Dr N Nguru v Maximus UK Services Ltd and Others: 2302280/2022
EMPLOYMENT TRIBUNALS
Case No 2302280/2022
Between
Dr N NguruClaimantMaximus UK Services Ltd and OthersRespondent
Before
Employment Judge CawthrayIn person for claimantMs Polimac (instructed by Counsel) for respondentDate 17 January 2024
JUDGMENT
The Claimant’s application to amend her claim is permitted in part and refused in part.
REASONS
Conclusions
[1]The Claimant participated in ACAS Early Conciliation between 29 April 2022 until 9 June 2022. The Claimant submitted her claim on 8 July 2022 and there was no legal representative on record at that time.
Introduction
[2]A Case Management Preliminary Hearing took place before me on 7 June 2023. At that hearing I discussed the complaints with the parties and attempted to record the complaints pursued. I made directions for the Claimant to provide further information and explained the application to amend process.[3]On 25 July 2023 the Claimant made an application to amend her claim. The application document amounted to approximately 30 pages and was submitted with a four page cover letter.[4]A preliminary hearing took place on 8 September 2023, again before me. The hearing had been listed to consider the Claimant’s application to amend, any application for strike out/deposit order and any other case management as required. Unfortunately, the entire day was spent further seeking to understand and clarify the complaints, and it was not possible to deal with the application to amend.[5]Fortunately, the parties had complied with the directions made at the last preliminary hearing on 8 September 2023. The parties had produced an “Allegations Table” which amounted to 28 pages and listed each allegation that the Respondent states was not included within the ET1 claim form and required an application to amend. Both parties included comments within the table. The table also identified the allegations that the Respondent says should be made subject to a deposit order.[6]Within the table the Claimant stated that she was withdrawing the following complaints: breach of contract, failure to ensure health and safety and welfare (Health and Safety at Work Act 2010) and detriment under section 44(1)(c ) Employment Rights Act 1996. The Respondent’s comments within the table say: “C has withdrawn this claim and therefore R will not make any comments in relation to it”.[7]At the hearing today, the Claimant explained that going forward she is hoping to be supported by the Equality and Employment Centre and had recently been advised that she should not have withdrawn the section 44 complaint. The Claimant wishes to revoke the withdrawal of section 44[8]Ms. Polimac took instructions throughout the course of the hearing. The Respondent submits that the section 44 complaint has been withdrawn in writing and therefore cannot be revived. Ms. Polimac referenced rule 51 of the Employment Tribunal (Constitution & Rules of Procedure) Regulation 2012 and a case of Khan v Haywood & Middleton Primary Care Trust 2006 EWCA civ 1987. I have set out my decision in this respect below.[9]A separate withdrawal judgment will be issued in relation to the breach of contract and failure to ensure health and safety and welfare complaints, and it is noted the Claimant accepts the Tribunal does not have jurisdiction to hear those complaints.[10]In terms of reasonable adjustments, we again agreed to have a 15 minute break every 45 minutes. The Claimant’s sister has joined the last two video hearings in order to support the Claimant. However, she was not able to attend today. The Claimant requested that we revisit the use of a recording software, Otter. I explained the structure and stages of the hearing today. The Respondent objected to the recording. I noted that that the Claimant’s sister had not been involved in previous hearings, and that the Claimant had conversed and engaged very well. Accordingly, it was agreed that we would start the hearing without the recording tool and the Claimant could indicate if she wished to revisit this at any stage.[11]The Claimant had provided a witness statement and financial documents.[12]I discussed the approach to the hearing with the parties. I heard submissions from both parties on the application to amend. The Claimant swore on the bible and was cross examined by Ms. Polimac in relation to her means to pay a deposit order. Both parties also gave oral submissions in relation to the deposit order.[13]Unfortunately, it was not possible to make a decision within the time allocated due to the large number of allegations subject to an application to amend and application for a deposit order. I explained to the parties that I would send my reserved judgment and reasons as soon as practicable, but that this may take some time.[14]I asked the parties to consider and seek to agree some sensible case management directions, noting that the next preliminary hearing to determine disability is due to take place on 9 January 2024.
Facts
[15]It was not necessary to make significant findings of facts in order to consider the application to amend. Law[16]I considered rules 29 and 34 of the Employment Tribunals (Constitution & Rules of Procedure) Regulations 2013 (the ET Rules), the Presidential Guidance on Case Management and the principles established in the leading cases including Selkent Bus Company Ltd v Moore 1996 ICR 836, EAT, Chaudhry v Cerberus Security and Monitoring Services Ltd 2022 EAT 172, Vaughan v Modality Partnership UKEAT/0147/20/BA(V) the cases referenced by the parties and the representations of the parties. Neither party directed me to any case law.[18]Rule 51 of the Employment Tribunal (Constitution & Rules of Procedure) Regulations 2013 states: “WITHDRAWAL End of claim 51. Where a claimant informs the Tribunal, either in writing or in the course of a hearing, that a claim, or part of it, is withdrawn, the claim, or part, comes to an end, subject to any application that the respondent may make for a costs, preparation time or wasted costs order.”
Conclusions
[19]I considered the relevant factors, including the nature of the amendment, time limits, the timing and manner of the application, and in particular the balance of injustice and/or hardship in allowing or refusing the amendments. I have reminded myself that is not necessary to use Selkent factors as a prescriptive checklist, but have considered relevant factors.[20]I have kept in mind the parties submissions. General conclusions[21]For brevity, before setting out my decision on each application I have set out some general comments and conclusions.[22]It is noted that the Claimant’s position is that she had prepared further information to provide with her ET1, but did not think she could submit an attachment with the ET1 and understood there was a character restriction within the ET1.[23]It was only at the preliminary hearing on 7 June 2023, the first hearing in the claim, that the Claimant became aware of the process of clarifying and seeking to amend a claim, after I explained this to her.[24]Within the ET1 the Claimant provides a brief chronological account at box 8.2 and the Claimant did include some further information at box 15. Within box 8.2, the Claimant refers to discrimination, victimization and harassment.[25]I considered that the ET1 not “something to get the ball rolling”, but note that often unrepresented parties do not have a clear understanding of the different types of discrimination and the need for clear pleadings as they do not understand the Tribunal process. In reaching my conclusions in relation to each application I have kept in mind the need to consider the ET1 as a whole.[26]The Claimant has a number of mental health conditions and describes herself as being neurodiverse, although there is a hearing to determine if the conditions amounted to a disability in accordance with section 6 Equality Act 2020 at the material times listed for 9 January 2024.[27]The Claimant’s application to amend was not made until 25 July 2023, and on the face of it is out of time. I have not been able to consider any medical evidence in relation to the prospects of it being decided that it would be just and equitable to extend time but note that the Claimant’s health is likely to be relevant to any just and equitable extension. However, an application to amend can be granted on the basis that time limits should be determined at a final hearing.[28]The Claimant, who is not legally qualified, made the application after explanations about Tribunal process were provided to her by myself on 7 June 2023. It is not fault of the Claimant that the first preliminary hearing in this claim did not take place until almost a year after the claim was submitted. The time delay was due to pressures and backlogs in the Tribunal system.[29]Ms. Polimac submitted that most of the persons involved, either as witnesses or comparators, are no longer employed by the Respondent. Ms. Polimac explained that the Respondent has a policy where electronic files/emails are deleted 93 days after an employee leaves the Respondent. Although Ms. Polimac gave end dates for a number of individuals, I have not repeated that information here, save in respect of Nathan Huet, who is also the Second Respondent. I asked Ms. Polimac to confirm again that she was instructed to act on behalf of all three respondents, and she said this was the basis of her instructions. Nathan Huet left the Respondent in March 2022. The Claimant left the Respondent on 2 February 2022, and she submits the 93 days would mean data deletion on 6 May 2022 in relation to her accounts, and sometime in June 2022 for Nathan Huet.[30]Ms. Polimac also referred to a data transportation exercise in December 2022, but noted that data could be retained if a request was made.[31]It was not clear what data has and has not been deleted.[32]The Claimant contacted ACAS 29 in April 2022, however, she submitted a grievance in June 2021 and appeal in August 2021. The Respondent was on notice that the Claimant was upset at how she had been treated and I consider it would have been sensible and reasonable to take steps to preserve documentary evidence. Further, the ET1 was submitted on 8 July 2022, which was months before the December 2022 data migration.
Relevant law
[33]I have set out specific comments on each application below, but for brevity have not repeated these general conclusions, but they have been kept in mind and form part of my decision on each application.[34]I have set out each allegation in which an application to amend is made in full and have included the numbering for the allegations as set out in my Case Management Order dated 8 September 2023 in order for the allegations to be easily cross-referenced. Direct discrimination – decision on application to amend 1.1.1Mr Huet state the Claimant was “looking for special treatment” after a formal probation meeting on 16th June 2021, attended by another manager and her Medical Functional Assessor colleague, KC.[35]In considering the nature of the amendment I considered that the fact the ET1 does not detail the specific comment allegedly made by Nathan Huet. However, the ET1 does state: “I suffered increasingly worsening mental health caused by a sustained campaign of mental health discrimination, harassment and victimization by Nathan Huet and Joseph Lloyd”.[36]Although the precise details of the allegation are not set out in the ET1, I consider1.1.1 to provide better particulars of the general allegation set out1.1.2 Mr. Huet state that “we have already supported you as much as we can, the Occupational Health recommendations are just that, recommendations”, or words to that effect, on multiple occasions between 10th February 2021 to 02nd February 2021, including during two informal meetings held with the Claimant on 24th May 2021 and 12th October 2021.[37]My conclusion in this respect is as per 1.1.1 above, but also noting that the Claimant, in box 8.2 of the ET1 provided a brief chronology and there is reference to Occupational Health which states: “10/02/2021 - An Occupational Health assessment was conducted and advised...” This indicates that the treatment of her relating to the OH assessment was an issue.[38]Although the precise details of the allegation are not set out in the ET1, I consider 1.1.2 to provide better particulars of the general allegation set out 1.1.3Expect the Claimant to undertake three sets of training, examinations and approvals within a short timeframe, by December 2021. The Claimant says other colleagues, the group employed prior to April 2020, were only expected to undertake one set of training within 6 months.[39]The Respondent did not opposed this application, accordingly the allegation is permitted. For completeness, I do not consider this to be a new allegation, and simply clarification of what is already in the claim form. 1.1.6 During Stage 4 of the LCW Re-training, not offer the Claimant any formal support sessions from the Clinical Standards Leads compared with newly employed Medical Functional Assessor colleagues who were assigned weekly support sessions for around 6 weeks.[40]The ET1 does not contain any specific reference to the Stage 4 LCW Retraining or lack of particular support. Box 15 does, as set out in relation to 1.1.3 above, reference training and there is mention of the LCW training: “ ...the median time for a full-time practitioner at our centre to achieve the productive target after successful completion of LCW All Outcomes training, with no breaks in training, around 7 months.” However, there is no reference to not offering formal support sessions. I do not consider this allegation to be set out within the ET1.[41]Accordingly, I have considered the relevant factors below.[42]This is not a new head of complaint. The claim already contains allegations of direct disability discrimination.[43]The ET1 also contains general reference to training.[44]On face of it, as noted above the complaint is out of time as the Claimant[45]The Claimant made the application to amend after the first case[46]The Respondent has been on notice of the Claimant’s concerns about the training program during her employment. I have set out my conclusions above regarding the deletion of data. Ms. Polimac submits this will result in greater prejudice to the Respondent in seeking to defend allegations where there is potentially missing data, and further, that additional allegations will increase the length of a final hearing and put the[47]I have considered this against the hardship to the Claimant, and note this is just one element of a claim that will already continue to a final hearing.[48]I do not consider this allegation to be factually distant from other allegations relating to training that will be considered, and do not think it will add significantly to the final hearing.[49]Considering all of the above, and taking all into account, I conclude that 1.1.7 Not give the Claimant five weeks of support sessions with Clinical Standards Leads following her LCW training. Kate Collins was given 5 sessions.[50]In relation to this allegation, I have reached the same conclusions as per 1.1.6 above. 1.1.8 Expect the Claimant to train with 2 cases a day LCW NET and Stage 3 training. Newly employed Medical Functional Assessor colleagues were only expected to train with 1 case a day.[51]In relation to this allegation, I have reached the same conclusions as per 1.1.6 above, but note the ET1 does not contain specific reference to being required to train with two cases per day but box 15 does refer to Jenny Chapman being permitted to “only assess 1 client a day for around 5 months of her probation period”. Therefore, there is partial reference to the allegation in the ET1. 1.1.9 Require the Claimant to pass LCW training as part of her probation period. The original probation plan did not include this requirement. Kate Collins was not required to pass LCW as part of her probation.[52]The ET1, at box 15, does refer to completion of the LCW training and management not supporting a change in targets and probation objective.[53]Although the precise details of the allegation are not set out in the ET1, I consider 1.1.9 to provide better particulars of the general allegation set out 1.1.10 Mr. Huet deny the Claimant’s request to take her four days owed in lieu between her LCW NET training which ended on 28 May 2021 and the Stage 3 training. Kate Collins was allowed to take annual leave between finishing the LCW NET training and commencing the Stage 3 training.[54]The ET1 does not contain any specific reference to the request to take four days owed. However, the ET1 does state: “I suffered increasingly worsening mental health caused by a sustained campaign of mental health discrimination, harassment and victimization by Nathan Huet and Joseph Lloyd”.[55]Although the precise details are not set out, I consider 1.1.10 to provide better particulars of the general allegation set out in the claim form regarding Mr. Huet’s behaviour towards the Claimant.[56]Accordingly, I do not consider this to be a new allegation, and simply clarification of what is already in the claim form. 1.1.12 The Claimant was not allowed to have a reduction in performance targets during her phased return (starting on 12 April 2021) and was not permitted to take extra breaks during the working day. Jennifer Caswell and Jenny Chapman had their performance target reduced and JC was allowed to take extra breaks.[57]Box 15 of the ET1 states: “Jenny Chapman, a colleague with a learning difficulty had productivity and quality targets quickly adjusted to accommodate her needs while awaiting installation of dyslexia software and technological support.” Box 15 also states: “I had been informed that the managers could not support a change of work role during my phased return to work to allow for my mental rehabilitation.... During my employment, I had been informed that the management team could not support a change of targets and probation objective at various stages during my employment”.[58]Although put in a clearer form at 1.1.12, I consider the basis of the allegation is already contained within the ET1, and that it has been clarified. 1.1.14 The Claimant’s probation period was not automatically extended. Bethan Male and Kate Collins both had the date of their probation review meetings automatically extended by around 6 - 8 weeks to enable her to meet performance targets.[59]The ET1 does not contain any specific reference to the Claimant’s probation period not being automatically extended. However, box 15 does state; During my employment, I had been informed that the management team could not support a change of targets and probation objective at various stages during my employment”. There is no reference to Bethan Male or Kate Collins in the ET1.[60]Although put in a clearer form at 1.1.14, I consider the basis of the allegation is already contained within the ET1, and that it has been clarified. Permitted . Arising From Disability Discrimination – application to amend 2.2 Did the following things arise in consequence of the claimant’s disability: a. 2.2.1The Claimant’s sickness absence between February 2021 and April 2021?[61]There isn't a specific reference to the Claimant being absent on sick leave between February and April 2021. However, this appears to be clarification of the something arising in consequence of the Claimant’s disability. The Claimant relies on 3 allegations of unfavorable treatment, and this is not challenged by the Respondent. Further, I note that the Respondent would have been aware of the Claimant’s sick leave.[62]Accordingly, I have considered the relevant factors. Nature of the amendment[63]This is not a new head of complaint. The claim already contains allegations of discrimination arising from disability. This is clarification of the something arising from relied upon.[64]On face of it, as noted above the claim is out of time as the Claimant made her application to amend on 25 July 2023. However, can application can be granted subject to time limits being determined at a final hearing.[65]The Claimant made the application to amend after the first case[66]The Respondent would have been aware of the sick leave. Although the Respondent says most persons involved have now left the Respondent, and data has been deleted, and that this will cause the Respondent prejudice in trying to defend allegations. I have considered the above, and taking all into account, I conclude that greater prejudice would be caused to the Claimant if the application is refused.[67]The Respondent has been on notice of the Claimant’s concerns about the training program during her employment. I have set out my conclusions above regarding the deletion of data. Ms. Polimac submits this will result in greater prejudice to the Respondent in seeking to defend allegations where there is potentially missing data, and further, that additional allegations will increase the length of a final hearing and put the[68]I have considered this against the hardship to the Claimant, and note this is just one element of a claim that will already continue to a final hearing. The Respondent would have been aware of the Claimant’s sick leave, and has been clear that the priority is obtaining clarification of the pleaded claim.[69]Considering all of the above, and taking all into account, I conclude that Indirect disability discrimination 3.1 A “PCP” is a provision, criterion or practice. Did the respondent have the following PCP:... a. 3.1.2 A practice of requiring three sets of training for employees starting between April to September 2020.[70]Box 15 of the ET1 states: “I raised concerns that as a company and local management team, Maximis UK was failing to proactively anticipate and mediate the negative mental health effect that the prolonged period of assessment was having on the select group of employees who needed to undertake three sets of training, examination and approvals...”[71]Box 15 also states: “In fact, after raising concerns the local management team adjusted the training learning curve for new colleagues (Kate Colling and Claire B?) employed weeks after me”.[72]Accordingly, I consider there to be reference to the alleged PCP within the ET1 and I consider this allegation to be within the ET1, and that the Claimant has simply provided clarification. Reasonable adjustments – application to amend 4.2A “PCP” is a provision, criterion or practice. Did the respondent have the following PCPs: 4.2.2 A practice of following Occupational Health recommendations if it befits the business capacity[73]Boxes 8 and 15 of the ET1 do not make any identifiable reference to a practice as set out above.[74]The Claimant seeks to rely on two alleged PCPs, the first being “That all Medical Functional Assessors trainees complete their training on full time hours” is not challenged by the Respondent and will be considered at a[75]I have considered this element together with the application to add a step as set out below, because the two go together. 4.3 What steps could have been taken to avoid the disadvantage? The Claimant suggests: i. The Respondent could have followed all of the Occupational Health recommendations which were four months off work, ongoing one to one support, a phased return with a change in duties, not undertaking telephone assessments for two months and re-referred the claimant back to Occupational Health and given her 8 – 12 weeks to meet targets before termination. 76. Again, I have had careful regard to the ET1.[77]Box 8.2 states: properly investigate and implement protective measures to support…”• Re-referral after 3 months”[78]Box 15 contains the following: “I had been informed that the managers could not support a change of work role during my phased return to work to allow for my mental health rehabilitation.”[79]“During my employment, I had been informed that the management team could not support a change of targets and probation objective at various stages during my employment.”[80]The information within the ET1 is not precisely the same as 4.3.2 but box 8.2 does reference a specific Occupational Health report and most of the things the Claimant says could have been done to avoid the disadvantage alleged by not following the recommendations.[81]When read together with the opening text in box 8.2 and the text in box 15 I do consider. that although put in a clearer form at 4.2.2 and 4.3.2, the basis of the allegation is already contained within the ET1, and that it has been clarified.[82]Accordingly, no amendment is required. Harassment – application to amend[83]Within the Allegation Table the Claimant withdrew 13 allegations. For clarity, I cross referenced the numbering in the Case Management Order dated 8 September 2023, and the Claimant has withdrawn the following allegations: 5.1.1., 5.1.2, 5.1.3, 5.1.4, 5.1.7, 5.1.9, 5.1.1.10, 5.1.1.12, 5.1.1.14, 5.1.1.15, 5.1.1.16, 5.1.1.17, 5.1.1.20.[84]A separate dismissal upon withdrawal judgment has been issued in this respect.[85]The Respondent says the following allegations require an application to amend: 5.1.5, 5.1.6, 5.1.8, 5.1.11, 5.1.13, 5.1.18, 5.1.19, 5.1.21, 5.1.22, 5.1.23.[86]The Respondent also says the following allegations do not amount to harassment within the meaning of section 26 of the Equality Act 2010 and that if permitted, should be made subject to a deposit order: 5.1.5, 5.1.6, 5.1.8, 5.1.11, 5.1.13. This is dealt with further below. 5.1.5 Deliberately withholding access to Occupational Health services between 10th February 2021 and 12th January 2022.[87]The ET1 refers to Occupational Health recommendations from 10 February 2021 but contains no reference to the Respondent deliberately withholding access to Occupational Health.[88]Accordingly, I have considered the relevant factors below.[89]This is not a new head of complaint. The claim already contains one allegation of harassment related to disability.[90]On face of it, as noted above the claim is out of time as the Claimant made her application to amend on 25 July 2023. However, can application can be granted subject to time limits being determined at a final hearing.[91]The Claimant made the application to amend after the first case[92]The Respondent has been on notice of the Claimant’s concerns about the non- implementation of Occupational Health recommendations from the date of ET1. In relation to this particular allegation, I do not see how the deletion of any data would have a significant impact on the Respondent. However, it will require witnesses to comment on the reasons why the Claimant was not referred to Occupational Health between10th February 2021 and 12th January 2022. There were no specific comments made in this respect by the respondent, and I would anticipate the same management witnesses that will give evidence in relation to other matters would also deal with this allegation.[93]I have considered this against the hardship to the Claimant, and note this is just one element of a claim that will already continue to a final hearing, subject to a determination on disability.[94]I do not consider this allegation to be factually distant from other allegations relating to Occupational Health that will be considered, and do not think it will add significantly to the final hearing.[95]Considering all of the above, and taking all into account, I conclude that 5.1.6. Mr. Huet's statements implying the Claimant was "looking for special treatment" and minimising the Occupational Health recommendations on multiple occasions.[96]Again, as noted above, the ET1 contains the following:[97]Box 8.2 states: properly investigate and implement protective measures to support…”• Re-referral after 3 months”[98]Box 15 contains the following: “I had been informed that the managers could not support a change of work role during my phased return to work to allow for my mental health rehabilitation.” “During my employment, I had been informed that the management team could not support a change of targets and probation objective at various stages during my employment.”[99]The information within the ET1 is not precisely the same as the allegation at 5.1.6 but the ET1 does reference Mr Huet throughout.[100]However, the allegation remains unclear. The Claimant has not specified the statements allegedly made by Mr Huet and has not set out when they were allegedly made and further does not set out the detail of how he allegedly mimimised Occupational Health recommendations and when.[101]The Claimant has been given ample opportunity to seek to clarify the basis of her allegations. As this allegation remains unclear and unspecified, I have considered that the Claimant is seeking bring a new allegation of harassment that remains unspecified.[102]The Claimant made the application to amend after the first case[103]I consider the key factor in this allegation is the balance of injustice[104]If the Claimant was allowed to continue with this allegation the obtain clarity.[105]The Claimant has a number of allegations that will continue, and on balance, I conclude that the hardship to the Respondent would be greater.[106]This application to amend is refused. 5.1.8.Making unilateral changes to the original probation plan after the Claimant had already successfully achieved the targets and unilaterally extending the probation period without due cause.[107]On review of the ET1 I note in particular that box 15 references 30 days to achieve target, general reference to training and assessment but nothing specific regarding her probation period/plan save for the last paragraph at Box 15 which states: “During my employment, I had been informed that the management team could not support a change of targets and probation objective at various stages during my employment.”[108]However, in considering the ET1 as a whole, I do consider that although put in a clearer form at 5.1.8, the basis of the allegation is already contained within the ET1, and it has been clarified. Accordingly, no amendment is required. 5.1.11 The poor processing and repeated delayed communications of the outcomes of grievances. The omission of key details and the manipulation of information recorded in meeting notes and emails, namely the emails about the revised probation plan in May 2021 and the LCW targets in November 2021.[109]In relation to her grievances, the Claimant, at box 8.2 of her ET1 states:[110]The Claimant does not set out any concern about the processing of her grievance or any delay anywhere in the ET1. Had she been concerned about this at the time of submission, very few words would have been needed to include this. I do not consider the ET1 contains this allegation of harassment.[111]For completeness I also not here that the Claimant has made a similar allegation of victimisation below, although the allegations are not put in the same way.[112]The ET1 sets out no detail in this respect.[113]Accordingly, I have considered the relevant factors below.[114]This is not a new head of complaint. The claim already contains allegations of harassment related to disability.[115]On face of it, as noted above the claim is out of time as the[116]The Claimant made the application to amend after the first case[117]In regard to this allegation, I have noted that[118]The Claimant could have easily indicated her[119]I have considered this against the hardship to the Claimant, and[120]It appears that this allegation is factually[121]Considering all of the above, and taking all into account, in 5.1.13.The scheduling of medical revalidation appraisals and work exams on the same day.[122]The ET1 sets out no detail in this respect.[123]Accordingly, I have considered the relevant factors below.[124]This is not a new head of complaint. The claim already contains one allegation of harassment related to disability.[125]On face of it, as noted above the claim is out of time as the[126]The Claimant made the application to amend after the first case[127]In regard to this allegation, I have noted that there is no detail about this at all in the ET1. I have considered this an important factor in assessing the prejudice to the parties.[128]The Claimant could have easily indicated her[129]I have considered this against the hardship to the Claimant, and[130]It appears that this allegation is factually distant from the other allegations. The allegation that medical revalidation appraisals and work exams does not appear to feature as part, in the main or background, to any other allegation. Although it would not appear to add significantly to the time at the final hearing it is not clear what evidence may be needed to deal with the allegation.[131]Considering all of the above, and taking all into account, in 5.1.18.Acting in a manner which damaged the Claimant’s reputation and career prospects, such as Mr. Lloyd's avoidance of communication with the Claimant following her filing of grievances and holding meetings in an intimidating way.[132]This allegation remains, in parts, unclear. The Claimant has not specified who, how and when the Respondents acted in a manner that damaged her reputation and career prospects but the Claimant appears to have given an example of Mr. Lloyd avoiding communications and holding meetings in an intimidating way after she lodged her grievances. On plain reading, this element relating to Mr. Lloyd reads more as a complaint of victimisation.[133]As set out below, the Claimant seeks to pursue a complaint of victimisation, but the alleged acts of Mr. Lloyd do not appear as an allegation of victimisation.[134]The ET1 at box 8.2 makes the following reference to Jospeh Lloyd: “29/11/2020 - Joseph Lloyd (Performance Manager) denied a variation of contract to part-time hours during the training period, without good cause.”[135]However, this appears to be prior to the Claimant lodging a grievance, which does not align with the allegation as framed above.[136]Again, this part of the ET1 makes only general reference, but does not specify what was allegedly done and why. “02/02/2022, Joseph Lloyd knowingly put me in a vulnerable position during a performance meeting without trade union or colleague support, terminating my contract with immediate effect at 5.15pm on Wednesday 2nd February 2022.”[137]Although reference to Mr. Lloyd in ET1, the Claimant does not reference damage to her reputation or career.[138]As noted above, the Claimant has been given ample opportunity[139]The Claimant made the application to amend after the first case management preliminary hearing on 7 June 2023.[140]I consider the key factor in this allegation is the balance of injustice[141]If the Claimant was allowed to continue with this allegation the[142]The Claimant has a number of allegations that will continue, and on balance, I conclude that the hardship to the Respondent would be greater.[143]This application to amend is refused. 5.1.19.Hostile attitudes, bullying behaviour, and the creation of a sustained toxic and stressful atmosphere by Mr Huet and Mr Lloyd and other senior members of staff, including but not limited to, rolling their eyes when the Claimant spoke in meetings, making her lose confidence, whispering and sudden silence in the admin room when the Claimant entered, making her feel uncomfortable and targeted, Mr Huet's monitoring of the Claimant's movements in the break room and outside of her office, making her and her colleagues feel uncomfortable and Christmas gifts personally chosen by Mr Huet in December 2021, including a brown notebook with a offensive message “YOU DON’T HAVE TO BE CRAZY TO WORK HERE WE WILL TRAIN YOU”.[144]This allegation remains, in parts, unclear. The Claimant has mentioned general behaviour by Mr Huet and Mr Lloyd but also “other senior members of staff”.[145]She has gone on the say “including but not limited to…” and provided some examples but does not specify with the necessary clarity who did what and when.[146]The part of the allegation that is specific and understandable is: “Christmas gifts personally chosen by Mr Huet in December 2021, including a brown notebook with a offensive message “YOU DON’T HAVE TO BE CRAZY TO WORK HERE WE WILL TRAIN YOU”.”[147]However, there is no reference at all in the ET1 to this. For completeness, I note the Claimant also seeks to pursue reference to the note book as an allegation of victimisation.[148]The ET1 at box 8.2 makes the following references to Mr. Huet.[149]Again, this part of the ET1 makes only general reference, but does not specify what was allegedly done and why.[150]However, the allegation generally remains unclear. The Claimant has not specified the conduct relied on, save for the Christmas gift – which is not mentioned anywhere in the ET1.[151]As noted above, the Claimant has been given ample opportunity[152]The Claimant made the application to amend after the first case[153]I consider the key factor in this allegation is the balance of injustice[154]If the Claimant was allowed to continue with this allegation the[155]The Claimant has a number of allegations that will continue, and on balance, I conclude that the hardship to the Respondent would be greater to permit the entire allegation as drafted to continue.[156]This application to amend is refused, save for the following is permitted to continue as an allegation of harassment: “Christmas gifts personally chosen by Mr Huet in December 2021, including a brown notebook with a offensive message “YOU DON’T HAVE TO BE CRAZY TO WORK HERE WE WILL TRAIN YOU”.”[157]In reaching this decision I took into account the factor as noted in the applications granted above. Namely, noting it is not a new head of complaint. The claim already contains allegations of harassment related to disability and noting the time limits mean on the face of it is out of time and the application was made after my explanation to the Claimant on 7 June[158]However, in particular, in considering the balance of injustice and Huet as set out above. The evidence of Mr. Huet will be required to deal with other allegations, and indeed he is a respondent to the claim. This precise allegation should not need any significant further hearing time or additional line of enquiry. On balance, in relation to the particular notebook allegation, I consider the prejudice would be greater to the Claimant was this not permitted to continue. Refused in part and permitted in part, subject to determination of time limits at final hearing. 5.1.21.Unilaterally scheduling the Claimant for face-to-face training during a period of stricter social distancing measures and COVID-19 risks in December 2021, and failing to inform the Claimant of a COVID positive case and site closure in August 2021, putting her at undue risk due to her increased susceptibility to COVID-19.[159]The Claimant has sought to pursue a similar allegation as part of a complaint of victimisation at allegation 6.2.4, below – albeit this allegation relates only to the failure to inform the Claimant of a Covid case and site closure.[160]There is no detail of the allegation within the ET1. The Claimant has not specified the person/s involved.[161]There is no detail of this specific alleged detriment within the ET1.[162]Accordingly, I have considered the relevant factors below.[163]This is not a new head of complaint. The claim already contains one allegation of victimization, and this overlaps with an allegation of harassment regarding the same factual matters.[164]On fact of it, as noted above the claim is out of time as the Claimant[165]The Claimant made the application to amend after the first case[166]However, in particular, in considering the balance of injustice and included in the ET1. It is not clear who was potentially involved, but the Claimant gives a specific date that will enable the Respondents to make enquiries. The Respondents did not make any submissions specific to any particular hardship caused by this allegation continuing.[167]This precise allegation appears to be quite contained and should not need any significant further hearing time or additional line of enquiry, indeed it may overlap with Mr. Huet addressing his instructions to the Claimant regarding clients to be seen in August 2021.[168]As above, the Respondent has been on notice of the Claimant’s[169]I have considered this against the hardship to the Claimant, and[170]Considering all of the above, and taking all into account, I conclude 5.1.22.Withholding the letter confirmation of LCW training approval as a tactic to stall the Claimant's productivity, as Mr Huet stated that all of her reports were to remain 100% audited until she received the letter.[171]The ET1 contains no reference to this specific allegation, namely withholding the LCW training letter and Mr Huet’s comments regarding reports being audited.[172]As noted above, the ET1 at box 8.2 makes the following references to Mr. Huet.[173]“The basis of my employment tribunal claim is that Maximus UK failed to properly investigate and implement protective measures to support my well-being against the sustained discrimination, victimisation and harassment maliciously committed by Nathan Huet (Lewes Centre Manager) and Joseph Lloyd (Performance Manager)...” 174. .”[175]“12.04.2021 - 02.02.22 - I suffered increasingly worsening mental health caused by a sustained campaign of mental health discrimination, harassment and victimisation by Nathan Huet and Joseph Lloyd.”[176]Accordingly, I have considered the relevant factors below.[177]Nature of amendment[178]This is not a new head of complaint. The claim already contains one allegation of harassment related to disability.[179]Time limits[180]On fact of it, as noted above the claim is out of time as the Claimant[181]Timing and manner of application[182]The Claimant made the application to amend after the first case[183]Balance of injustice and hardship[184]However, in particular, in considering the balance of injustice and hardship, I have considered that althoughthis specific detail is not included in the ET1, the Claimant does make various reference to Mr. Huet as set out above. The evidence of Mr. Huet will be required to deal with other allegation should not need any significant further hearing time or additional line of enquiry. On balance, I consider the prejudice would be greater to the Claimant was this not permitted to continue.[185]I have also note that the withholding of the letter is also alleged to be detriment under the victimisation complaint, which is addressed below. 5.1.23.The Claimant was singled out with specific clients' files which were lengthier and more complex than other colleagues.[186]This allegation remains, in part unclear. The Claimant has not specified who allocated her particular files and when such files were allegedly allocated.[187]Further, there is no reference to this matter at all in the ET1.[188]As noted above, the Claimant has been given ample opportunity[189]The Claimant made the application to amend after the first case[190]I consider the key factor in this allegation is the balance of injustice[191]If the Claimant was allowed to continue with this allegation the[192]The Claimant has a number of allegations that will continue, and on balance, I conclude that the hardship to the Respondent would be greater, it would not understand the basis of the allegation, the persons involved and the evidence needed to defend the claim.[193]This application to amend is refused. Victimisation – application to amend[194]The Respondent maintained that all the allegations of victimisation detriment are subject to an application to amend save for 6.2.11. Therefore, a complaint of victimisation will be heard at a final hearing. 6.2.1 Fix the following meetings at short notice: informal meeting with Nathan Huet (October 2021), training (December 2021).[195]There is no detail of this alleged detriment within the ET1.[196]As noted above, the ET1 at box 8.2 makes the following general references to Mr. Huet.[197]Accordingly, I have considered the relevant factors below.[198]This is not a new head of complaint. The claim already contains one allegation of victimisation.[199]On fact of it, as noted above the claim is out of time as the Claimant[200]The Claimant made the application to amend after the first case[201]However, in particular, in considering the balance of injustice and Huet as set out above. The evidence of Mr. Huet will be required to deal with other allegations, and indeed he is a respondent to the claim. This precise allegation should not need any significant further hearing time or additional line of enquiry, Mr. Huet should be able to address a meeting held on short notice in October 2021 and training in December 2021.[202]The Respondent has been on notice of the Claimant’s concerns generally about Mr. Huet’s treatment of her. There were no specific submissions as to whether the Respondents may required particular documents to deal with this allegation and I have set out my conclusions above regarding the deletion of data. Ms. Polimac submitted generally that permitting applications to amend would result in greater prejudice to the Respondents in seeking to defend allegations where there is potentially missing data, and further, that additional allegations will increase the length of a final hearing and put the Respondent to additional costs.[203]I have considered this against the hardship to the Claimant, and[204]I do not think it will add significantly to the final hearing.[205]Considering all of the above, and taking all into account, I conclude 6.2.2. Nathan Huet withhold the letter approving passing LCW training in Autumn 2021,[206]It is noted that withholding the LCW training letter is also alleged to be an act of harassment, and my conclusions in this respect are set out in relation to 5.1.22 above.[207]I have not repeated my conclusions here, as the same reasoning applies to this application to amend. 6.2.3 Nathan Huet on three occasions in Autumn 2021 interfered in working day by requestion the claimant see specific clients.[208]There is no detail of this specific alleged detriment within the ET1.[209]As noted above, the ET1 at box 8.2 makes the following general references to Mr. Huet.[210]Accordingly, I have considered the relevant factors below.[211]This is not a new head of complaint. The claim already contains one allegation of victimisation.[212]On face of it, as noted above the claim is out of time as the[213]The Claimant made the application to amend after the first case[214]However, in particular, in considering the balance of injustice and Huet as set out above.[215]Further, the Claimant pursues a direct discrimination allegation at 1.1.4 that states: “Subject the Claimant to rapidly changing work processes and performance targets throughout her employment. In particular change the number of clients she was required to see in a day.” The Respondents did not submit that this required an application to amend, and therefore will continue to any final hearing. There appears to be some potential overlap in relation to the changes in number of clients required to be seen in a day.[216]The evidence of Mr. Huet will be required to deal with other allegation should not need any significant further hearing time or additional line of enquiry, Mr. Huet should be able to address his instructions to the Claimant regarding clients to be seen in August 2021.[217]As above, the Respondent has been on notice of the Claimant’s[218]I have considered this against the hardship to the Claimant, and[219]I do not think it will add significantly to the final hearing.[220]Considering all of the above, and taking all into account, I conclude 6.2.4 On 16 August 2021 the respondent failed to inform the claimant of a covid case and site closure.[221]The Claimant has sought to pursue a similar allegation as part of a complaint of harassment at allegation 5.1.21 above.[222]There is no detail of the allegation within the ET1. The Claimant has not specified the person/s involved.[223]There is no detail of this specific alleged detriment within the ET1.[224]Accordingly, I have considered the relevant factors below.[225]This is not a new head of complaint. The claim already contains one allegation of victimization, and this overlaps with an allegation of harassment regarding the same factual matters.[226]On the face of it, as noted above the claim is out of time as the[227]The Claimant made the application to amend after the first case[228]However, in particular, in considering the balance of injustice and included in the ET1. It is not clear who was potentially involved, but the Claimant gives a specific date that will enable the Respondents to make enquiries. The Respondents did not make any submissions specific to any particular hardship caused by this allegation continuing.[229]This precise allegation appears to be quite contained and should not need any significant further hearing time or additional line of enquiry, indeed it may overlap with Mr. Huet addressing his instructions to the Claimant regarding clients to be seen in August 2021[230]As above, the Respondent has been on notice of the Claimant’s specific submissions as to whether the Respondents may require[231]I have considered this against the hardship to the Claimant, and[232]Considering all of the above, and taking all into account, I conclude 6.2.5 The admin team, under the instruction of Nathan Huett, give the claimant specific lengthy and complex client files in Autumn and Winter 2021.[233]As will be noted from harassment allegation 5.1.23 above, under that allegation the Claimant said: “5.1.23.The Claimant was singled out with specific clients' files which were lengthier and more complex than other colleagues.”[234]As per my conclusions above, this allegation remains unclear in part, but does differ from 5.1.23 as the Claimant references the admin team under instruction of Natham Huett, she gives the time frame but she does not identify the files. There are therefore important differences in how the two allegations are framed and put.[235]There is no reference to this matter in the ET1, but there is reference generally to Nathan Huet in box 8.2.[236]The Claimant made the application to amend after the first case[237]I consider the key factor in this allegation is the balance of injustice[238]The evidence of Mr. Huet will be required to deal with other allegation should not need any significant further hearing time and, Mr. Huet should be able to address his instructions to the admin team regarding client files in Autumn and Winter 2021.[239]As above, the Respondent has been on notice of the Claimant’s[240]I have considered this against the hardship to the Claimant, and[241]I do not think it will add significantly to the final hearing.[242]Considering all of the above, and taking all into account, I conclude 6.2.6 Nathan Huet refuse the claimant’s request to be referred back to OH in October and December 2021.[243]The ET1 contains the following text regarding Occupational Health:• Re-referral after 3 months”.[244]It therefore makes reference to a recommendation for referral to OH but do not set out specifically the allegation that Nathan Huet refused requests from the Claimant in October and December 2021. However, as noted above, there is reference generally to Nathan Huet in box 8.2.[245]The Claimant made the application to amend after the first case[246]I consider the key factor in this allegation is the balance of injustice[247]The evidence of Mr. Huet will be required to deal with other allegation should not need any significant further hearing time and Mr. Huet should be able to address whether or no he refused requests from the Claimant to be re-referred to Occupational Health.[248]As above, the Respondent has been on notice of the Claimant’s specific submissions as to whether the Respondents may require[249]I have considered this against the hardship to the Claimant, and[250]I do not think it will add significantly to the final hearing.[251]Considering all of the above, and taking all into account, I conclude 6.2.7 In December 2021 did Nathan Huet give the Claimant a notebook with a cover saying you don’t have to be crazy to work here.[252]The Claimant has sought to bring an allegation of harassment regarding the notebook as referenced under 5.1.19 above. However, there is no reference at all in the ET1 to this. For completeness, I note the Claimant also seeks to pursue reference to the note book as an allegation of victimisation.[253]I have not repeated my findings in relation to 5.1.19 above, but in relation to the notebook they apply. Accordingly, for the same reasons, I conclude that this allegation should be permitted. Permitted, subject to determination of time limits at final hearing. 6.2.8 Did not properly consider the contents of the claimant’s grievance and grievance appeal, did not make any recommendations and unreasonable delayed in the management of the grievances.[254]The Claimant has made a similar allegation of harassment, at 5.1.11 above, although the allegations are not put in the same way. As set out in relation to 5.1.11 above, the ET1 states:[255]The Claimant does not set out any concern about the consideration of her grievance, the delay or lack of recommendations anywhere in the ET1. Had she been concerned about this at the time of submission, very few words would have been needed to include this. I do not consider the ET1 contains this allegation of victimization.[256]The ET1 sets out no detail in this respect.[257]Accordingly, I have considered the relevant factors below.[258]This is not a new head of complaint. The claim already contains allegations of victimisation.[259]On the face of it, as noted above the claim is out of time as the[260]The Claimant made the application to amend after the first case[261]In regard to this allegation, I have noted that[262]The Claimant could have easily indicated her[263]I have considered this against the hardship to the Claimant, and[264]It appears that this allegation is factually[265]Considering all of the above, and taking all into account, in 6.2.9 Withholding mentorship support from Clinical Standards Leads[266]The Claimant has made similar allegations regarding lack of support in relation to clinical lead support as complaints of direct discrimination at 1.1.6 and 1.1.7 above, and the conclusions I reached in this respect are relevant for this application.[267]The ET1 does not contain any specific reference to withholding mentorship support from Clinical Standards Leads. I do not consider this allegation to be set out within the ET1.[268]Accordingly, I have considered the relevant factors below.[269]This is not a new head of complaint. The claim already contains allegations of victimisation. The claim will consider support and training provided by Clinical Standard Leads as part of the direct discrimination[270]On the face of it, as noted above the claim is out of time as the[271]The Claimant made the application to amend after the first case[272]The Respondent has been on notice of the Claimant’s concerns about the training program during her employment. I have set out my conclusions above regarding the deletion of data. Ms. Polimac submits this will result in greater prejudice to the Respondent in seeking to defend allegations where there is potentially missing data, and further, that additional allegations will increase the length of a final hearing and put the[273]I have considered this against the hardship to the Claimant, and[274]I do not consider this allegation to be factually distant from other allegations relating to training that will be considered, and do not think it will add significantly to the final hearing.[275]Considering all of the above, and taking all into account, I conclude 6.2.10 The grievance investigator and the grievance appeal investigator recommended unrealistic targets within the extended probation timeframe.[276]The Claimant has sought to pursue allegations regarding her grievance at allegations 5.1.11 and 6.2.8, and the conclusions in relation to those allegations are relevant here.[277]In relation to her grievances, the Claimant, at box 8.2 of her ET1 states:[278]The Claimant does not set out any concern about the recommendation of unrealistic targets within the ET1. Had she been concerned about this at the time of submission, very few words would have been needed to include this. I do not consider the ET1 contains this allegation of victimisation.[279]The ET1 sets out no detail in this respect.[280]Accordingly, I have considered the relevant factors below.[281]This is not a new head of complaint. The claim already contains allegations of victimisation.[282]On the face of it, as noted above the claim is out of time as the[283]The Claimant made the application to amend after the first case[284]In regard to this allegation, I have noted that[285]The Claimant could have easily indicated her[286]I have considered this against the hardship to the Claimant, and[287]It appears that this allegation is factually[288]Considering all of the above, and taking all into account, in[289]In summary, and for ease of review, I have included the table below to summarise my decisions as there were a large number of applications to amend. The paragraph numbers accord with the paragraph numbers within the draft List of Issues in the Case Management Order dated 8 September 2023. 290. Within ET1 – no Permitted, save for Refused amendment required determination re time1.1.1 1.1.6 5.1.61.1.2 1.1.7 5.1.111.1.3 1.1.8 5.1.13 1.1.9 2.2.1 5.1.18 1.1.10 5.1.5 5.1.19 1.1.12 5.1.19 in part 5.1.23 1.1.14 5.1.21 6.2.8 3.1.2 5.1.22 6.2.10 4.2.26.2.1 4.3.26.2.2 5.1.86.2.36.2.46.2.56.2.66.2.7 6.2.9 291. table Deposit order[292]The Respondent, within the Allegations Table, highlighted in yellow the allegations of harassment that it submits should be subject to a deposit order. A number of those allegations were withdrawn by the Claimant.[293]This left allegations 5.1.5, 5.1.6, 5.1.8, 5.5.11 and 5.1.13. However, the first decision I had to make was whether or not those allegations, which were all subject to an application to amend, should be permitted to continue. I refused the Claimant’s application to amend to add allegations 5.1.6, 5.1.8, 5.5.11 and 5.1.13, and therefore it was not necessary for me to consider whether a deposit order was appropriate in relation to those allegations.[294]In relation to 5.1.5, that allegation was permitted to continue. The allegation at 5.1.5 is: Deliberately withholding access to Occupational Health services between 10th February 2021 and 12th January 2022.[295]Rule 39 of the ET Rules states: “Deposit orders 39.—(1) Where at a preliminary hearing (under rule 53) the Tribunal considers that any specific allegation or argument in a claim or response has little reasonable prospect of success, it may make an order requiring a party (“the paying party”) to pay a deposit not exceeding £1,000 as a condition of continuing to advance that allegation or argument. (2) The Tribunal shall make reasonable enquiries into the paying party's ability to pay the deposit and have regard to any such information when deciding the amount of the deposit. (3) The Tribunal's reasons for making the deposit order shall be provided with the order and the paying party must be notified about the potential consequences of the order. (4) If the paying party fails to pay the deposit by the date specified the specific allegation or argument to which the deposit order relates shall be struck out. Where a response is struck out, the consequences shall be as if no response had been presented, as set out in rule 21. (5) If the Tribunal at any stage following the making of a deposit order decides the specific allegation or argument against the paying party for substantially the reasons given in the deposit order— (a)the paying party shall be treated as having acted unreasonably in pursuing that specific allegation or argument for the purpose of rule 76, unless the contrary is shown; and (b)the deposit shall be paid to the other party (or, if there is more than one, to such other party or parties as the Tribunal orders), otherwise the deposit shall be refunded. (6) If a deposit has been paid to a party under paragraph (5)(b) and a costs or preparation time order has been made against the paying party in favour of the party who received the deposit, the amount of the deposit shall count towards the settlement of that order.”[296]The Respondent submits this does not fall within the definition of harassment, but has not made any further or particular submissions.[297]Section 26 of the Equality Act 2010 sets out the definition of harassment: 26 Harassment (1)A person(a) (A) harasses another(b) (B) if— (a)A engages in unwanted conduct related to a relevant protected characteristic, and (b)the conduct has the purpose or effect of— (i)violating B's dignity, or (ii)creating an intimidating, hostile, degrading, humiliating or offensive environment for B. (2)A also harasses B if— (a)A engages in unwanted conduct of a sexual nature, and (b)the conduct has the purpose or effect referred to in subsection (1)(b). (3)A also harasses B if— (a)A or another person engages in unwanted conduct of a sexual nature or that is related to gender reassignment or sex, (b)the conduct has the purpose or effect referred to in subsection (1)(b), and (c)because of B's rejection of or submission to the conduct, A treats B less favourably than A would treat B if B had not rejected or submitted to the conduct. (4)In deciding whether conduct has the effect referred to in subsection (1)(b), each of the following must be taken into account— (a)the perception of B; (b)the other circumstances of the case; (c)whether it is reasonable for the conduct to have that effect. (5)The relevant protected characteristics are— age; disability; gender reassignment; race; religion or belief; sex; sexual orientation.[298]I have considered the Equality and Human Rights Commission Code of Practice, and harassment is dealt with at chapter 7. It states, in relation to unwanted conduct: “Unwanted conduct covers a wide range of behaviour, including spoken or written words or abuse, imagery, graffiti, physical gestures, facial expressions, mimicry, jokes, pranks, acts affecting a person’s surroundings or other physical behaviour. The word ‘unwanted’ means essentially the same as ‘unwelcome’ or ‘uninvited’. ‘Unwanted’ does not mean that express objection must be made to the conduct before it is deemed to be unwanted. A serious one- off incident can also amount to harassment.”[299]As neither party have made any specific submissions I considered generally whether not doing something could amount to harassment. In this case, the allegation is that there has been a deliberate withholding access, and I consider that the deliberate withholding of access to a service could potentially be something that amounts to unwanted conduct. I have made no decision on this, other than to set out I can see that such construction may be possible.[300]In considering more widely whether the allegation has little prospect of success, again, no specific submissions were offered. As set in Rule 39, a deposit may be ordered where a “Tribunal considers that any specific allegation or argument in a claim or response has little reasonable prospect of success.”[301]The test for the ordering of a deposit is therefore that the party has little reasonable prospect success. It was said by the Employment Appeal Tribunal in Hemdan v Ishmail [2017] IRLR 228 that the purpose of a deposit order is “To identify at an early stage claims with little prospect of success and to discourage the pursuit of those claims by requiring a sum to be paid and by creating a risk of costs, ultimately, if the claim fails” and it is “ emphatically not...to make it difficult to access justice or effect a strike out through the back door.” A deposit order should be capable of being complied with and a party should not be ordered to pay a sum which he or she is unlikely to be able to raise.[302]As for the approach the Tribunal should take, in Wright v Nipponkoa Insurance [2014] UKEAT/0113/14 and Van Rensburg v Royal Borough of Kingston-Upon-Thames and others[2007] UKEAT/0095/07 it was said, a Tribunal is not restricted to a consideration of purely legal issues; it is entitled to have regard to the likelihood of the party being able to establish the facts essential to their case and, in doing so, to reach a provisional view as to the credibility of the assertions being put forward. That said there is a balance to be struck as to how far such an analysis can go. It was also made clear in Hemdan that a mini-trial of the facts is to be avoided. If there is a core factual conflict it should properly be resolved at a full merits hearing where evidence is heard and tested. When deciding whether to make a deposit order, a broad assessment of the merits is all that is required.[303]In this case, I have minimal information available, I have not been directed to any documentation, or absence thereof. It is not clear what evidence may or may not be available. The Claimant may be able to provide specific evidence of how access to Occupational Health services was withheld, by who and when, or she may not. I have also kept in mind that the Second Respondent was the Claimant’s manager throughout the Claimant’s employment. There is likely to be a factual dispute about this matter.[304]At this stage, I am not satisfied that the complaint has little reasonable prospect of success and I do not consider that it is appropriate to make a deposit order. This should not be read in any way as a view on the prospects of the allegation. Section 44 Employment Rights Act 1996[305]Following the preliminary hearing on 8 September 2023 the Claimant completed the “Allegations Table” and sent the same to the Respondent on or around 6 October 2023. The Respondent added comments to the table, as ordered, and the Allegations Table was sent to the Tribunal via email on 20 October 2023.[306]In relation to the section 44 complaint, the Claimant has stated, next to each allegation: “The Claimant agrees that the Tribunal has no jurisdiction to hear this complaint and will pursue the complaint through the Civil Courts.”[307]As set out above, the Respondent deemed this to be a withdrawal, and added no comments to the Allegations Table in relation to this[308]The Case Management Order set out the 7 alleged detriments under the section 44 complaint purportedly being pursued, these were recorded under a general heading of “Failure to ensure health and safety and welfare”. At the preliminary hearing on 8 September 2023, the Claimant’s application to amend document was discussed, and my Case Management Order records: “[The Claimant’s health and safety claim is not entirely clear, and it would be sensible for the Claimant to consider this allegation. The Respondent says that this is new and subject to an application to amend, but further, that the Tribunal has no jurisdiction to hear such complaints under section 2 of the Health and Safety at Work Act 2010. The Claimant says the health and safety breaches are as set out at (i) to viii) pages 12 – 14 of her Application to Amend.]”[309]However, below this text the order set out the alleged section 44 detriments, and there was no specific order in this respect.[310]At the start of the hearing today, when discussing the issues, the Claimant said she no longer wished to withdraw the section 44 complaint and asked that her written withdrawal be revoked. The Claimant said she had obtained legal advice and was told that she should not have withdrawn the section 44 complaint, and that the Employment Tribunal was the right place for such a complaint.[311]The Claimant said she has been having advice from the Equality and Employment Law Centre.[312]The Respondent’s position is that the section 44 complaint has been withdrawn, and that brings an end to that complaint. It relies on the wording of Rule 51 of the Employment Tribunals (Constitution & Rules of Procedure) Regulations 2013, which states, under the heading “Withdrawal”: “WITHDRAWAL End of claim51. Where a claimant informs the Tribunal, either in writing or in the course of a hearing, that a claim, or part of it, is withdrawn, the claim, or part, comes to an end, subject to any application that the respondent may make for a costs, preparation time or wasted costs order”. Rule 52 states: “Dismissal following withdrawal52. Where a claim, or part of it, has been withdrawn under rule 51, the Tribunal shall issue a judgment dismissing it (which means that the claimant may not commence a further claim against the respondent raising the same, or substantially the same, complaint) unless— (a)the claimant has expressed at the time of withdrawal a wish to reserve the right to bring such a further claim and the Tribunal is satisfied that there would be legitimate reason for doing so; or (b)the Tribunal believes that to issue such a judgment would not be in the interests of justice”. 313. .The Respondent submits that the section 44 complaint has been withdrawn in writing, and therefore that part of the claim has ended. The also directed me to the case of Khan v Haywood & Middleton Primary Care Trust 2006 EWCA Civ 1087. I note that this case was decided under the earlier version of the Employment Tribunal rules, the Employment Tribunals (Constitution & Rules of Procedure) Regulations 2004, and the applicable rule was 25.[314]The 2013 rules contain no express power for seeking permission to continue with a withdrawn claim. I have also kept in mind the Overriding Objective in Rule 2 and Rule 29. On plain reading of the rules, a withdrawal in writing by claimant brings a claim or part of it to an end.[315]I have considered whether the Claimant’s comments in the Allegations Table amount to a clear withdrawal. I do not consider they do. The wording used by the Claimant indicates that she wishes to pursue a section 44 complaint but that she believes the correct place to do this in the Civil Courts. I do not consider the wording used by the Claimant, a litigant in person, to amount to a clear withdrawal of the section 44 complaint in all the circumstances. Accordingly, that complaint is not treated as withdrawn, and requires further case management. CERTIFICATE OF CORRECTION Employment Tribunals Rules of Procedure 2013 Under Rule 69, the CORRECTED JUDGMENT The judgment of the Tribunal is as follows:[1]At the relevant times the claimant was a disabled person as defined by section 6 Equality Act 2010 because of ADHD, anxiety disorder and severe depression.[2]The claimant brings claims of disability discrimination against the respondent which have been the subject of previous case management hearings, the first of which was on 7 June 2023. At this hearing, Employment Judge Cawthray ordered that a preliminary hearing should take place to determine whether the claimant was disabled at the material time.[3]The respondent defends the claims and disputes that the claimant was disabled at that time.[4]The claimant represented herself and gave sworn evidence. The respondent was represented by Miss Polimac, counsel. I considered the documents from an agreed 185-page bundle of documents.[5]At the outset of the hearing, it was established that the claimant would require frequent rest breaks, every 45 minutes or so to accommodate the effects of her health conditions. This timetable was adhered to and in fact, further and more lengthy breaks were taken on request by the claimant. Issues for the Tribunal to decide[6]After preliminary discussion with the parties, it was established that the material period of the claimant's claim was the entire duration of her employment with the respondent from 14 September 2020 to 2 February 2022.[7]The claimant's alleged disability as set out in the case management order of Employment Judge Cawthray and agreed by the claimant today was:a. ADHDb. Autism spectrum profilec. Severe depressiond. Anxiety disordere. PTSD.[8]None of the elements of the definition of disability were conceded by the respondent. Therefore, the Tribunal has to determine the following issues:a. Did the claimant have a mental impairment?b. If so, did that impairment have an adverse effect on her ability to carry out normal day to day activities?c. If so, was that effect substantial (as in more than minor or trivial)?d. If so, was the effect long term? Relevant Findings of fact[9]The relevant facts are as follows. Where I have had to resolve any conflict of evidence, I indicate how I have done so at the material point. References to page numbers are to the agreed Bundle of Documents.[10]Prior to commencement of her employment with the respondent, the claimant was employed as an NHS doctor. This required her to work on hospital wards during the Covid pandemic which she found extremely stressful. She said that this experience caused her to suffer from PTSD.[11]On 14 August 2020, she was admitted to hospital. Her GP records confirm the reason for this admission as being "anaemia" (page 173) but in subsequent occupational health reports during her employment with the respondent, she explained that she was exhausted (page 62) and was burnt out (page 52).[12]The claimant's evidence in cross-examination was that she was in survival mode during this time, was extremely anxious and was working "crazy hours" because of the pandemic. When questioned by me, she said that her symptoms of anxiety were present from that period of her collapse in 2020 when she kept going until she could no longer physically carry on, and did not remit after that point. She commenced employment with the respondent in the hope of finding a less stressful working environment.[13]On 30 October 2020, she was off sick from work with reported "stress" and again on 2 November 2020 with "anxiety" (page 185).[14]On 30 October 2020, the claimant emailed her manager to explain she had been suffering from poor sleep, focus and mood. She stated: "… I feel stressed all the time" (page 144).[15]On 14 January 2021, the claimant attended a meeting with Katie Reynolds and Angie Clarke from the respondent (job titles unknown). Notes from that meeting which are page 60 record that the claimant advised of her "significant personal difficulties and health concerns, particularly around [your] mental health and ability to sleep, and concentrate fully".[16]The claimant was then off sick from 15 February 2021 to 9 April 2021 (page 185). Her GP fit note for those dates confirm her reason for absence being "anxiety – burnout" (page 66/67).[17]An occupational health report dated 10 February 2021 describes her difficulties with sleeping, overthinking, fatigue, panic attacks and tearfulness. She was advised to take some time off work, to access GP assistance and trial medication (page 63). The report records at page 60, the view of the occupational health clinician that the claimant would not be deemed to be disabled at that stage as her recovery was anticipated with support and adjustments.[18]The claimant was diagnosed by her GP with anxiety disorder in March 2021 (page 174). She went back to work on 12 April 2021 but by 24 August 2021 revisited her GP with stress, panic attacks and anxiety. At that point her trichotillomania (pulling out eyelashes and hair) is noted. She was prescribed propranolol.[19]On 21 October 2021 she was diagnosed with depression by her GP (page 167) and was prescribed sertraline. Her GP recommended that she contact the "NHS practitioner programme" which was a specialist, confidential mental health support programme for NHS practitioners.[20]The claimant followed that recommendation and had a video consultation with a specialist some time before 9 December 2021, when she saw her GP again and her sertraline prescription was increased (page 166).[21]The NHS practitioner programme enabled the claimant to access CBT from a specialist therapist. A detailed letter from that therapist appears at page 184 which sets out the support provided to the claimant by him from 24 December 2021 to 4 May 2022. That letter records the stress and anxiety felt by the claimant during the pandemic and thereafter describes her symptoms of anxiety, low mood, compulsive behaviour, problems with sleep, focus and concentration. It also discusses the possibility that the claimant may have ADHD, something which is also recorded in her GP records on 27 April 2022 (page 164).[22]The claimant found the CBT sessions to be helpful and an improvement in her condition is noted in July and August 2022 but there is no reduction in her medication (page 160 and 158).[23]On 18 November 2022, the claimant was diagnosed with ADHD. A subsequent report dated 28 December 2022, written by Dr Ziajka (consultant psychiatrist) confirms that on assessment, the claimant met the DSM-5 diagnostic criteria for adult ADHD by demonstrating the following symptoms which could not be explained by another psychiatric disorder:a. inattentive and hyperactive/impulsive symptoms;b. a history of a lifelong pattern of symptomsc. impairment in multiple domains of functioning.[24]The report explains a number of examples of how this condition manifests in daily activities such as losing objects, poor timekeeping and often being late, forgetfulness which results in (for example) leaving the oven on, leaving doors unlocked, difficulty in concentrating on conversations, waiting in queues and following routines. It describes that she has suffered from the symptoms since at least childhood and that they have resulted in stress, anxiety and depression. Medication is recommended, specifically Elvanse. It also reports that the claimant presents with an "ASD profile" and recommends assessment for ASD but records little information about how or whether this profile affects her daily activities (that not being the objective of that assessment) apart from limited examples such as a dislike of clothing labels and noise-sensitivity.[25]During questioning by me, the claimant explained that Elvanse did help with her levels of agitation, hyperactivity and emotional instability. At the time of the hearing, she was unable to access the medication due to a nationwide shortage and she had noticed the difference since then.[26]A letter from the claimant's GP dated 6 January 2023 contains a summary of the claimant's diagnosed mental health and neurodivergent conditions consistent with the above facts and records that the claimant is at that time, awaiting diagnostic assessment for ASD (page 174).[27]There was no evidence of a diagnosis of PTSD and when asked about this, the claimant was unable to confirm that she had been formally diagnosed or to provide evidence of this. There is evidence within the bundle that she had informed other practitioners of this diagnosis without any other details (page 149) but there is no medical evidence about how it impacted her daily activities at the material time.[28]The claimant's impact statement at page 175 sets out the way in which her alleged conditions affect her day-to-day activities. This impact statement states at the top that "every single condition is pertinent as being present from birth….". With regard to her ADHD, anxiety and depression, the extensive symptoms that she describes are consistent with the diagnostic psychiatric report of Dr Ziajka, and other medical evidence, but those she ascribes to her Autism Spectrum Profile are far more limited such as some confusion in social situations and hypersensitivity to loud noises and bright lights. Similarly, the effects of her alleged PTSD are limited and appear to be the same as those attributed to her anxiety (apart from flashbacks which are mentioned). The statement asserting that all the conditions listed within the claimant's impact statement have been "present from birth" is clearly incorrect with regard to PTSD and I have concluded it likely that the claimant intended this statement to specifically apply to her diagnosed condition of ADHD.[29]The submissions of Counsel for the respondent were that there was no GP evidence of the claimant's mental ill-health until March 2021. The OH report in February 2021 contained an opinion that the claimant was not disabled and that at the material time, her alleged conditions of anxiety and depression were not long term and did not have substantial adverse effect on her day-to-day activities. It was submitted that her ADHD was diagnosed a lot later and that there was insufficient evidence that while employed by the respondent, her symptoms were substantial.[30]The claimant submitted that the respondent had focused on what she could do rather than the difficulties that she experienced with day-to-day activities. She submitted that ADHD is a lifelong neurodevelopmental disorder, albeit that she was diagnosed after termination of her employment and that the cumulative effect of all her impairments means that she was disabled at the material time. She further explained in cross examination and submissions that the lack of any GP evidence in the bundle regarding mental health conditions or ill-health before March 2021 was because of the difficulties that she experienced with accessing GP support before this due to a variety of factors and that this was not an indication of her lack of symptoms from her alleged impairments during this time.[31]I conclude that the claimant has experienced substantial ADHD-related symptoms (as set out in paragraph 24 of this judgment above) from at least 12 months before she commenced employment with the respondent. In particular, the significant effect of the claimant's symptoms of forgetfulness, an inability to concentrate, to remain still or to achieve daily tasks are all noted as being prevalent from childhood.[32]I accept that there is sufficient evidence that the claimant suffered from significant symptoms of anxiety and depression from August 2020 at the time of her hospitalisation. Although this is not evident from the claimant's GP records, it is consistent with her oral evidence which I found to be credible and consistent, with her impact statement (page 175), with the fact that she started to take periods off work ill with anxiety stress and low mood soon after commencing employment with the respondent (from October 2020) and with the medical evidence regarding her symptoms of ADHD which include her vulnerability to stress. Relevant
Law
[33]Section 6 of the Equality Act 2010 (EQA) provides a definition of "disability" as follows: a. (1) A person (P) has a disability if: i. P has a physical or mental impairment , and ii. the impairment has a substantial and long-term adverse effect on P's ability to carry out normal day-to-day activities.[34]The burden of proving disability lies with the claimant.[35]The case of Goodwin v Patent Office [1999] IRLR 4 translated the above statutory test into the questions which are set out in this judgment at paragraph 8 above which, although it provided that each question is to be considered separately, also conceived that they may overlap and that the tribunal should bear in mind "the whole picture". Impairment[36]In J v DLA Piper UK LLP UKEAT 0263/09 , the EAT warned against considering the 'Goodwin questions' in a rigid, consecutive manner in cases where alleged impairments are in dispute. Instead, it recommended that: " it will make sense [...] to start by making findings about whether the claimant's ability to carry out normal day-to day-activities is adversely affected (on a long-term basis), and to consider the question of impairment in light of those findings" (paragraph 40). Nonetheless, the Tribunal was still urged to use this approach to distinguish between general, descriptive labels that can often be given to mental illnesses (such as "anxiety", "stress" and "depression") and mental impairments as conceived by EQA.[37]The Tribunal must take into account Statutory Guidance on the definition of Disability (2011) (2011 Guidance) which stresses that whether a person is disabled is generally determined by reference to the effect of an impairment (A4). Further, "it may not always be possible, nor is it necessary, to categorise a condition as either a physical or mental impairment" and "it is not necessary to consider how an impairment is caused" (A6 and A7). Day to day activities[38]It is important to consider the things that a person cannot do, or can only do with difficulty (B9). This is not offset by things that the person can do. This is also confirmed in Aderemi v London and South Eastern Railway Ltd 2013 ICR 391. Day to day activities are things people do on a regular or daily basis such as shopping, reading, watching TV, getting washed and dressed, preparing food, walking, travelling and social activities. This includes work related activities such as interacting with colleagues, using a computer, driving, keeping to a timetable etc (Guidance D2 — D7). Substantial effect[39]S212(1) of EQA provides that "substantial" means more than minor or trivial.[40]Schedule 1 of the EQA gives further details on the determination of a disability. For example, Para 2(2) of Schedule 1 provides that if an impairment ceases to have a substantial adverse effect, it is to be treated as continuing to have that effect if that effect is likely to recur. In SCA Packaging Ltd v Boyle 2009 UKHL 37, the House of Lords ruled that "likely to" means "could well happen".[41]Para (5) provides that an impairment is to be treated as having a substantial adverse effect on the ability of the person concerned to carry out normal day to day activities if measures are being taken to correct it and but for that, it would be likely to have that effect. Long term[42]Schedule 1 para 2(1) provides that the effect of an impairment is long term is it has lasted for at least 12 months, is likely to last for at least 12 months or is likely to last for the rest of the life of the person affected. Cumulative effect[43]The 2011 Guidance also states that: a. "The cumulative effect of related impairments should be taken into account when determining whether the person has experienced a long-term effect for the purposes of meeting the definition of a disabled person. The substantial adverse effect of an impairment which has developed from, or is likely to develop from, another impairment should be taken into account when determining whether the effect has lasted, or is likely to last at least 12 months, or for the rest of the life of the person affected".[44]There mirrors the case of The Governing Body of Rushcroft Primary School UKEAT/0225/09, in which it was held that two consecutive impairments can be aggregated for the purposes of determining the duration of an impairment, provided they are related. ADHD[45]The Equal Treatment Bench Book (ETBB) to which employment judges should have regard lists some of the following symptoms as typical of ADHD in adults:a. "Inability to focus or prioritiseb. Forgetfulnessc. Restlessness and edginessd. Mood swings, irritability and quick tempere. Inability to deal with stress". Conclusions Did the claimant have a mental impairment?
Conclusions
[46]I have concluded in accordance with the statutory authorities from EQA as set out above and the 2011 Guidance that the claimant's condition of ADHD, anxiety and depression were mental impairments. There is a clear relationship between these conditions on the medical evidence and ETBB guidance although it is not possible in my view to determine whether her anxiety and depression resulted from her ADHD or not. There is insufficient evidence to determine this question and I am not required to determine it (paragraphs A6 and A7 2011 Guidance) suffice to conclude that these conditions are related.[47]I do not feel that there is sufficient evidence of the claimant's alleged impairments of PTSD and autism spectrum profile. With regard to the former, other than the claimant's impact statement, there was no other evidence before me of this diagnosis. As for the condition of autism spectrum profile, this is something which is included in the psychiatric report of Dr Ziajka as she presents with some features which may be attributable to ASD and as such, he recommends diagnostic assessment. The letter from the claimant's GP confirms that she awaits this assessment (page 74) as she is felt to have an autistic profile. I am mindful of the fact that no diagnosis is necessary and that I am required to determine disability on the basis of effect rather than cause, in accordance with J v DLA Piper UK LLP UKEAT 0263/09 . I will therefore consider these alleged impairments in the paragraphs below. Did that impairment have an adverse effect on her ability to carry out normal day-to-day activities?[48]With regard to the claimant's ADHD, anxiety disorder and depression, I note the terms of the Statutory Guidance that I should focus not on what the claimant could do but what she could not do or only do with difficulty. I accept that there were things the claimant was able to do, such as attend work for significant periods at the material time but I do not consider that these findings contradict the claimant's evidence, which I have accepted, and other medical evidence, that she had difficulty in sleeping, timekeeping, remembering daily tasks and concentrating on daily activities and interactions. She was able to do these things but only with difficulty and with assistance from others.[49]There is evidence from the claimant's impact statement alone (and to a limited extent from the psychiatric report of Dr Ziajka) that her alleged impairments of ASD profile and PTSD affected her daily activities but usually in relation to her existing impairments of ADHD, anxiety and depression rather than in isolation. Was that effect substantial?[50]The seriousness of the effects varied over the material period. It was clearly a substantial effect when she was absent from 15 February 2021 to 9 April 2021. However, on the basis of the evidence given to me by the claimant I consider that throughout the material period, her impairments of ADHD, anxiety and depression had an effect on her day to day activities as described above, that was more than minor or trivial.[51]I have taken into account the cumulative effect of these conditions1 and also the measures taken by the claimant to treat symptoms of the above impairments from March 2021 in visiting her GP for support and thereafter in the medication which she is prescribed and CBT treatment as set out in the paragraphs above.[52]With regard to her alleged impairments of ASD profile and PTSD, I do not consider that at the material time, there is sufficient evidence that they affected the claimant's day-to-day activities to a substantial extent. The claimant's impact statement is dated February 2023, a year after her dismissal. At the material time, there is little or no evidence to demonstrate any substantial adverse effect from those alleged impairments, even on a cumulative basis as defined by 2011 Guidance.2 Was the substantial adverse effect long term?[53]As noted in paragraph 31 above, I have concluded that there was sufficient evidence of the substantial adverse effect of the claimant's ADHD-related symptoms from childhood. In any event, given the nature of ADHD as a 1 See paragraph 0 above. 2 See paragraph 00 above. neurodevelopmental condition, it was likely that this effect would continue beyond 12 months from the material period of claim. It is difficult to distinguish and artificially divide the claimant's anxiety and depression as distinct impairments from the symptoms of ADHD. I have in mind the equal treatment bench book list of symptoms of ADHD which includes an "inability to deal with stress" and "edginess" and "mood swings" and this is consistent with the psychiatric report of Dr Ziajka which reports the claimant's vulnerability to stress because of her ADHD. I have concluded that these impairments are all related.[54]As distinct impairments, I have found that the claimant's impairments of anxiety disorder and depression did not have a significant (substantial adverse) effect on her until August 2020. As this was not a period of 12 months before the start of the material period of claim on 14 September 2020, I will consider whether those conditions were likely to last for 12 months (until 13 September 2021). The fact that they had in fact, lasted for that period is not relevant. The usual question is whether they were likely to last for that period at 14 September 2020 when the alleged discrimination commenced.[55]I consider that this was likely precisely because of the effect of the claimant's ADHD. The medical evidence within the bundle to which I have referred in this judgment clearly sets out the relationship and comorbidities of the claimant's neurodivergent and mental health conditions. The symptoms of all of them are often identical and indistinguishable. This was something not taken into account in the occupational health report of 10 February 20213 as there had been no ADHD assessment at that point. Therefore, I consider it likely that when the claimant began to experience substantial adverse effect (on day-to-day activities) from anxiety and depression from August 2020 onwards, it "could well happen"4 that these effects could last for at least 12 months. In any event, I have concluded that the claimant's conditions of ADHD, anxiety and depression were all related and as such, can take into account the consecutive and aggregated effect of these impairments.5[56]I therefore conclude that the claimant was disabled because of ADHD, anxiety disorder and depression at the material time.