Ms A Brooker v The Nail and Beauty Zone Ltd: 2302916/2024
REASONS
[1]The issues had been determined with some points for the respondent to complete, at a previous hearing. Employment Judge Evans had ordered the respondent to set out by way of an amended reply the statutory defence, what was its legitimate aim and how was this proportionate. A deadline had been given for that. The claimant subsequently decided not to pursue the claim for detriment because of whistleblowing.[2]We were provided with a revised list of issues and we took some time at the outset of the hearing to go through this. In discussing the issues it was made clear to the respondent that they had not pleaded the statutory defence available to them in claims of indirect discrimination, namely that they have a legitimate aim and the treatment complained of was proportionate means of achieving that legitimate aim.[3]At the time it was noted that they had been ordered to do so in mandatory terms by Employment Judge Evans at the preliminary hearing which took place 18 months ago on 17 July 2024. The respondent argued that they had not needed to comply with this mandatory order because in their view the facts referred to in the termination letter set out the legitimate aim and the proportionate means relied on .[4]We originally rejected this argument but on a subsequent application agreed to reconsider our decision if, having reviewed the termination letter, we reached the view that its terms were sufficiently transparent to have put the claimant’s side on notice of the likely defence that will be run, even though it was not pleaded.[5]We were reminded of this fact at lunchtime adjournment on day three of the hearing. We therefore considered the point and advise the parties that we had reviewed the letter and did not believe that legitimate aim or proportionality were set out. We will not therefore change our decision and conclude that the defence was already part of the proceedings.[6]In the interests of justice I did, however, explain to the respondent that it was free if it wished to do so to apply to amend its reply to add this in. The power to amend can be exercised by the tribunal at any point. The Respondent made that application. Application to amend to add statutory defence by the respondent. Respondent’s application.[7]I gave Mr Lumsden a series of questions to answer having explained the relevant law on amendments. After a brief adjournment he came back and set out the legitimate aim that the respondent wishes to rely on. That is “to ensure reliable client service and fair workload within a small self-funded spa business and to protect business viability so we can meet payroll. The claimant’s sustained absence caused significant operational strain costs and lost revenue in place additional burden on her colleagues”. They considered it was proportionate to dismiss the claimant “because her absence would likely continue for another 3 to 4 months before her SSP would run out. The burden could not continue and put a degree of uncertainty on the team which led to ongoing stress for them.”[8]As to why the application was made only at this stage he said that as a litigant in person they had not understood the preliminary hearing order. He also told me that they made an application to amend subsequently following the second open preliminary hearing but that was refused by the tribunal. This denied them the opportunity of reconsidering their position.[9]If it meant they were not allowed to rais this he argued that this would place them under a degree of prejudice. They would be denied the ability to bring a line of defence which be available to other respondents simply because they were litigants in person who had not understood the error. It would be extreme prejudice and render the hearing unfair.[10]It would require only one additional document or perhaps two pages to show the financial information. It would not require any additional witnesses and would not require any additional time in terms of questions to the current witnesses. Submissions by the claimant[11]The claimant’s representative took issue with the history as the respondent had described it. In Mr Withers submissions the order of EJ Evans was written in plain English. It was expressed in mandatory terms there was no decision required by the respondent as to whether to comply or not. While this was an unrepresented party, the respondents were far from unsophisticated. Mr Lumsden who was representing the respondent had been able to understand the employment tribunal system sufficiently to make a number of applications within its rules. There was no reason why he could not have understood this plain English instruction.[12]It was also submitted that it was a mischaracterisation of events to say that the respondent had been prevented from making an amendment following the second preliminary hearing. We were taken to that correspondence which shows that the respondent asked the tribunal to allow it to amend its reply in the light of the claimant dropping some of her claims. The tribunal replied that no amendment was required where claims were dropped. The application did not refer to the legitimate aim defence and nor did the tribunal’s refusal to allow a further amendment respond to this.[13]In terms of the Selkent balance of rights, while it is true that the respondent will not have available to it a statue defence that is caused by their failure to act in accordance with the orders that were set them. Any prejudice is of the respondent’s own making.[14]There would be considerable prejudice to the claimant. This is raised on day three following the conclusion of her evidence. It has never been put as part of the defence before.[15]Mr Withers did not accept that any further documentary evidence would be limited to one document. He also did not accept that further witnesses and/or further time would not be required. He submitted that the respondent was relying on around eight bullet points as to why it had a legitimate aim and each would need exploration for example strain on other colleagues would potentially require either emails from those colleagues or witness evidence. This would all amount to a vast injustice on the claimant if this amendment were allowed. Amendment Application legal principles[16]That is an application for a case management order. Rule 31 of the Employment Tribunal Rules of Procedure provides: 31.—(1) A party may apply for a case management order at a hearing or by sending a written application to the Tribunal. (2) Where a party makes a written application under paragraph (1) they must notify the other parties that any objections to the application should be sent to the Tribunal as soon as possible. (3) The Tribunal may deal with an application made under paragraph (1) in writing or order that it be dealt with at a preliminary hearing or final hearing.[17]The discretion must be exercised in accordance with the Overriding Objective and “in a manner which satisfies the requirements of relevance, reason, justice and fairness inherent in all judicial discretions”:( Selkent Bus Co v Moore [1996] IRLR 661).[18]Guidance as to the main factors that shed light on the balance of injustice when considering an application to amend where set out in Selkent. In Abercrombie and others v Aga Rangemaster Ltd [2014] ICR it was emphasised that the guidance in Selkent's case was not intended as prescribing some kind of a tick-box exercise. It is simply a discussion of the kinds of factors which are likely to be relevant in striking the necessary balance. Case law, together with the Presidential Guidance on General Case Management for England and Wales on amendments identifies the following considerations. Nature of the proposed amendment;[19]The Presidential Guidance, draws a distinction between amendments seeking to add or substitute a new claim arising out of the same facts as the original claim and those which add a new claim entirely unconnected with the original claim.[20]As the Court of Appeal determined in Abercrombie, in considering applications to amend which arguably raise new causes of action the focus should not be on questions of formal classification but on the extent to which the new pleading is likely to involve substantially different areas of enquiry from the old: the greater the difference between the factual and legal issues raised by the new claim and by the old, the less likely it is that the amendment will be permitted.[21]In order to determine whether the amendment amounts to a wholly new claim, as opposed to adding or substituting a new cause of action linked to or arising out of the same facts as the original complaint, it will be necessary to examine the case as set out in the Claim to see if it provides a causative link with the proposed amendment. The entirety of the Claim form must be considered.[22]This should be considered first, before any time limitation issues are brought into the equation, as it is only necessary to consider the question of time limits where the proposed amendment in effect seeks to adduce a new complaint, as distinct from ‘relabelling’ the existing claim. Timing and whether time should be extended pursuant to the statutory test[23]Time limits are required to be considered where there are entirely new claims unconnected with the original claim as pleaded. It is essential for the tribunal to consider whether that claim or cause of action was out of time and, if so, whether the time limit should be extended. The timing and manner of the application.[24]In Ladbrokes Racing Ltd v Traynor EATS 0067/06 the EAT gave guidance as to how a tribunal may take account of the timing and manner of the application in the balancing exercise. It will need to consider: why the application is made at the stage at which it is made and why it was not made earlier ,whether, if the amendment is allowed, delay will ensue and whether there are likely to be additional costs because of the delay or because of the extent to which the hearing will be lengthened if the new issue is allowed to be raised, particularly if these are unlikely to be recovered by the party that incurs them; and whether delay may have put the other party in a position where evidence relevant to the new issue is no longer available or is rendered of lesser quality than it would have been earlier. The balance of hardship the hardship and injustice of allowing the amendment against the injustice and hardship of refusing it.[25]In Vaughan v Modality Partnership [2021] IRLR 97 the EAT confirmed that the core test in considering applications to amend is the balance of injustice and hardship in allowing or refusing the application. The parties must therefore make submissions on the specific practical consequences of allowing or refusing the amendment. This requires a focus on reality rather than assumptions. It requires representatives to take instructions, where possible, about matters such as whether witnesses remember the events and/or have records relevant to the matters raised in the proposed amendment. Representatives have a duty to advance arguments about prejudice on the basis of instructions rather than supposition. They should not allege prejudice that does not really exist.[26]Where they do not do so, it will be difficult for them to challenge a judgment on the basis that the balancing exercise has not been carried out correctly.[27]In summary it is vital to appreciate that, whichever ‘type’ of amendment is proposed, the core test is the same: the tribunal must review all the circumstances, including the relative balance of injustice, in deciding whether or not to allow the amendment . Conclusion on the amendment application[28]We have carefully considered the factors are set out in Selkent and in particular in Vaughan and Modality Partners.[29]In terms of the timing of this amendment this is made almost as late as possible to make such an amendment. As part of the factual background we conclude that while the respondent is unrepresented, Mr Lumsden is far from an unsophisticated party. He is a director of a successful business. He has been able to understand and use the tribunal rules in making a number of applications. We do not accept that it is reasonable for the respondent to fail to understand the plain English that was set out in EJ Evans order.[30]We concluded that the respondent made a choice not to amend its defence. We also do not accept that the respondent was unable to make amendments because the tribunal had refused this. On the correspondence we have seen this was on an entirely different amendment point. We conclude that the respondent has left this almost to the last minute, despite having been ordered to provide its statutory defence nearly 18 months ago.[31]In terms of prejudice. We accept that the respondent will be prejudiced because it cannot rely on a statutory defence. We do not accept Mr Lumsden’s view that only one short document would be required. On balance we prefer Mr Withers’s view that we would need additional witness evidence and/or significant numbers of documents. The legitimate aim put forward by the respondent has many parts each one of which would need to be tested by evidence. To allow the amendment in now would cause significant delay and is highly likely that the case could not be heard within the current trial window. The prejudice to the claimant of having to deal with a significant defence at this late stage, and the very strong likelihood the case would have to be postponed and relisted are hugely significant.[32]Balancing all matters in the round, we conclude that on this occasion the prejudice would be greater for the claimant if we were to allow the amendment. The respondent is in this position through its own default. Preliminary matters[50]Before the hearing could start we were asked to determine two preliminary issues. The respondent’s representative also raised the question as to how we were going to deal with the issue of time limits which is included in the issues list. I explained that this would not be dealt with as a preliminary issue, but would be considered in the round as part of our deliberations on all matters.[51]The two issues we were asked to deal with were an issue of redaction of medical documents and an application for a strikeout. Redaction of documents[52]The claimant had originally provided medical documents which contained two sets of redactions. One set had been carried out by her GP prior to the doctors being provided to the claimant, the second set had been done by the claimant.[53]Employment Judge Ramsden looked at these documents and made a decision on 4 November 2025. However, that left four documents which were not addressed in her decision which still contained blacked out phrases. The respondent maintained that wish to understand what these were.[54]Accordingly we reviewed these pages being 16, 33, 47 and 48. We concluded that the deletion of information at16 was not materially relevant. We agreed that reference to who provided a report when the report had already been determined as not being relevant or disclosable should continue to be redacted. The other documents had ready been provided within the bundle in an unredacted form. Application by the respondent to strike out the claim of automatically unfair dismissal[55]Mr Lumsden on behalf the respondent made an application to strike out the claim of automatically unfair dismissal. His application was on two grounds which were closely related. He considered that the ACAS early conciliation certificate was not given properly and that the tribunal therefore had no jurisdiction to hear the claim relating to whistleblowing.[56]This was for two reasons. His first submission was that the claimant had not raised the issue of whistleblowing in her grievance and that only the grievance matters were the subject of the ACAS conciliation. Whistleblowing was not therefore something that the respondent had an opportunity to enter into conciliation on and that made the certificate defective.[57]His second submission was that the dismissal post-dated the end of the conciliation by two weeks and therefore dismissal because of whistleblowing could not be something that was in the claimant’s mind or a claim that she intended to bring at the point that conciliation occurred. This also made the ACAS certificate defective.[58]To the extent that any defect could now be cured by the granting of an amendment application, this would not be in the interests of justice. The respondent was facing five-day hearing and the need to take witnesses from its business which was a distraction. There was no benefit to the respondent in the case proceeding. Submissions by the claimant[59]I was presented with three authorities (one of which have been referred to by the respondents representative). I refer to these below. In summary Mr Withers, on behalf the claimant, submitted that all that is required before relevant proceedings relating to any matter are brought is for the claimant to provide prescribed information to ACAS about that matter.[60]There is no requirement for all matters that are subsequently set out in the ET1to be set out in detail. It was his primary submission that the claimant had met the requirements of section 18 A of The Employment Tribunal’s Act[61]His secondary submission, if we didn’t accept this, and concluded that dismissal could not be a matter that was part of the ACAS certification process because it postdated the end of that process, was that this would mean that the tribunal had no jurisdiction. In those circumstances, however, the appropriate thing to do would be to allow an amendment as that would be in the interests of justice. This was the approach taken in the existing case law on the point.[62]The respondent had not raised this point until today despite there being two preliminary hearings already, one of which had been to deal with the respondent’s application to strike out the claim on other bases. All the witness statements had been served and prepared. Removing the automatic unfair dismissal claim would say very little time as it would still leave the disability discrimination claims. Relevant law[63]The statutory requirement to obtain an ACAS certificate is set out in section18 A of the employment tribunal’s act 1996. “Before a person (“the prospective claimant”) presents an application to institute relevant proceedings relating to any matter, the prospective claimant must provide to ACAS prescribed information, in the prescribed manner, about that matter.”[64]I was referred to Clark and ors v Sainsbury’s Supermarkets 2023 EWCA Civ 386 and to Reynolds v Abel Estate Agent Ltd and ors 2025 EWCA Civ 1357, CA, in which the Court of Appeal confirmed that section 18 A does impose jurisdictional requirements. If a claimant fails to comply with the EC requirements in respect of a relevant claim, the tribunal is precluded from entertaining it[65]In Reynolds v Abel Estate Agent Ltd the court considered that this approach was consistent with Parliament’s purpose that the tribunal should not be empowered to hear claims until an opportunity for Acas conciliation has been afforded. However, it agreed with the EAT that, following the Court of Appeal’s decision in Clark and ors v Sainsbury’s Supermarkets Ltd once a claim mistakenly passes the initial ‘gateway’ stage at which a claim form may be rejected under rules 12 and 13, it cannot be retrospectively rejected under those rules. Instead, any consequences of non-compliance must be dealt with under the tribunal’s case management powers.[66]I was also referred to Science Warehouse Ltd v Mills 2016 ICR which is approved by the court in Sainsbury’s. That decision, at paragraph 24 confirms that section 18 a does not suggest that the information given to ACAS have to formally set out each cause of action, and each claim. A broader interpretation is suggested because the section uses broader terminology of matter rather than cause of action or claim. I understand that the requirement for early conciliation to validate taken place is therefore further to have been a discussion of the matters that are being raised but not a requirement to specify each specific cause of action or claim. Conclusions[67]Section 18 A does require that some limited information must be provided to ACAS about “that matter”. I conclude that this does not have to been exhaustive list. It does not have to include every claim they claimant has subsequently brought. On that basis the fact that the claimant’s grievance did not expressly reference whistleblowing does not mean that whistleblowing as a matter was not covered by the ACAS early conciliation certificate. I do not accept the respondent’s argument that specific details must be given. I conclude that there is simply no requirement to set out all the details of the claim which are subsequently brought.[68]If that was the only application made by the respondent then the application to strike out the claim would not succeed. I find that whistleblowing in general could be brought as a claim by the claimant even if it is not referenced in her grievance or expressly referred to by ACAS. I should add that I’m extremely reluctant to hear any details about what ACAS did or did not discuss with the parties as this is clearly privileged information that the tribunal should not be party to.[69]We would therefore reject the application to strike out it was made on this basis only. However, we have sympathy with the respondent’s argument that the automatically unfair dismissal was not covered by the ACAS certificate as this could not have been known to the claimant until two weeks after the conciliation. We conclude that this claim is not within the scope of the existing ACAS conciliation certificate[70]However, we have then gone to consider the claimant’s consequential application were we to find this which is to accept an amendment to add in automatically unfair dismissal.[71]In the circumstances we conclude that it would be in the interest of justice to do so. The claimant brought this claim from the very beginning as it was in her claim form. The respondent has not objected to it at any time until today, despite having opportunity to do so at two preliminary hearings. It will be severely prejudicial to the claimant at this stage to lose her claim by having it struck out. There is always disadvantage to the respondent in having to deal with a claim, however it is ready to do so. It’s witness statements have addressed this point. The case is ready for a five-day hearing. There will be no saving of time or witness attendance if this issue were not part of the claim as we would in any event have to go on to deal with the discrimination matters. For these reasons we are not striking out the claim for automatically unfair dismissal. F Mclaren 13.4.26