was provided in respect of this. OH, confirmed she had no medical symptoms and was fit to work.[34]The respondent gave consideration to the possibility of the claimant working from home, however, due to the lack of IT resources at that time and the level of supervision the claimant required, which she also highlighted, it was ultimately not considered appropriate or feasible for the claimant to work from home.[35]The claimant was recorded as shielding from 24 March 2020 until 27 July 2020 and whilst she was not undertaking any direct work during this period, she was considered fit for work. The claimant was paid her full normal pay for this period and it was not recorded as sickness absence.[36]On 31 July 2020, following the end of the claimant’s shielding period, Ms Dugdill called the Claimant to discuss her return to work post shielding. The claimant informed Ms Dugdill that she did not want to discuss her medical history with anyone and didn’t like speaking to OH or the COVID-19 line, which was staffed by nurses employed by the Trust.[37]At this stage, the claimant did indicate that she was keen to work from home, however, Ms Dugdill explained that the same issues with home working previously identified remained and that a COVID-19 risk assessment, or OH advice, would still be required to facilitate this.[38]On 14 August 2020 the claimant spoke with Ms Dugdill and discussed her symptoms of dizziness and nausea. The claimant said she did not want to talk to OH as they “wind her up” but she would call her GP to arrange a sick certificate. On 18 August 2020, the claimant called Ms Dugdill to advise that she was still unwell and vomiting and having problems sending her GP note in. The claimant eventually provided a GP note covering 28 July 2020 to 4 September 2020, declaring her not fit to work due to “investigation of vomiting”. This was followed by a further 2 GP notes in September and October 2020, declaring her not fit to work due to “investigation of vomiting” to 30 December 2020.[39]On 9 November 2020, the claimant forwarded an email from the Government, dated 4 November 2020 regarding shielding guidance for extremely clinically vulnerable people. The claimant did not say that she was fit to return to work and given her GP notes, Ms Dugdill sought HR advice, which was provided by Ms Debbie Fayomi, Employee Relations Advisor. Ms Fayomi advised that “shielding was only for members of staff who are fit to work, but has been asked to work from home due to being clinically extremely vulnerable (CEV)”.[40]On 18 November 2020, Ms Dugdill wrote to the claimant expressly setting out the HR advice, stating, “Shielding guidelines are for those who are fit to perform work duties but are advised to do this remotely from home and not to attend the workplace due to being at increased risk should you happen to catch COVID-19. If you are subsequently deemed as fit to work when shielding guidelines remain in place then you can be provided with work tasks to carry out remotely, so that we can support you to shield during this time, and this period would then not be classed as sickness absence.” On the same date, Ms Dugdill also made a further referral to OH so that they could advise on how best to support the claimant’s return to work.[41]A further conversation took place on 25 November 2020 between the claimant and Ms Dugdill. During this conversation, the claimant made a reference to non-Hodgkin's lymphoma, advising that her treating specialist did not think that this was the problem. Ms Dugdill advised the claimant that she was welcome to send letters from her consultant but the claimant said she was not keen to do that.[42]In a report of 8 December 2020, OH advised that the claimant was temporarily unfit for work. They advised that the claimant reported suffering with ongoing nausea and vomiting, degenerative changes in the left knee, a blood issue and an underlying medical condition that she did not wish to disclose. With regard to the knee, there was no detail about the impact the degenerative changes had on the claimant’s normal day-to-day activities.[43]On a number of occasions, the claimant told OH that she had underlying medical conditions that she did not want to disclose. None of the occupational health reports refer to the claimant having non-Hodgkin's lymphoma and we find that she did not disclose this condition to the respondent.[44]When the claimant’s sick note expired on 28 February 2021, she confirmed to Ms Fay Trodd, HR Business Partner, that she would not be providing a further sick note after this period. As a result, the respondent put her on shielding pay and referred her to OH to facilitate her return to work including looking at home working options.[45]An OH assessment dated 18 March 2021 concluded that the claimant was fit to undertake her contractual duties and hours with short and long adjustments recommended due to hip and knee pain. The claimant was therefore classed as shielding from 1 to 31 March 2021. Again, as per the 1st period of shielding, for the same reasons, the claimant did not work during this period but was paid her full normal pay.[46]The claimants 2 colleagues, Robert and Roshan whom she relies on as direct comparators, were also recorded as sick and not shielding on various dates, when they were unfit for work during shielding periods. During these periods, they were required to use their contractual sick pay entitlements. The respective race of Robert and Roshan is recorded as black and Asian; one of them is the same race as the claimant who identifies her race as black. One of the comparators is recorded as being aged in their twenties and the other as aged in their thirties. The Claimant is aged in her fifties. Relevant Law Discrimination arising from disability[47]Section 15 of the Equality Act 2010 provides;(1) A person (A) discriminates against a disabled person (B) if— (a) A treats B unfavourably because of something arising in consequence of B's disability, and (b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim.(2) Subsection (1) does not apply if A shows that A did not know, and could not reasonably have been expected to know, that B had the disability.[48]In Gallop v Newport City Council [2013] EWCA Civ 1583, the Court of Appeal highlighted that it is vital for a reasonable employer to consider whether an employee is disabled, and form their own judgment on this issue.[49]The burden of proof in terms of knowledge is on the employer to prove that it was unreasonable for them to have the required knowledge. This is a question of fact for the Tribunal. The burden is on the employer to show it was unreasonable to have the required knowledge.[50]The EHRC Employment Code provides that employers must do all they can reasonably be expected to do to find out whether a worker has a disability. What is reasonable will depend on the circumstances. This is an objective assessment. When making enquiries about disability, employers should consider issues of dignity and privacy and ensure that personal information is dealt with confidentially.[51]S15 (2) provides that the discrimination will not arise if A shows they did not know and could not reasonably be expected to know that B had a disability.[52]There need only be actual or constructive knowledge as to the disability itself, not the causal link between the disability and its consequent effects which led to the unfavourable treatment, see City of York Council v Grosset [2018] EWCA Civ 1105, [2018] IRLR 746, [2018] ICR 1492 CA, para 39.[53]The Respondent need not have constructive knowledge of the complainant's diagnosis to satisfy the requirements of s 15(2); it is, however, for the employer to show that it was unreasonable for it to be expected to know that a person(a) suffered an impediment to his physical or mental health, or(b) that that impairment had a substantial and(c) longterm effect, Donelien v Liberata UK Ltd (2014) UKEAT/0297/14, [2014] at para 5, per Langstaff P.[54]In order for a Claimant to succeed in a claim under section 15, the following must be made out:a. there must be unfavourable treatment;b. there must be something that arises in consequence of the Claimant’s disability;c. the unfavourable treatment must be because of (i.e. caused by) the something that arises in consequence of the disability;d. the alleged discriminator cannot show that the unfavourable treatment is a proportionate means of achieving a legitimate aim.[55]Useful guidance on the proper approach was provided by Mrs Justice Simler in the case of Pnaiser v NHS England [2016] IRLR, EAT: “A Tribunal must first identify whether there was unfavourable treatment and by whom: in other words, it must ask whether A treated B unfavourably in the respects relied on by B. No question of comparison arises………. The “something” that causes the unfavourable treatment need not be the main or sole reason, but must have at least a significant (or more than trivial) influence on the unfavourable treatment, and so amount to an effective reason for or cause of it.”[56]Motives are irrelevant. The focus of this part of the enquiry is on the reason or cause of the impugned treatment and the Respondent’s motive in acting as he or she did is simply irrelevant.[57]The Supreme Court considered this claim in Williams v Trustees of Swansea University Pension and Assurance Scheme [2018] IRLR 306 and confirmed that this claim raises two simple questions of fact: what was the relevant treatment and was it unfavourable to the Claimant?' 'Unfavourable' must be given its normal meaning; it does not require comparison, it is not the same as 'detriment'. A Claimant cannot succeed by arguing that treatment that is in fact favourable might have been even more favourable. The court confirmed that demonstrating unfavourable treatment is a relatively low hurdle.[58]The Supreme Court said that in dealing with a section 15 claim, the first requirement was to identify the treatment relied upon. In that case it was the award of a pension. There was nothing intrinsically unfavourable or disadvantageous about the pension on the facts of this case. On the facts the pension was only available to disabled employees (since the entitlement only arise upon permanent incapacity). While that could be less favourable than someone with a different disability, who may have worked more hours upon cessation of employment, no comparison was needed for the purposes of section 15. The claim failed. The Court emphasised that unfavourable treatment meant what it says and was not a high hurdle to surmount.[59]The Equality and Human Rights Commission Code of Practice contains some provisions of relevance to the question of justification. Paragraph 5.2.1 of the Code suggests that if a Respondent has failed to make a reasonable adjustment it will be very difficult for it to show that its unfavourable treatment of the Claimant is justified. As to justification, in paragraph 4.27 the code considers the phrase “a proportionate means of achieving a legitimate aim” (albeit it in the context of justification of indirect discrimination) and suggested that the question should be approached in two stages:- * is the aim legal and non discriminatory, and one that represents a real, objective consideration? * if so, is the means of achieving it proportionate – that is, appropriate and necessary in all the circumstances.[60]As to that second question, the code goes on in paragraphs 4.30 – 4.32 to explain that this involves a balancing exercise between the discriminatory effect of the decision as against the reasons for applying it, taking into account all relevant facts. It goes on to say the following at paragraph 4.31:- “although not defined by the Act, the term “proportionate” is taken from EU directives and its meaning has been clarified by decisions of the CJEU (formerly the ECJ). EU law views treatment as proportionate if it is an “appropriate and necessary” means of achieving a legitimate aim. But “necessary” does not mean that the [unfavourable treatment] is the only possible way of achieving a legitimate aim; it is sufficient that the same aim could not be achieved by less discriminatory means.”[61]In Chief Constable v Homer 2012 ICR 704 Baroness Hale stated that to be proportionate a measure has to be both an appropriate means of achieving the legitimate aim and reasonably necessary in order to do so. She approved earlier authorities which emphasised the objective must correspond to a real need and the means used must be appropriate with a view to achieving the objective and be necessary to that end. It is necessary to weigh the need against the seriousness of the detriment.[62]The question is whether the action is, objectively assessed, a proportionate means to achieve a legitimate end. The employer has to show (and the onus is on the employer to show) that the treatment is a proportionate means of achieving a legitimate aim. The Tribunal can take account of the reasonable needs of the Respondent’s business but the Tribunal must make its own judgment as to whether the measure is reasonably necessary. There is no room for the range of reasonable response test. Direct discrimination 38. Section 13 of the Equality Act 2010 provides as follows; A person(a) (A) discriminates against another(b) (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others”. Burden of Proof 39. Section 136 of the Equality Act 2010 provides; (2) If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred. (3) But subsection (2) does not apply if A shows that A did not contravene the provision. 40. In Islington Borough Council v Ladele [2009] ICR 387 Mr Justice Elias explained the essence of direct discrimination as follows: “The concept of direct discrimination is fundamentally a simple one. The claimant suffers some form of detriment (using that term very broadly) and the reason for that detriment or treatment is the prohibited ground. There is implicit in that analysis the fact that someone in a similar position to whom that ground did not apply (the comparator) would not have suffered the detriment. By establishing that the reason for the detrimental treatment is the prohibited reason, the claimant necessarily establishes at one and the same time that he or she is less favourably treated than the comparator who did not share the prohibited characteristic.” 41. Burrett v West Birmingham Health Authority 1994 IRLR 7, EAT is an example of the proposition that it is for the tribunal to decide as a matter of fact what is less favourable treatment and the test posed by the legislation is an objective one. The fact that a Claimant believes that he or she has been treated less favourably does not of itself establish that there has been less favourable treatment, although the Claimant’s perception of the effect of treatment is likely to be relevant as to whether, objectively, that treatment was less favourable. 42. In order for a disadvantage to qualify as a “detriment”, it must arise in the employment field, in that ET must find that by reason of the act or acts complained of a reasonable worker would or might take the view that he had thereby been disadvantaged in the circumstances in which he had thereafter to work. An unjustified sense of grievance cannot amount to “detriment”. However, to establish a detriment, it is not necessary to demonstrate some physical or economic consequence, Shamoon v Chief Constable of RUC [2003] UKHL 11. 43. Igen v Wong and Others [2005] IRLR 258 and Madarassy v Nomura International PLC [2007] IRLR 246. The employment tribunal should go through a two-stage process, the first stage of which requires the Claimant to prove facts which could establish that the Respondent has committed an act of discrimination, after which, and only if the Claimant has proved such facts, the Respondent is required to establish on the balance of probabilities that it did not commit the unlawful act of discrimination. In concluding as to whether the Claimant had established a prima facie case, the tribunal is to examine all the evidence provided by the Respondent and the Claimant. 44. Madarrassy v Nomura International Ltd 2007 ICR 867 - the bare facts of the difference in protected characteristic and less favourable treatment is not “without more, sufficient material from which a tribunal could conclude, on balance of probabilities that the Respondent” committed an act of unlawful discrimination”. There must be “something more”. 45. Nagarajan v London Regional Transport [1999] IRLR 572, HL,-“The crucial question in every case was, 'why the complainant received less favourable treatment ………… Was it on grounds of race? Or was it for some other reason, for instance, because the complainant was not so well qualified for the job?'” 46. Chief Constable of West Yorkshire Police v Khan [2001] UKHL 48, [2001] IRLR 830, [2001] ICR 1065, HL, - The test is what was the reason why the alleged discriminator acted as they did? What, consciously or unconsciously was their reason? Looked at as a question of causation ('but for …'), it was an objective test. The anti-discrimination legislation required something different; the test should be subjective: 'Causation is a legal conclusion. The reason why a person acted as he did is a question of fact.' Time limits 47. Section 123 of the Equality Act 2010 provides as follows; (1) [Subject to [sections 140A and 140B],] proceedings on a complaint within section 120 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. 48. British Coal Corporation v Keeble [1997] IRLR 336, it was held that the Tribunal’s power to extend time was similarly as broad under the ‘just and equitable’ formula. However, it is unnecessary for a tribunal to go through the above list in every case, ‘provided of course that no significant factor has been left out of account by the employment tribunal in exercising its discretion’ 49. (Southwark London Borough v Afolabi [2003] IRLR 220). Robertson and Bexley Community Centre (trading as Leisure Link) 2003 IRLR 434CA - there is no presumption that time should be extended to validate an out of time claim unless the Claimant can justify the failure to issue the claim in time. The Tribunal cannot hear a claim unless the Claimant convinces the Tribunal that it is just and equitable to extend time so the exercise of the discretion is the exception rather than the rule. 50. Abertawe Bro Morgannwg University v Morgan [2018] EWCA Civ 640 - the "such other period as the employment tribunal thinks just and equitable" extension indicates that Parliament chose to give the tribunal the widest possible discretion. Although there is no prescribed list of factors for the tribunal to consider, "factors which are almost always relevant to consider are: (a) the length of, and reasons for, the delay and (b) whether the delay has prejudiced the Respondent”. 51. The Court of Appeal made it clear in Hendricks v Metropolitan Police Commissioner [2002] EWCA Civ 1686, that in cases involving a number of allegations of discriminatory acts or omissions, it is not necessary for an applicant to establish the existence of some 'policy, rule, scheme, regime or practice, in accordance with which decisions affecting the treatment of workers are taken'. Rather, what she has to prove, in order to establish 'an act extending over a period', is that (a) the incidents are linked to each other, and (b) that they are evidence of a 'continuing discriminatory state of affairs'. The focus of the enquiry should be on whether there was an “ongoing situation or continuing state of affairs” as opposed to “a succession of unconnected or isolated specific acts”. It will be a relevant, but not conclusive, factor whether the same or different individuals were involved in the alleged incidents of discrimination over the period. An employer may be responsible for a state of affairs that involves a number of different individuals. 52. Section 23 Employment Rights Act 1996, provides as follows: Subject to subsection (4), an [employment tribunal] shall not consider a complaint under this section unless it is presented before the end of the period of three months beginning with— (a) in the case of a complaint relating to a deduction by the employer, the date of payment of the wages from which the deduction was made, or (b) in the case of a complaint relating to a payment received by the employer, the date when the payment was received. (3) Where a complaint is brought under this section in respect of— (a) a series of deductions or payments, or (b) a number of payments falling within subsection (1)(d) and made in pursuance of demands for payment subject to the same limit under section 21(1) but received by the employer on different dates, the references in subsection (2) to the deduction or payment are to the last deduction or payment in the series or to the last of the payments so received. (4) Where the [employment tribunal] is satisfied that it was not reasonably practicable for a complaint under this section to be presented before the end of the relevant period of three months, the tribunal may consider the complaint if it is presented within such further period as the tribunal considers reasonable. 53. In Dedman v British Building and Engineering Appliances Ltd 1974 1 All ER 520) Lord Denning stated, "it is simply to ask this question: has the man just cause or excuse for not presenting his complaint within the prescribed time?". S.111(2)(b) ERA [and other corresponding provisions in ERA such as s.48(3)] should be given a ‘liberal construction in favour of the employee’. 54. When a Claimant knows of the right to bring a claim, he/she is not obliged to seek legal advice on enforcing that right, but Ignorance of the law or time limits does not necessarily make a delay reasonably practicable. 55. In Flynn v Warrior Square Recoveries Ltd 2014 EWCA Civ 68, CA, the Court of Appeal stressed the need for tribunals to identify with precision the act or deliberate failure to act that is alleged to have caused detriment when considering whether an act/omission extended over a period of time for the purposes of s.48(4)(a). It is a mistake in law to focus on the detriment and whether the detriment continued. 56. In Royal Mail Group Ltd v Jhuti EAT 0020/16, the EAT held that it was irrelevant for the purposes of extending time under S.48(3)(a) that the out-of-time proven acts may have had continuing consequences in terms of the detriment experienced by the Claimant. S.48(3)(a)was concerned with when the act or failure to act occurs, not with when the consequence of that act or failure to act is felt or suffered. 57. The concept of “a series of similar acts” for the purpose of S.48(3)(a) is distinct from that of an act extending over a period of time in the context of S.48(4)(a). In Arthur v London Eastern Railway Ltd (t/a One Stansted Express) 2007 ICR 193, CA, the Court of Appeal held that S.48(3)(a) could cover a situation where the complainant alleges a number of acts of detriment by different people where, on the facts, there is a connection between the acts or failures to act in that they form part of a ‘series’ and are ‘similar’ to one another. 58. At para [45], LJ Lloyd stated that in deciding this question “it must be sensible to consider the evidence as to each act relied on before deciding (a) whether they are part of a series at all and (b) whether they are sufficiently linked factually to be “similar” acts”. Oxfordshire County Council v Meade UKEAT/0410/14), in order to form part of a continuing act for the purposes of both the whistleblowing and victimisation claims, the acts relied upon must be unlawful. What is reasonably practicable is a question of fact and thus a matter for the tribunal to decide. 59. LJ Shaw said in Wall’s Meat Co Ltd v Khan 1979 ICR 52, CA: “The test is empirical and involves no legal concept. Practical common sense is the keynote….”. The onus of proving that presentation in time was not reasonably practicable rests on the Claimant. “That imposes a duty upon him to show precisely why it was that he did not present his complaint” — Porter v Bandridge Ltd 1978 ICR 943, CA. Even if a Claimant satisfies a tribunal that presentation in time was not reasonably practicable, that does not automatically decide the issue in his or her favour. 60. The tribunal must then go on to decide whether the claim was presented “within such further period as the tribunal considers reasonable”. Lady Smith in Asda Stores Ltd v Kauser EAT 0165/07 explained it in the following words: “the relevant test is not simply a matter of looking at what was possible but to ask whether, on the facts of the case as found, it was reasonable to expect that which was possible to have been done”. Discussion & Conclusions 61. In terms of approach we initially determined if there had been breaches of the Equality Act before moving on to determine the time limits question, if it remains necessary. This is in accordance with the dicta in South Western Ambulance service NHS Foundation Trust v King 2020 IRLR 168, which prohibits non-discriminatory acts from being part of a “conduct extending over a period” of time. 62. Each head of claim concerns a single factual premise, which is that the respondent required the claimant to use her contractual sick pay when she was shielding during the period August 2020 to April 2022. Direct Age, disability and race discrimination. LoI 3.1 Did the respondent, in the period from August 2020 to April 2022 (except for the period from March-April 2021) require the claimant to use her contractual sick pay, when she was shielding due to her clinical vulnerability?[63]The respondent admits the claimant was required to use her contractual sick pay during the shielding period 5 November 2020 to 28 February 2021. At all other times the shielding programme was paused and so, although the claimant was paid sick pay because she was off sick, these were not times when she was also “shielding due to her clinical vulnerability”.[64]We agree with the respondent’s assertion that the claim is fundamentally misconceived in relation to periods when the shielding programme was paused, namely 1st of August 2020 to 5th of November 2020 and April 2021 onwards. It is not arguable that the claimant had an entitlement to shielding pay during those periods. LoI 3.2 Was that less favourable treatment?[65]Paying the claimant contractual sick pay instead of shielding pay was not less favourable treatment. The claimant was required to use her contractual sick pay during the shielding period 5 November 2020 to 28 February 2021 because she was signed off sick.[66]With regards to the shielding period, 5 November 2020 to 28 February 2021 the claimant was not contractually entitled to shielding pay. The claimant was off sick with nonCOVID-19 related illness and therefore was contractually entitled to be paid normal sick pay only in accordance with section 14 Agenda for Change, NHS terms and conditions.[67]The claimant’s two colleagues who were also shielding whom she relies on as comparators were also recorded as sick, not shielding, when they were unfit for work during shielding periods. Notably, one of the comparator was the same race as the Claimant.[68]We accept the respondents submissions that Robert and Roshan were not appropriate statutory comparators because there were material differences in their circumstances. We repeat paragraphs 31 and 46 in this regard. However, as evidential comparators they evidence that a hypothetical comparator in materially the same circumstances as the claimant but without her disabilities or of a different age or different race would have been treated in the same way i.e. recorded as sick and paid contractual sick pay when they were off sick during periods of shielding. Accordingly, we conclude, there was no less favourable treatment. LoI 3.3 If so, was it because of the Claimant’s disability, age or race?[69]If we are wrong about that, we conclude that even if there was less favourable treatment, the respondent has shown a genuine non-discriminatory reason for paying contractual sick pay, namely that the claimant was signed off sick at all times by her GP with a noncovid-19 illness, and the respondent’s policy, in line with national guidelines, was to pay normal sick pay in those circumstances.[70]We conclude that the respondent was acting in accordance with policy at all relevant times; this is supported by the fact that Ms Dugdill recorded the claimant as on sick following HR advice from Ms Fayomi in November 2020. Further, in February 2021 when the claimant said she would not provide any further GP Fit Notes, the respondent put her on shielding pay and Ms Dugdill took steps to facilitate her return to work by referring her to Occupational Health to look at home working options.[71]With regard to the treatment being because of her disabilities, the claimant relies on the following disabilities, dyslexia, non-Hodgkin’s lymphoma and arthritis to her knee and hip. The respondent admits all 3 conditions are disabilities.[72]Whilst the respondent concedes knowledge of dyslexia, we accept the respondent’s position and conclude there is nothing in the evidence that the claimant has advanced that suggests the respondent paid contractual sick pay instead of shielding pay because of the claimant’s dyslexia.[73]Regarding non-Hodgkin's lymphoma, we conclude that the respondent did not know the claimant had this condition at the time. The documentary evidence shows that the claimant repeatedly chose not to disclose this condition to the respondent. None of the occupational health reports refer to the claimant having non-Hodgkin's lymphoma. The claimant repeatedly told occupational health that she had underlying medical conditions that she did not want to disclose. Additionally none of the claimants GP fitness cited this condition as the reason for her sickness absence.[74]The claimant similarly chose to withhold her underlying condition during her conversations with Ms Dugdill. In a conversation on 25 November 2020 with Ms Dugdill, whilst the claimant mentioned non-Hodgkin's lymphoma, she told her that her treating specialist did not think that this was the problem. During the same conversation Ms Dugdill said the claimant was welcome to send letters from her consultant but the claimant said she was not keen to do that.[75]With regards to her knee and hip, we conclude that the respondent did not know that the claimant was disabled by this condition until it received the 18 March 2021 OH report. The respondent initially referred the claimant to occupational health in early February 2020 after the claimant had some short periods of sickness absence. After 5 February 2020 the claimant was not reported to be unwell because of knee and or hip issues. The claimant was signed off from work from August 2020 to 28 February 2021 for “investigation of vomiting”. The OH report dated 8 December 2020 referred to degenerative changes in the left knee but with no detail about the impact that had on the claimant normal day-to-day activities.[76]In light of all these factors, we conclude that the respondent did not know or ought to have known that the condition was disabling at that point either. In March 2021 the claimant was referred to OH again and from receipt of the report dated 18 March 2021 the respondent accepts and we conclude that it had actual knowledge of this disability.[77]The claimants GP fit notes state the reason she was unfit for work from August 2020 to 28 February 2021 was investigation of vomiting. There is no medical evidence that shows that her vomiting symptoms arose from her dyslexia, non Hodgkin's lymphoma, or arthritis to her knee and consequential deterioration of her hip.[78]Similarly, there is nothing at all in the evidence from which we could infer that the reason for the treatment was the Claimant’s age or race. Regarding race, the claimant’s named comparators, Roshan and Robert were black and asian, so one of them was the same race as the claimant, further corroborating the respondent’s evidence that the reason for the treatment was not because any of the protected characteristics. LoI 3.4 Did the Respondent’s treatment amount to a detriment?[79]We conclude the complaint in respect of periods when the government shielding programme was paused is an unjustified sense of grievance because the claimant had no entitlement to shielding pay at such times.[80]The complaint is also an unjustified sense of grievance in respect of the shielding period 5 November 2020 to 28 February 2021, because the claimant was continually signed off as unfit for work during that time. We accept the respondent’s submissions that if she had been paid full pay shielding pay the claimant would, in effect, have been unjustly enriched because of the pandemic, at the cost of the NHS public purse. It would also have been contrary to national guidelines and her contract of employment.[81]The claimant says that she was forced to provide GP fitness by Ms Dugdill and that she was in fact well enough to work from home, however, we conclude these assertions are unsupported by the documentary evidence.[82]When the first shielding period came to an end at the end of July 2020, Ms Dugdill engaged with the claimant about returning to work by sending her a risk assessment and by offering an occupational health referral. In due course the claimant provided a GP fit note that showed she had in fact been signed off as unfit for work on 28 July 2020.[83]The claimant's GP consistently signed her off as unfit for any work from 28 July 2020 to 28 of February 2021. Additionally, in the claimant’s communications with Ms Dugdill she was repeatedly advising that she was unwell, rather than saying she was fit to work from home during this period. Further, on 8 December 2020, OH assessed the claimant and deemed her temporarily unfit for work. All the evidence, covering this time period, supports our conclusion that the claimant was unfit to work at all between 28 July 2020 and 28 February 2021. The claimant presented no evidence to the contrary.[84]In conclusion, we dismiss the claimant’s direct disability, age and race discrimination complaints. Section 15 discrimination arising from disability LoI 4.1 Did the Respondent treat the Claimant unfavourably by requiring her to use her contractual sick pay, rather than applying its policy to pay shielding employees?[85]For the period 1 August 2020 to 5 November 2020, and 1 April 2021 onwards, we conclude there was no unfavourable treatment because the Claimant had no entitlement to shielding pay at those times.[86]With regard to the shielding period 5 November 2020 to 28 February 2021, the respondent accepts that this was unfavourable when compared to shielding pay because the contractual sick pay entitlement reduced over time, whereas shielding pay would have been paid as full pay. LoI 4.2 Did the following things arise in consequence of the Claimant’s disability: the Claimant’s inability to work[87]We repeat paragraphs 72 to 77 of our conclusions. The burden is on the claimant to prove that her inability to work arose from her disabilities and she has failed to do so. LoI 4.3 Was the unfavourable treatment because of [the Claimant’s inability to work]?[88]If we are wrong about that, we went on to consider whether the claimant’s treatment was because of her inability to work and whether the treatment was a proportionate means of achieving a legitimate aim.[89]We repeat paragraphs 65 and 66 of our conclusions in that the respondent required the claimant to use her contractual sick pay because she was signed off sick by her GP in accordance with national guidance and her contract of employment. The unfavourable treatment was not because of her inability to work. LoI 4.4/4.5 Was the treatment a proportionate means of achieving a legitimate aim?[90]The respondent set out the following legitimate aims:a. Compliance with national guidance issued by the Department of Health and Social Care regarding sickness absence pay for employees off sick with non-Covid-19 Illness;b. Compliance with the claimant’s contractual sick pay entitlement; andc. Effective control and management of Trust resources and prevention of “unjust enrichment” (i.e. employees benefitting financially at the expense of the NHS public purse) due to the pandemic.[91]We conclude these are legitimate aims, in particular given the respondent is a publicly funded NHS Trust providing a vital public service with limited, publicly funded, resources. Paying the claimant contractual sick pay in accordance with the terms of her contract and national guidance was appropriate and reasonably necessary to achieving those aims. 4.5.2 Could something less discriminatory have been done instead?[92]The alternative of paying the claimant shielding pay would have meant the claimant benefitting financially from the pandemic at the respondent’s expense and the respondent departing from national guidelines as well as the claimant’s contractual entitlement. This was not an appropriate or reasonable alternative option. 4.5.3 How should the needs of the claimant and the respondent be balanced?[93]The needs of the claimant and respondent were appropriately balanced by the respondent’s policy, in line with national guidelines. 4.6 Did the Respondent know or could it reasonably have been expected to know that the claimant had a the disability? From what date?[94]We repeat paragraphs 72 to 77 of our conclusions, regarding the respondent’s knowledge of disability.[95]We conclude the respondent had no actual knowledge that the claimant had nonHodgkin’s lymphoma during the relevant time, and no actual knowledge that the claimant was disabled by arthritis to the knee and consequential deterioration of the hip prior to 18 March 2021.[96]In this case the respondent did all it could reasonably be expected to do to find out if the claimant had a disability. The documentary evidence supports our conclusion that the respondent repeatedly referred the claimant to occupational health to try to understand her health position. Ms Dugdill also had regular contact with the claimant during her sickness absence during which she repeated repeatedly enquired as to how the claimant was.[97]In conclusion, we dismiss the claimant’s s.15 discrimination arising from disability claim. Unauthorised deduction from wages[98]The claimants unlawful deduction from wages claim is limited to the allegation that £8176.02 was deducted by the respondent because it required her to use her contractual sick pay and it did not apply its policy to her to pay shielding employees in full.[99]To succeed in her unlawful deduction from wages claim the claimant must prove that she had a legal entitlement to be paid shielding pay in the period August 2020 to April 2022, she claims that she had a legal entitlement because she was advised by the government to shield.[100]As we concluded earlier, the claim is fundamentally misconceived in relation to periods when the shielding programme was paused, namely 1st of August 2020 to 5th of November 2020 and April 2021 onwards. It is not arguable that the claimant had an entitlement to shielding pay during those periods.[101]With regards to the shielding period, 5 November 2020 to 28 February 2021 the claimant was not contractually entitled to shielding pay because although she had been advised by the government to shield, shielding employees were only contractually entitled to shielding plate pay if they were fit for work. If they were off sick they were entitled to full sick pay if the illness was COVID-19 related or normal sick pay if the illness was non COVID-19 related.[102]The claimant was off sick with non-COVID-19 related illness and therefore was contractually entitled to be paid normal sick pay only i.e. sick pay in accordance with section 14 agenda for change.[103]The unlawful deduction from wages claim therefore fails because the claimant has not proven a contractual entitlement to be paid shielding pay during the relevant time. Time Limits[104]As we have found none of the claims proven the time limits issue no longer falls to be considered.
The Law
[1]I have undertaken preliminary consideration of the claimant's application for reconsideration of the judgment dismissing her claims. That application is contained in an email dated 24 July 2024 and simply states that the claimant seeks a reconsideration as she believes that the tribunal made mistakes in the way it reached its decision. The Law[2]An application for reconsideration is an exception to the general principle that (subject to appeal on a point of law) a decision of an Employment Tribunal is final. The test is whether it is necessary in the interests of justice to reconsider the judgment (rule 70).[3]Rule 72(1) of the 2013 Rules of Procedure empowers me to refuse the application based on preliminary consideration if there is no reasonable prospect of the original decision being varied or revoked.[4]The importance of finality was confirmed by the Court of Appeal in Ministry of Justice v Burton and anor [2016] EWCA Civ 714 in July 2016 where Elias LJ said that: “the discretion to act in the interests of justice is not open-ended; it should be exercised in a principled way, and the earlier case law cannot be ignored. In particular, the courts have emphasised the importance of finality (Flint v Eastern Electricity Board [1975] ICR 395) which militates against the discretion being exercised too readily; and in Lindsay v Ironsides Ray and Vials [1994] ICR 384 Mummery J held that the failure of a party's representative to draw attention to a particular argument will not generally justify granting a review.”[5]Similarly in Liddington v 2Gether NHS Foundation Trust EAT/0002/16 the EAT chaired by Simler P said in paragraph 34 that: “a request for reconsideration is not an opportunity for a party to seek to re-litigate matters that have already been litigated, or to reargue matters in a different way or by adopting points previously omitted. There is an underlying public policy principle in all judicial proceedings that there should be finality in litigation, and reconsideration applications are a limited exception to that rule. They are not a means by which to have a second bite at the cherry, nor are they intended to provide parties with the opportunity of a rehearing at which the same evidence and the same arguments can be rehearsed but with different emphasis or additional evidence that was previously available being tendered.”[6]In common with all powers under the 2013 Rules, preliminary consideration under rule 72(1) must be conducted in accordance with the overriding objective which appears in rule 2, namely to deal with cases fairly and justly. This includes dealing with cases in ways which are proportionate to the complexity and importance of the issues, and avoiding delay. Achieving finality in litigation is part of a fair and just adjudication. The Application/Conclusion[9]The claimant has provided no details in respect of her assertion that the Tribunal made mistakes in the way that it reached its decision. In light of this, I am satisfied that there is no reasonable prospect of the original decision being varied or revoked. The points of significance were considered and addressed appropriately at the hearing. The application for reconsideration is refused.[1]This case was heard over 5 days at London Central Employment Tribunal between 12 to 16 February 2024. The claimant pursued claims of: a) Direct age, race and disability discrimination; b) Discrimination arising from Disability; and c) Unauthorised deduction from wages. Each head of claim related to the complaint that the Respondent required the Claimant to use her contractual sick pay when she was shielding during the period from August 2020 to April 2022 (except for the period from March-April 2021).[2]On 10 July 2024, the Tribunal promulgated its reserved judgment dismissing the claimant’s claims in their entirety. On 7 August 2024, the respondent submitted a costs application, unfortunately, this was not forwarded to the Judge until 11 October 2024. In the meantime, in July 2024, the claimant had applied for a reconsideration of the Tribunal’s judgment and submitted an appeal to the Employment Appeal Tribunal in August 2024. Application & Submissions[3]The respondent’s cost application is made under Rule 76(1)(a) and (b) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013, these rules have since been superseded by Rule 74 (2) (a) and (b) of the Employment Tribunal Procedure Rules 2024 (“ET Rules 2024”). For clarity, there is no substantive change to the Employment Tribunal Rules in respect of costs and the relevant rules applied for the purposes of this judgment are the ET Rules 2024.[4]The respondent’s application is for costs up to £20,000 (plus VAT) which it has incurred in defending the claim. In summary the respondent contends that the claimant has acted unreasonably and vexatiously in her pursuit of the claim and/or pursued a claim which had no reasonable prospects of success.[5]The respondent relies in full upon the Judgment of the Employment Tribunal, which concluded that all claims were not well-founded and dismissed. In particular the respondent highlights the Tribunals findings that the claim was fundamentally misconceived in relation to periods when the shielding period was paused and that the claimant had an unjustified sense of grievance because she had no entitlement to shielding pay during such times.[6]The respondent submits that the claimant has failed, on numerous occasions, either without explanation or without good cause, to comply with the directions from the Tribunal. The respondent contends that the claimant has regularly sought to amend her claim without providing any sufficient particulars (despite clear directions from the Tribunal) and also having clear guidance and assistance from an Employment Judge at the case management Preliminary Hearing.[7]The respondent contends that the manner in which the proceedings have been conducted by the claimant was unreasonable and this has led to significant additional and unnecessary cost to the respondent.[8]The respondent issued a costs warning on 6 February 2023. The costs warning set out in detail why the respondent considered that the claim had no merits and why its pursuit was therefore unreasonable. The respondent submits that the content of the costs warning provided a very clear rationale as to why the claimant’s claims had no reasonable prospects.[9]The respondent further submits that the findings from the Employment Tribunal are in line with the content of the costs warning. The costs warning also set out the implications of the costs warning and that the respondent may seek to recover their legal costs in defending the claim in the event that the claimant chooses to still pursue her claim and loses at Tribunal.[10]As to the issue of the claimant’s means to pay, the respondent indicated that it was unaware as to whether the claimant has secured alternative employment since her dismissal from the respondent on 29 January 2024. It submitted that she should nonetheless reasonably be expected to have secured a new income or have savings to meet any award made by the Tribunal. The respondent reserved the right to make further submissions on the issue of means following receipt of information from the claimant on the same. The claimant provided her means information in November 2024 and updated information in June 2025, the respondent did not make any further representations in relation to this.[11]In October 2024, the Tribunal wrote to the parties seeking the claimant’s response to the respondent’s costs application.[12]The claimant responded on 1 November 2024 stating that she was facing significant financial challenges that impacted her ability to afford costs associated with the employment tribunal. She stated that she was a litigant in person with no legal background. She stated that she encountered difficulties in obtaining consistent legal advice and had to rely on one stop advice sessions, which she believes contributed greatly to mistakes made in her case. She stated that she made two mistakes, firstly that she did not complete her ET1 form correctly as she was advised to amend her claim which she did in time but she failed to copy in the respondent, which was her second mistake.[13]The claimant disputed that she was vexatious or disruptive but given the stressful circumstances and her dyslexia, she found that troubling and problematic during the employment tribunal where discrimination was being discussed.[14]The claimant stated that she was prepared to settle if the respondent had made her a fair offer but instead they sought to bully her into a drop hands agreement. She stated that this only added to her stress and by the time of the final hearing, she submitted that she could barely state her own name let alone fight her case.[15]In terms of her financial circumstances, the claimant stated that she was in receipt of universal credit of £1,108 and was consistently between £150 - £200 pounds “in the minus” on a monthly basis as her rent alone was £800. She stated that she had no money and was amassing debt on a monthly basis as well as having to decide whether to eat or pay a bill.[16]The claimant further stated that she has not acted unreasonably in trying to access her rights and seek justice in respect of her employer’s unreasonable behaviour.[17]The claimant’s response was not forwarded to the Judge until 5 December 2024, at that point as there was an outstanding appeal no further action was taken in respect of the respondent’s costs application.[18]It was not until June 2025 when the respondent wrote to the Tribunal requesting an update on the costs application that the matter was referred to the Judge for further consideration. The parties were then asked whether they consented to the costs application being dealt with by Judge sitting alone and based on written representations or if not to provide their availability for the next 6 months. The claimant was also asked to provide updated evidence of her income and outgoings.[19]In June 2025, as updated proof of her income, the claimant produced written evidence of her universal credit entitlement and payment of approximately £1556.56 per month, which included an element for her limited capability to work. This was an assessment for the period 20 May to 19 June 2025. The Universal Credit letter also set out that the claimant had indicated she had no savings.[20]In terms of expenses the claimant attached a post office receipt from May 2025, evidencing monthly bill payments of approximately £920. Further, the claimant produced an email indicating council tax arrears over the last 4 years.[21]The claimant also produced supporting letters from her sister and friend both confirming that they had borrowed significant amounts of money to the claimant to support her with day to day to day living costs but that they would struggle to do so moving forward due to their own financial circumstances changing.[22]Due to administrative errors the claimant’s email of 31 July 2025, confirming that she also consented to the costs applications being dealt with on the basis of written representations and by judge sitting alone was not forwarded to the Judge until 8 October 2025. By this time further delay had resulted in attempting to reconvene the original Tribunal and list the application for hearing.
Relevant Law
[26]Rule 74 of the ET Rules 2024 provides (so far as relevant):(1) The Tribunal may make a costs order or a preparation time order (as appropriate) on its own initiative or on the application of a party or, in respect of a costs order under rule 73(1)(b), a witness who has attended or has been ordered to attend to give oral evidence at a hearing.(2) The Tribunal must consider making a costs order or a preparation time order where it considers that - a) a party (or that party’s representative) has acted vexatiously, abusively, disruptively or otherwise unreasonably in either the bringing of the proceedings, or part of it, or the way that the proceedings, or part of it, have been conducted b) the claim, response or reply had no reasonable prospect of success, or c) …. These are sometimes referred to as the threshold tests for an award of costs.[27]Rule 76 of the ET Rules 2024 addresses the amount of a costs order, as follows (so far as relevant):(1) A costs order may order the paying party to pay – a) the receiving party a specified amount, not exceeding £20,000, in respect of the costs of the receiving party; b) the receiving party the whole or a specified part of the costs of the receiving party, with the amount to be paid being determined – i. in England and Wales, by way of detailed assessment carried out either by a county court in accordance with the Civil Procedure Rules 1998, or by the Tribunal applying the same principles; ii. ….. c) …. d) ….(2) …..(3) A costs order under sub-paragraphs (b) to (d) of paragraph (1) may exceed £20,000.[28]Rule 82 of the ET Rules 2024 provides: In deciding whether to make a costs order, preparation time order, or wasted costs order, and if so the amount of any such order, the Tribunal may have regard to the paying party’s (or, where a wasted costs order is made, the representative’s) ability to pay. Therefore the Tribunal has some discretion as to whether or not to take into account the claimant’s ability to pay. However, if the Tribunal does not take it into account, it should give its reasons for not doing so (Jilley v Birmingham and Solihull Mental Health NHS Trust UKEAT/0584/06 and UKEAT/0155/07).[29]Although the threshold tests are the same whether or not a party is legally represented, a litigant in person should not be judged by the standards of a professional representative (AQ Ltd v Holden [2012] UKEAT/0021/12/CEA).[30]When considering the question of unreasonable conduct, “unreasonably” should be given its ordinary English meaning and the Tribunal should take into account the nature, gravity and effect of the party’s conduct (although not necessarily separated into individual sections) (Dyer v Secretary of State for Employment [1983] UKEAT 183/83 and Yerrakalva v Barnsley Metropolitan Borough Council and anor 2012 ICR 420, CA). A party’s conduct as a whole may amount to unreasonable conduct and making unsubstantiated allegations is capable of amounting to unreasonable conduct (Sahota v Dudley Metropolitan Borough Council EAT 0821/03). Every aspect of the proceedings is relevant, however the Tribunal should bear in mind that there may be more than one reasonable course of conduct to take (and must not substitute its view) (Mrs S Solomon v University of Hertfordshire and Hammond UKEAT/0258/18/DA).[31]Where the threshold test under Rule 74 of the ET Rules 2024 has been met for an award of costs, it is still necessary for the Tribunal to decide whether to exercise its discretion in favour of the receiving party, having regard to all the circumstances (Yerrakalva, above). In essence it is a three stage test:a. Has the costs threshold been met?b. Does the Tribunal consider it appropriate to exercise its discretion to award costs, having regard to all the circumstances?c. If so, what award is made (or what percentage of the party’s total costs is to be awarded if the matter is to be referred on for detailed assessment)?[32]Whether or not a costs warning letter was sent is relevant but not determinative: the weight it should be given will depend on the circumstances of the case (Vaughan, above and Rogers v Dorothy Barley Schol EAT 0013/12). Refusal to accept a settlement offer can be taken into account (Kopel v Safeway Stores [2003] IRLR 753).[33]Costs are intended to be compensatory rather than punitive, and are limited to those reasonably and necessarily incurred by the other party. They are the exception and not the rule (Yerrakalva, above).[34]A precise link between the unreasonable conduct and the costs incurred is not required (D’Silva v NATFHE [2009] UKEAT 0126/09 and Salinas v Bear Stearns International Holdings Inc and anor 2005 ICR 1117, EAT). In Sud v Ealing London Borough Council 2013 ICR D39, CA, it was held that the process did not entail a detailed or minute assessment, but rather a broad-brush approach taking into account the relevant circumstances.[35]A costs award can be made even where a party cannot afford to pay it immediately (Vaughan, above) and the possibility that the party’s financial circumstances may improve in future can be taken into account (Chadburn v Doncaster & Bassetlaw Hospital NHS Foundation Trust UKEAT/0259/14/LA). Discussion & Conclusions[49]I reminded myself that Rule 74(1) and(2) of the ET Rules 2024, state that the Tribunal ‘may make’ and ‘must consider’ a costs order in certain circumstances. Ultimately, the Tribunal is left with a wide discretion.[50]I start with the general proposition that costs awards are fact specific. The discretion should be exercised in accordance with the overriding objective to achieve the outcome which is fair and just in the circumstances.[51]The claimant is a litigant in person and I do not hold her to as high a standard as I would a legally represented person. She is nevertheless capable of understanding concepts that are explained to her, including the costs warning, which set out in detail why the respondent considered the claim had no merit and why its pursuit was therefore unreasonable.[52]In its final merits hearing Judgment, the Tribunal agreed with the respondent and concluded that the claim was fundamentally misconceived. The Tribunal concluded that it was not arguable that the claimant had an entitlement to shielding pay during periods when the shielding programme was paused. I find that it should have been obvious to the claimant that the claim had no merit and that its pursuit was unreasonable, particularly in light of the costs warning on 6 February 2023.[53]I find the claimant has sought to amend her claim on a number of occasions without providing sufficient particulars including at 2 listings of the Final Hearing. During this process, the claimant has had the benefit of clear guidance and assistance from Employment Judge’s at the case management Preliminary Hearing, then at the initial final merits hearing listing which was adjourned. Despite this the claimant still attended the adjourned final merits hearing pursuing an amendment application which had not been properly particularised.[54]I note that the claimant also had the benefit of legal advice at various points throughout the proceedings. Whilst she contends that this advice was not consistent as she attended “one stop shops”; nevertheless, this was still legal advice which had been obtained on more than one occasion. This was in addition to guidance from Tribunal judges. In all of those circumstances, I determine that the threshold for unreasonable conduct and the claim having no reasonable prospect of success under Rule 74 (2) (a) and (b) of the Employment Tribunal Rules of Procedure 2024 has been met.[55]However, the Tribunal retains discretion as to whether to make a costs award, even where the threshold is satisfied. In exercising that discretion, I have considered all relevant circumstances, including the claimant’s status as a litigant in person and her limited financial means. The evidence provided i.e. proof of universal credit receipt show that the claimant has minimal income. The claimant has no savings and the evidence from her sister and friend support her contention that she is financially struggling and has been since the COVID-19 pandemic. I have not been provided any evidence indicating that the claimant’s financial position will improve in the foreseeable future, in fact the lengthy period over which the claimant has been in receipt of Universal Credit, which includes an award for limited ability to work, points to the contrary.[56]Rule 82 permits the Tribunal to take into account a party’s ability to pay when deciding whether to make a costs order. In this case, I conclude that the claimant does not have the means to pay any meaningful costs award now and there is no evidence that she will be able to do so in the future. Making such an order would therefore serve no practical purpose and would not achieve a fair and just outcome. I reminded myself that costs orders are compensatory rather than punitive, and in circumstances where enforcement would be unrealistic, I conclude it would not be appropriate to exercise discretion in favour of the respondent.[57]Accordingly, while the threshold for unreasonable conduct is met, I decline to make a costs order due to the claimant’s limited financial ability to pay. Approved on: 9 January 2026