Ms J Chen v Cut Your Wolf Loose Ltd and others: 2303809/2023
EMPLOYMENT TRIBUNALS
Case No 2303809/2023
Between
Ms J ChenClaimantCut Your Wolf Loose Ltd and othersRespondent
Before
Employment Judge CawthrayIn person for claimantDate 5 October 2024
JUDGMENT
The Claimant’s application to amend her claim is permitted in part and refused in part.
REASONS
[1]The Claimant was employed by the First Respondent, between 1 September 2021 and 15 September 2022.[2]Early Conciliation took place between 12 and 20 September 2022.[3]The Claimant submitted her claim form, the ET1, on 27 October 2022.[4]At box 8.1 of the ET1 the Claimant ticked the following boxes: unfair dismissal, discrimination – age, race and sex, that she was owed holiday pay arrears of pay and other payments and that she was making another type of claim in relation to pension contributions.[5]At box 8.2 of the ET1 the Claimant included four paragraphs of text. “Sebastian Woolf, Paul Newton and some former employees conspired together against me. Paul Newton sexually harassed me on two occasions by kissing my neck without my consent and insinuating either a sexual relationship between us or profit himself at the expense of myself is essential for my job security. Paul Newton also expects me to be obedient and behave in accordance with his preference. Sebastian Woolf and Paul Newton decided to dismiss after I raised a formal grievance and demanded my workplace pension contributions, pay raise and holiday pay. I was not extended a contract of employment until a digital contract with flaws was provisionally drafted and sent via email by Paul Newton on 14 August 2022, the terms of pension in the initial draft stated "There is no pension scheme applicable to your employment. The Company will comply with Pension legislation as it becomes law", whereas there is no record of the company paying my workplace pension after confirmed with the pension provider despite workplace pension has been deducted from my gross income since my employment with the company and it is on all my payslips. It is illegal to not have a workplace pension scheme and this has been reported to The Pension Regulator, however I have never heard anything from the TPR since then due to I will not be notified of the investigation progress and outcome. On an occasion at the workplace, Sebastian Woolf, Paul Newton, a former employee Hux and her boyfriend Tom were talking about online low price Chinese commodities , Hux said "cheap shit made in China" and Tom replied "Vivian made it"(I prefer to be called Vivian), they all had a good laugh as they found it amusing. I have raised my concerns with Sebastian Woolf and hoped him to fully address my concerns on numerous occasions, whereas Sebastian Woolf shirked his responsibilities as the company director and shifted the blame onto me by saying "I really want staff to get along, is this a culture thing that you always accuse and compete with your colleagues?" They constantly isolated me, took my diligence for granted and refused to compliment and promote me despite me being the most productive employee and has earned the most recognition from customers, but they still see me as a threat. My final pay has been received, whereas my workplace pension contributions has been missing since my employment started in September 2021, it is still missing after receiving my final pay from Cut Your Woolf Loose.”[6]At box 9.2 the Claimant set out what compensation and remedy she was seeking.[7]A Case Management Preliminary Hearing was conducted by Employment Judge Tsamados on 23 January 2024.[8]The Record of Preliminary Hearing indicates that the a discussion about the complaints the Claimant was seeking to bring took place, this is mostly noted in paragraphs 21 to 24 of the Record of Preliminary Hearing. The Claimant was ordered to provide further information: “Further information[9]By 27 February 2024, the claimant must write to the Tribunal and to the respondents with the following information:a. In respect of her complaints of age discrimination, sex discrimination, race discrimination, harassment and victimisation, by reference to the paragraphs within her claim form, which allegations she relies upon for each complaint.b. The claimant’s permitted to add the dates of incidents, the names of the alleged perpetrators and any witnesses but not to add further allegations or complaints to her claim (see the guidance as to amendments below).” 9. Within the Record of Preliminary Hearing Employment Judge Tsamados directed urged the parties to take legal advice. He also set out guidance on various matters including direct discrimination, harassment and victimisation and amendments. The guidance in relation to amendments states: “Amendments j. A claim can be amended at any time but needs the Tribunal’s permission. In deciding whether to allow in amendment, the Tribunal must take account all the circumstances and balance the hardship and injustice of refusing the amendment against that of allowing it. k. Different considerations apply to an amendment to add a new complaint based on new facts or a simple re-labelling of a complaint that is already set out in the claim form. The Tribunal may also need to take into account whether the amendment application has been made outside the relevant time limits to bring claims.”[10]On 8 April 2024 a solicitor went on the record for the Claimant. On 15 April 2024 the Claimant’s solictor submitted an 11 page document headed “Response to the Tribunal’s Order for Further Information about the Claimant’s Claims”. It does not comply with the clear directions of Employment Judge Tsamados’ order.[11]A case management preliminary hearing took place on 17 April 2024 and was conducted by Employment Judge Macey. The Claimant was represented by Ms. Ahmad, Counsel, at the hearing. The Claimant withdrew complaints relating to arrears of pay and failure to pay holiday pay.[12]Case management directions were set, including directions for disclosure, production of a file of documents and witness statements, the deadlines being 12 July 2024, 16 August 2024 and 4 October 2024.[13]Again, a further discussion about the basis of the claim took place. In relation to compliance with Employment Judge Tsamados’ orders, Employment Judge Macey states: “47. The claimant did not provide the information by 27 February 2024. The claimant instructed solicitors on 8 April 2024 and on 15 April 2024 (two days before today’s hearing) the claimant’s solicitors sent a document titled “Response to the Tribunal’s Order for Further Information about the Claimant’s Claims” [47-57 of the bundle for preliminary hearing] to the Tribunal and the respondents.48. The majority of this document included fresh factual allegations that were not within the claim form. It also included additional claims of automatic unfair dismissal under section 100 Employment Rights Act 1996, failure to provide rest breaks under the Working Time Regulations and detriment as a result of adverse and unsafe working conditions.49. Excepting paragraphs 1.1, 1.2, 5.1, 12 and 13 I explained that this document raised new factual allegations and new claims and that if the claimant wanted to include these new factual allegations and new claims in her claim from an application to amend her claim form would need to be made in writing. Further that as an interpreter was not present at the hearing I was not prepared to hear representations about that application to amend her claim form during the hearing.[14]Further, at paragraph 50 Employment Judge Macey said: “51. Due to the above I granted the respondents permission to amend their ET3’s with a long deadline to allow for an application to amend by the claimant to be made in writing and for a decision to be made on it by the Tribunal. The list of issues was therefore not agreed during this hearing because of the likelihood of it requiring substantial amendment and I recommended that after the respondents had submitted their ET3s the parties should attempt to agree a list of issues and send it to the Tribunal. Further, that if no agreement was reached by 5 July 2024 the parties should ask the Tribunal to list a further preliminary case management hearing to finalise the agreed list of issues.”[15]For completeness and ease of reference, I have set out here paragraphs 1.1, 1.2, 5.1, 12 and 13 of the Response to the Tribunal’s Order for Further Information about the Claimant’s Claims.1.1 In late September 2021 the Second Respondent walked the Claimant back to her flat after their shift had ended. The Claimant and Second Respondent embraced to say goodbye and the Second Respondent leaned towards the Claimant and kissed her on the neck passionately and intimately. The Claimant immediately pulled back and walked away to her flat.1.2 In early October 2021 the Second Respondent walked the Claimant back to her flat after their shift had ended. The Claimant and Second Respondent embraced to say goodbye and the Second Respondent again leaned towards the Claimant and kissed her on the neck passionately and intimately. The Claimant immediately pulled back and walked away to her flat. 5.1 The Claimant recalls an incident that occurred at her place of work in June/July 2022 where the Second Respondent and Third Respondent, Hux and Hux’s boyfriend (Tom) were talking about the low cost of Chinse goods and commodities. Hux made a comment about “cheap shit being made in China” and Tom replied “Vivian made it” (the Claimant is called Vivian informally). Everyone then laughed at the Claimant’s expense. She found the remarks highly offensive and the fact that everyone laughed made her feel belittled and humiliated. Tom looked at the Claimant with disdain and disgust. Afterwards, the Claimant raised her concerns about this incident with the Third Respondent who was dismissive and downplayed the remarks made by Hux. He suggested that the Claimant was overreacting. He urged the Claimant to try and “fit in” and “get along” with her colleagues. 12. The Claimant’s original contract of employment stated that there was “no pension scheme applicable” to her employment but that her employer would “comply with Pension legislation as it becomes law”. When the Claimant queried this with the Second Respondent, he admitted that her contract was “poorly worded”. He assured the Claimant that she had been registered for a workplace pension scheme with NEST. 13. The Claimant alleges that there is a shortfall in the amount of pension contribution received from the First Respondent. The Claimant’s October 2021 payslip shows a year-to-date employer’s pension contribution of £71.62, but this is not reflected on her NEST pension statement. The first contribution the Claimant received from the First Respondent was for the sum of £44.05 on 19th November 2021. The Claimant has reported the shortfall to The Pensions Regulator who are currently carrying out an investigation.”[16]It is understood that these paragraphs were considered to be clarification of allegations that are within the claim form, and1.1 and1.2 are complaints of sexual harassment and 5.1 a complaint of race harassment. The legal basis of paragraph 12 and 13 are still not entirely clear what the legal basis of the complaints relating to paragraphs 12 and 13 are. It appears the Claimant is saying she is owed for pension contribution for October 2021. I still consider it necessary for there to be clarification of the legal basis of this allegation.[17]On 24 April 2024 the Claimant’s solicitor withdrew from the record.[18]On 26 April 2024 the Claimant made an application to amend her claim. The application is contained in a 12 page word document, and in essence it contains the exact same information as that in the Response to the Tribunal’s Order for Further Information about the Claimant’s Claims except paragraphs 1.1, 1.2, 5.1, 12 and 13 have been removed.[19]On 19 June 2024 a further case management preliminary took place, and was heard by Employment Judge Wright. At this hearing, Employment Judge Wright stated that there had not been compliance with Employment Judge Tsamados’ order for further information and that the application to amend was outstanding. It is not clear from the Record of Preliminary Hearing whether or not Employment Judge Wright had seen the Response to the Tribunal’s Order for Further Information about the Claimant’s Claims dated 15 April 2024. She stated: “the claimant has not complied with EJ Tsamados’ Order of the 23/1/2024 paragraph 9. She was directed to provide that information by the 27/2/2024. If, as per the application to amend made on the 26/4/2024, the claimant has indeed provided that information, then she is Directed to provide that information separately, as per EJ Tsamados’ Order within 14 days. If not, then the this is the second occasion the claimant has been Directed to provide that information (of which she has been aware since 23/1/2024) and she is to do so, again within 14 days. It is not open to the claimant to ignore the Orders of the Tribunal. Furthermore, the Tribunal will not necessarily indulge the claimant in considering further applications, when more fundamental matters remain outstanding and the claim as pleaded is not being actively pursued.”[20]Employment Judge Wright also noted potential delay to the final hearing.[21]At the outset of the hearing today I explained to the parties that the hearing was to consider and decide upon the Claimant’s application to amend dated 24 April 2024. I explained that before considering the application to amend I needed to be as clear as possible on the allegations in the claim form and also understand how the Claimant was seeking to amend her claim. It was discussed that paragraphs 1.1, 1.2, 5.1, 12 and 13 set out the detail of complaints of sexual harassment, harassment related to race and matters relating to refund of pension contributions (the Claimant was not clear on the legal basis of this claim).[22]I explained that, on a quick review of the headings and information in the application to amend, I was not entirely clear on what legal complaint the Claimant was seeking to bring in relation to each paragraph of narrative.[23]I explained to the Claimant that I was not able to give her legal advice, but that I could explain the operation of law and record what she says. I noted that the Claimant had legal assistance in producing the application to amend, which is based on the further information document. I explained the operation of legal provisions such as direct discrimination, harassment and victimisation several times, I directed the Claimant to the guidance provided in Employment Judge Tsamados’ Record of Preliminary Hearing and the provisions in the Equality Act 2010.[24]I have set out below the paragraphs in the Application to Amend, for ease of reference. During the hearing, each paragraph was discussed. The text highlighted in red records what the Claimant told me the legal complaint was. If the Claimant said any particular paragraph was background only, I have struck through the text and noted the position. I relation to some paragraphs the Claimant sought to amend the paragraph further, and this is also noted below. Significant time was given to discussing the Claimant’s application to amend.[25]It is important to note that the Claimant did have an interpreter available at the hearing. The Claimant chose when to use translation services. Sometimes she spoke with me in English directly, and other times she used the interpreter. I had explained that she could use the interpreter as much, or as little, as she wished.[26]As noted above, set out below is the text of the Claimant’s “Application for leave to amend claim”. Sexual Harassment (s.26(2) Equality Act 2010) (See para 8.2 of GOC) page 9 of bundle) 1.3. In or around October 2021, the Second Respondent remained behind in the bar after he had finished his shift. The Claimant was still on shift. The Second Respondent mentioned that his girlfriend was away on a long holiday, that he was very lonely, and that the only company he had was his cat. The Claimant stated: “your cat is very cute, you have the best company”. The Second Respondent looked at the Claimant and replied: "My cat might be cute, but she is very bad at sex." The way he said this and looked at the Claimant made her feel extremely uncomfortable. She called her boyfriend to come and pick her up at the end of her shift. [Sexual harassment] 2. On each occasion, the Claimant felt intimidated, violated and degraded by the Second Respondent’s conduct. She had informed the Second Respondent that she was in an established relationship. She did not feel as if she could speak out or say anything to the Third Respondent or any of her colleagues, as the Second Respondent was her manager, and she was worried that it would result in her being dismissed from her job Harassment (s. 26(1) and (2) Equality Act 2010) and Victimisation (s. 27 Equality Act 2010) 3. The Claimant alleges that after she rejected/refused to submit to the Second Respondent’s unwanted sexual advances, she noticed a drastic change in his behaviour and attitude towards her. The Claimant felt as if the Second Respondent singled her out and treated her unfavourably compared to other staff members. By way of example:3.1 On two separate occasions in July/August 2022, the Second Respondent invited the Claimant out for drinks and then requested that the Claimant settle the bill in full. The Claimant felt like she did not have any choice as the Second Respondent was her manager. She felt as if he was abusing his position of authority and attempting to punish her for rejecting him. Background – due to seniority3.2 The Second Respondent would often talk about the Claimant to other members of staff, deliberately within earshot of the Claimant. For example, the Claimant recalls an occasion when the Second Respondent and Hux (a co-worker) were discussing the Claimant’s attire and her figure behind her back, which made her feel extremely uncomfortable. [The Claimant references two incidents, one at Halloween 2021 and the other occasion when she was wearing a dress with sleeves.] [Harassment – sex and/or race and/or age]3.3 The Second Respondent worked tirelessly over the Christmas period in 2021 whilst everyone else was off. The Second Respondent threatened to reduce the Claimant’s hours and to give them to Zack (a co-worker) instead. When the Claimant tried to express concern about this, the Second Respondent accused the Claimant of undermining his authority. He accused the Claimant of having an “attitude problem”. [Harassment – race]3.4 The Claimant alleges that the Second Respondent made arbitrary and unreasonable demands of her. For example, he demanded that she change her cocktail recipes frequently, which placed the Claimant under significant stress and pressure unnecessarily. She alleges that requests of this nature were not made of her coworkers. [Direct sex discrimination]3.5 The Second Respondent constantly put the Claimant down and refused to acknowledge her exceptionally strong work ethic and/or the quality of her work. The Claimant recalls an incident where a regular customer came up to her and praised her for her choice of whiskey for him, stating that she was a “genius”. The Second Respondent responded by saying something along the lings o “please don’t compliment her, it will just make her proud”. What began as a highly encouraging and positive compliment from a customer was twisted by the Second Respondent into something negative, and made the Claimant feel very despondent. [Harassment – sex and race]3.6 The Second Respondent told the Claimant that he was struggling financially and intimated that he needed to borrow money from her, after discovering that the Claimant had lent money to one of her colleagues. This made the Claimant feel highly uncomfortable. [Background]3.7 The Second Respondent had a tendency to change the work rota at exceptionally short notice and sometimes without informing the Claimant, and he would then blame her for being late to work. The Claimant feels that the Second Respondent was attempting to find ways to set her up to fail. [Background]3.8 The Second Respondent sought to undermine the Claimant’s relationships with her colleagues. For example, the Claimant asserts that the Second Respondent caused a rift in her relationship with her colleague, Maria, who began a relationship with the Second Respondent. Previously, Maria had been amicable towards the Claimant, but after initiating the relationship with the Second Respondent, she became distant and aloof. The Claimant remembers an incident in June 2022 when Maria declined to sit with her at a cocktail competition. [Harassment – sex and race]3.9 The Second Respondent regularly belittled the Claimant and made her question her self- worth. For example, on a work trip to a distillery, the Second Respondent kept stating that her colleague Maria should have been selected to go on the trip rather than the Claimant. [Harassment – sex and race] 4. The Claimant asserts that the behaviour of the Second Respondent towards her fostered an atmosphere of intimidation, fear, hostility, and toxicity in her workplace. She felt controlled and victimised. She experienced profound anxiety at the thought of going to work. The constant ridicule and mistreatment made the Claimant feel extremely despondent. The behaviour described in paragraphs 1-3 above had the purpose and / or effect of violating the Claimants dignity and creating an intimidating, hostile, degrading, humiliating and offensive environment for her. The Claimant contends that it was reasonable for the conduct to have this effect. [No protected act was identified by the Claimant– no victimisation complaint is set out in this section.] Race discrimination (s.9 Equality Act 2010) (See paragraph 8.2, GOC, page 9 of the bundle) 5.2 The Claimant recalls another incident involving Hux which took place in June 2021, whereby Hux placed stickers over positive feedback left in writing by customers regarding the Claimant so that the comments could no longer be read. The Claimant felt that Hux was specifically targeting her due to her ethnicity/race. [Harassment – race] 5.3 The Claimant felt she treated differently and “othered” on account of her race. She was excluded from work events. For example, in or around November 2021 a competition was invited to attend. Instead, she was instructed to work whilst the competition took place. Whilst her co-workers enjoyed themselves at the competition, she was left to wash up a large quantity of glasses after the event had finished. [Harassment – race] 5.4 The Claimant alleges that the Third Respondent consistently voiced complaints about Chinese culture to her. He complained often about his former partner (a Chinese national). Additionally, he expressed dissatisfaction about Chinese customers leaving graffiti containing swear words on the walls of the shop, whilst actively encouraging British patrons to contribute to the wall art (despite the fact they would often draw explicit images and write swear words).Furthermore, whenever the Claimant mentioned details about herself and her boyfriend, the Third Respondent would interject with remarks like, "Is this a cultural thing?" The Third Respondent’s dismissiveness towards Chinese culture and people, made the Claimant feel incredibly uncomfortable. [Harassment – race] 5.5 The Claimant asserts that her co-worker, Zack, exhibited discriminatory behaviour towards customers based on their ethnicity and race. She contends that he displayed preferential treatment towards Caucasian customers while demonstrating prejudice against black individuals and Asians, causing her to feel extremely uncomfortable. The Claimant recalls an incident in which Zack unjustly asked two black women to leave the bar. Despite bringing her concerns to the attention of the Second Respondent, no action was taken. [Harassment – race] 5.6 The Claimant alleges that throughout her employment she was constantly being reminded of her Chinese nationality, in particular by her colleague Zack. The Claimant alleges that Zack mocked the Claimant in front of customers by making inappropriate gestures and interrupting the Claimant when she was talking to the customers and taking orders. The Claimant felt that she was targeted by Zack due to her race. [Harassment – race] 5.7 The Claimant alleges that Zack would talk about the Claimant to other members of staff within earshot of the Claimant. When the Claimant tried to confront Zack about this he said, "we are talking about you, not to you." [Harassment – race] Age discrimination (s.5 Equality Act 2010) (See paragraph 8.1, ET1 page 6 of the bundle) 6. The Claimant alleges that she was discriminated against on account of her age. By way of example: [The Claimant says that at the dates of the events she complains about, end of September 2021, she was 39 years old. She said she compares herself with people in their 30s.]6.1 Zack made assumptions about her age based on her hair colour and her lifestyle. He made a point of repeatedly and obsessively trying to guess the Claimant’ age. The Claimant asked Zack to stop it as it made her feel uncomfortable. Zack also comments about colour, and when she refused to tell him her age again, he stated "You're 42! You dye your hair..." His mocking tone made the Claimant feel disrespected and helpless. The Claimant also recalls an incident that took place during a shift, where Zack used his tall and imposing stature to back the Claimant into a corner and demanded to know how old she was. She felt frightened and intimidated. The Claimatnt raised her concerns about Zack’s behaviour with the Second Respondent who was dismissive and refused to take any action. As a result, the Claimant decided to resign in April 2012. However, a week later, she reconsidered after discussing the matter with the Third Respondent and returned to work. Unbeknownst to her, the Second Respondent covertly arranged for Zack to find a replacement. Everyone knew about this except the Claimant. When the Claimant found out about this, she felt betrayed and utterly despondent. She experienced suicidal thoughts. [The Claimant said that the two comments made by Zack are allegations of direct age discrimination. She says the second part is a victimisation complaint. After discussion it was agreed she was seeking to split paragraph 6.1 into two allegations as set out below. For ease of reference, I have renumbered them 6.1A and 6.1B. She also gave more information about dates, which I have noted in square brackets and red highlighted text.] 6.1A Zack made assumptions about her age based on her hair colour and her lifestyle. He made a point of repeatedly and obsessively trying to guess the Claimant’ age. [The Claimant says this was end of September 2021.] The Claimant asked Zack to stop it as it made her feel uncomfortable. Zack also comments about colour, and when she refused to tell him her age again, he stated "You're 42! You dye your hair..." His mocking tone made the Claimant feel disrespected and helpless. [The Claimant says this was July or August 2021.] The Claimant also recalls an incident that took place during a shift, where Zack used his tall and imposing stature to back the Claimant into a corner and demanded to know how old she was. She felt frightened and intimidated. [Direct age discrimination] 6.1B The Claimant raised her concerns about Zack’s behaviour with the Second Respondent [the Claimant says this was in late September 2021] who was dismissive and refused to take any action. As a result, the Claimant decided to resign in April 2012. However, a week later, she reconsidered after discussing the matter with the Third Respondent and returned to work. Unbeknownst to her, the Second Respondent covertly arranged for Zack to find a replacement. Everyone knew about this except the Claimant. When the Claimant found out about this, she felt betrayed and utterly despondent. She experienced suicidal thoughts. [Victimisation]6.2 The Claimant also recalls an incident where her age was discussed in a work WhatsApp group chat. A former manager called Lee verbally asked the Claimant to confirm her age, and when she didn't tell him, he later wrote in the WhatsApp group chat "tell me your age, don't worry, your age will be kept top secret and locked in a special agent's office!". When the Claimant told the Third Respondent she felt uncomfortable and upset by these comments, he said he also felt that Lee’s comments were “inappropriate” but that she should pay no attention to it. No action was taken. [Harassment – age] Sex discrimination (s.13 Equality Act 2010) 7. The Claimant alleges that she was discriminated against on account of her sex. She felt that the workplace was characterised by a highly hostile attitude towards women and towards her because of her sex. By way of example:7.1 During a meeting with the Third Respondent [the Claimant says this was in summer 2022], the Claimant raised concerns about the duration of her shifts and the fact she was often having to work alone. She informed the Third Respondent that she had been subjected to sexual harassment and felt she had been singled out and bullied by the Second Respondent. She asked the Third Respondent "Can you imagine being a woman?", to which he laughed and said, "No! Fuck no!" [Direct sex discrimination]7.2 The Third Respondent once mocked his ex-wife in front of the Claimant and made derogatory comments about women in general, which the Claimant found hurtful and insulting. [Harassment - sex.]7.3 Zack made remarks to the Claimant about women he had previously worked with describing them as “very rude”. When the Claimant asked him what he meant by this, he was unable to elaborate and stated, “they were bitches and screwed everything up”. [Harassment – sex] Detriment/adverse working conditions 8. The Claimant alleges that she was exposed to detriment as a result of adverse and unsafe working conditions. For example:8.1 The Claimant was regularly required to work long shifts (10-12 hours in duration) in order tocover for other members of staff. She often completed these shifts without being able to take an adequate rest break, in contravention of The Working Time Regulations 1998. The Claimant raised her concerns with the Second and Third Respondents, but no action was taken.8.2 The Claimant was often required to work in the bar alone at its busiest times (Saturday evenings). The Second Respondent was meant to support the Claimant during these busy shifts but he never did. During these times, the Claimant was often surrounded by intoxicated and rowdy customers. She felt unsafe and vulnerable and felt she was left with no choice but to reach out to friends to request their help in the bar. The First Respondent failed to comply with its legal duty to provide a safe place and safe system of work as required by section 2 of the Health and Safety at Work Act 1974. The Claimant raised her concerns with the Second and Third Respondents.8.3 In August 2022, the Second and Third Respondents reluctantly agreed to issue the Claimant with a contract of employment (she had made various verbal requests for a contract but had not been provided with one). When she raised the fact that she had not taken any holiday, the Second Respondent stated that there were insufficient staff available to provide cover, implying that she was unable to take a holiday. He stated something along the lines of "you have never requested a holiday before. I thought you didn’t want holidays.” The Claimant felt like she was being exploited. She secured one week off work which made the Second Respondent very her statutory right to holiday and written terms and conditions. [Direct race discrimination] Unfair Dismissal 9. The Claimant alleges that she was dismissed for an automatically unfair reason pursuant to section 100 Employment Rights At 1996. The circumstances of the Claimant’s dismissal are particularised as follows:9.1 On the 3rd September 2022 the Claimant was asked to work alone from 10.30am to 11pm. By approximately 4 PM, the Claimant felt extremely hungry and hadn't taken any breaks. Despite requesting a brief 5-minute break from the Third Respondent, her plea was disregarded. Despite living above the bar, the Third Respondent declined to assist her, even though the Claimant had explained how busy it was. After 5 PM, hunger made the Claimant feel nauseous and lightheaded. Using her discretion, the Claimant went across the street to buy a sandwich before she entrusted a loyal customer to oversee the bar during her brief absence. Returning promptly, she ate her sandwich. Upon her return, the Third Respondent berated her for leaving the bar unattended. The Third Respondent refused to engage in any meaningful discussion and accused the Claimant of having "attitude problems." The Claimant asserts that she achieved record-breaking revenue on this particular shift but that the Third Respondent refused to acknowledge this. At the end of her shift, the Claimant approached the Third Respondent to ask if he could help her with cleaning the glasses. He refused (despite having promised the Claimant that he would help with the glasses). Exhausted and emotional, the Claimant broke down in tears.9.2 On 9th September 2022, the Claimant received a formal written warning as a result of this incident and due to the way she allegedly spoke to colleagues by “using disrespectful language”. The Second and Third Respondents cite as an example of this the Claimant’s “threat” to walk out during her shift on the 3rd September 2022.9.3 On the 9th September 2022, the Claimant raised a formal grievance in writing. Within her grievance, the Claimant raised health and safety concerns stating that she had “been starving during shifts without having another colleague/manager to end to the store” and “working alone in a busy shift without a break”.9.4 On 12th September 2022, the Second Respondent asked the Claimant to attend a meeting giving her only 24 hours' notice. The Claimant protested in respect of the short notice. The Second Respondent replied by saying “very well we will send you a letter instead”. The Claimant was then sent a letter confirming she was being dismissed. The Respondents did not formally address or respond to the Claimant’s grievance, but they cited the “tone” and “nature” of the Claimant’s grievance as a basis upon which to justify her dismissal, stating that her complaints “speak to the crux of the problem”.9.5 A meeting was held on the 13th September 2022 at which the Respondents insisted the Claimant should apologise to them. The Claimant attempted to discuss the contents of her grievance letter. The Third Respondent responded by saying something like “so the dismissal letter still stans then” and the Second Respondent nodded. 10. For the purposes of s.100(1)(c) ERA 1996, the Claimant avers that she brought to the Respondents attention circumstances connected with her place of work which she reasonably believed were harmful or potentially harmful to her health and/or safety. She avers that directly off the back of raising such concerns, she was dismissed from her employment. 11. Following the Claimant’s dismissal, she experienced anxiety, depression, insomnia and hair loss, for which she has been receiving medical treatment.
Law
[27]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.[28]Neither party directed me to any case law.
Conclusions
[29]I have not repeated the submissions here, but they were considered in full. It is important to note that the Claimant did not give any specific detail on prejudice and hardship.[30]I have reminded myself that is not necessary to use Selkent factors as a prescriptive checklist, but have considered what I deemed to be relevant factors in this case.[31]As is clearly set out in the case law, the focus of my consideration must be on the hardship and prejudice to the parties. I have also taken into account other factors that are relevant including timing and manner of the application, applicability of time limits, nature of amendment.[32]For brevity, before setting out my decision on each application I have set out some general observations below.[33]The ET1 contains only four paragraphs of text, but it does identify some factual matters at box 8.2. Within box 8.1, the Claimant ticks the boxes for unfair dismissal, age, race and sex discrimination, holiday pay, arrears of pay and other payments. She also ticked the box indicted she was making another type of claim and set out reference to pension contributions.[34]I considered that the ET1 was 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. The Claimant was not professionally represented at the point the claim was submitted, and was assisted by her boyfriend. She was however legally represented in April 2024, and a solicitor assisted/prepared the document which forms the basis of the Claimant’s Application to Amend. In reaching my conclusions in relation to each application I have kept in mind the need to consider the ET1 as a whole.[35]Within her Application to Amend the Claimant states that the new claims she is seeking to bring were not included in her ET1 as she was unsuccessful in obtaining free legal advice and her ability to complete the ET1 was “hampered by language barriers, insufficient funds for legal consultation and representation, and my desire to suppress traumatic memories by consuming substantial amounts of alcohol.”[36]The Claimant stated that she had poor mental health when she was dismissed. The Application to Amend makes referred to psychiatrist support with her alcohol problems but I have not been referred to any medical evidence.[37]The final hearing in this claim is now listed for 5 days commencing on Monday 9 December 2024. There have been case management orders made for exchange of documents and completion of witness statements. However, no progress has been made by either party in this respect. The Respondents explained that it has not been clear what the issues are and what they need to defend. Although broad headlines of legal complaints have been discussed since the first case management preliminary hearing, there is not a list of issues. At the start of the hearing today, the Claimant confirmed the “original” allegations with reference to the application to amend document. They are set out above, but this does not constitute a list of issues, and as noted, the legal basis of the pension contribution claim is not clear.[38]As summarised in the background section above, I have kept in mind that the Claimant was ordered to provide further information, in a specific form, by 27 February 2024. She did not comply with this order. However, the Claimant did instruct solicitors on 15 April 2024 the Claimant provided the Response to the Tribunal’s Order for Further Information, which was prepared by Arlingsworth Solicitors. This does not fully comply with the orders made by EJ Tsamados. The document is 11 pages long, and as identified at the second case management preliminary hearing, only 5 paragraphs were identified as matters that had been referenced in the ET1.[39]The Claimant submitted a written application to amend on 26 April 2024. This runs to 12 pages, and is near identical to the Response to the Tribunal’s Order for Further Information about the Claimant’s claims. The difference is that paragraphs 1.1, 1.2. 5.1, 12 and 13 had been removed from the Application to Amend.[40]The application contains a significant number of new factual matters that are not mentioned in the ET1. Further, as discussed at the outset of the hearing today, and as noted by the Respondents in submissions, there is still a lack of clarity in relation to some of the amendments sought, for example, there is no identification of dates in relation to some allegations. I spent over two hours trying to ensure that all parties understand the basis of the application to amend, namely, what legal claims were being pursued in relation to each paragraph of narrative, as the headings used were not clear.[41]The ET1 was submitted on 27 October 2022. Accordingly, new complaints within the Application to Amend of 26 April 2024 are now significantly out of time. However, applications which are out of time can be permitted subject to consideration of time limits at a final hearing.[42]I have also kept in mind that the merits of an allegation can be a factor for consideration in some cases, but the overriding test is balance of prejudice. The merits of a claim may feed into an assessment if there has been a proper and fair assessment that there are no reasonable prospects of success. I have not made such an assessment in relation to any of the allegations as I did not have sufficient information to do so, but in relation to some of the allegations, I have noted where, on the pleaded case, the link to the protected characteristic/s is difficult to see. However, if an application was to continue, this would be subject to determination after consideration of evidence.[43]I have set out below my decision in relation to each application using the paragraph number in the Application to Amend. Sexual Harassment (s26(2) Equality Act 2010) (See para 8.2 of GOC) page 9 of bundle) Application 1.3[44]As set out above, the Application to Amend, under a heading “Sexual Harassment (s.26(2) Equality Act 2010) (See para 8.2 of GOC) contains a further allegation, numbered 1.3, in relation to the Second Respondent. The Claimant already has two sexual harassment complaints continuing to a final hearing.[45]Application 1.3 relates to comments allegedly made in October 2021 regarding a cat. The ET1 contains no reference at all to a conversation about cats. However, it does refer to the Second Respondent insinuating a sexual relationship between them. I do not see how the comments made regarding the cat can be considered to be an insinuation a sexual relationship and therefore consider this to be a new factual allegation.[46]On the face of it this allegation is well out of time, it would be out of time at the date of submission of the ET1 on 27 October 2022, and taking an application date of 26 April 2024, is some 2.5 years out of time. However, I note the two original allegations of sexual harassment also appear, on the face it, to be out of time, and therefore the Tribunal considering the final hearing, or any further preliminary hearing, will need to make a determination on time limits.[47]The Second Respondent is already needing to cast his mind back to September 2021 to deal with other allegations of sexual harassment. The parties have not yet prepared witness statements. Although the Respondents have not had clarity or notice of this specific allegation, the ET1 does give notice of concerns about the Second Respondent’s behavior towards the Claimant. However, this allegation is very specific, there is no clear reason why this detail wasn’t included in the ET1.[48]I do not consider this allegation is likely to have many, or indeed any,[49]If refused, the Claimant would not be able to pursue this particular allegation, but she already has complaints of sexual harassment and therefore refusal would not prevent her from pursuing a complaint of sexual harassment.[50]On balance, noting the absolute lack of reference to a now very historical conversation in the ET1 and the fact the allegation is, on the face of it out of time, I consider more prejudice would be caused to the Respondents by having to address an entirely new factual matter. The prejudice to the Claimant is less, as she is not prevented from pursuing a sexual harassment complaint.[51]Application 1.3 is refused. Harassment (s. 26(1) and (2) Equality Act 2010) and Victimisation (s.27 Equality Act 2010)[52]As set out above, during the hearing I explained that the heading did not clearly identify the legal basis of the allegations pursued at paragraphs 3.1 to 3.9 and the Claimant clarified the legal allegations she sought to pursue as set out above.[53]As set out above, the Claimant provided some additional information regarding the events at the hearing today. She said this allegation was harassment related to sex and/or race and/or age.[54]There is no reference to this allegation at all in the ET1. There is reference to a former worker called Hux in the ET1, but that is specifically in relation to a comment regarding Chinese commodities. Although at the hearing today the Respondents said one of the workers from the period of the Claimant’s employment is no longer employed, it did not specify who, and I do not know if Hux remains employed or not, but noting the ET1 says “former employee” it appears Hux is no longer an employee of the First Respondent.[55]The Claimant said at the hearing that the comments were related to sex and/or race and/or age. There is no explanation in any of the documents as to why she thinks that and comments were related to age or race. The Claimant has not provided a specific date for either allegation, but references Halloween and a time when she recalls wearing a particular outfit.[56]The Respondents had no notice of this allegation, it not only involves the Second Respondent but also a former employee. If permitted the allegation would require the Respondents to try and recall discissions from 2.5 years ago which, in my view. Further, the alleged comments remain vague. Again, there is no clear reason as to why this allegation is not set out in the ET1, particularly noting that there incidents involving the Second Respondent and Hux detailed.[57]I do not consider this allegation is likely to have many, or indeed any,[58]The Claimant is already bringing a race harassment complaint.[59]On balance, noting the absolute lack of reference to a now very historical conversation in the ET1 and the fact the allegation is, on the face of it out of time, I consider more prejudice would be caused to the Respondents by having to address an entirely new and vague factual matter. The prejudice to the Claimant is less, as she is not prevented from pursuing a race harassment complaint.[60]Application 3.2 is refused.[61]This is pursued as a harassment related to race complaint. There is no reference to this allegation at all in the ET1. There is no reference to a worker called Zak in the ET1. It is not clear if Zak remains employed or not.[62]The allegation is, on the face of it considerably out of time as it relates to events in December 2021.[63]On the face of the allegation, it is difficult to see any link to race, although as set out above, I have not made any decisions on merit.[64]I do not consider this allegation is likely to have many, or indeed any,[65]The Claimant is already bringing a race harassment complaint.[66]On balance, as set out above, there is no reference to a now very historical conversation in the ET1. I consider more prejudice would be caused to the Respondents by having to address an entirely new matter. The prejudice to the Claimant is less, as she is not prevented from pursuing a race harassment complaint.[67]Application 3.3 is refused.[68]At the hearing today the Claimant stated she wished to pursue this allegation as direct sex discrimination complaint. The reference to comparators, as co-workers is not clear. It is understood there were both male and female staff, if the allegation was to continue the Claimant would need to further specify the comparators relied upon.[69]This allegation remains unclear, both in terms of content and timing. One example is given but the vague wording references arbitrary an unreasonable demands and therefore the precise nature of the allegation remains unclear. Further, even if the allegation took place at the end of the Claimant’s employment, it would still now be considerably out of time.[70]If permitted, the Respondents would be required to cast their mind back over the whole period of employment to consider any requests made for the Claimant to change her cocktail recipes. In terms of the prejudice on the Claimant, if refused, will not be able to continue with this allegation, but she has other complaints and claim in the Tribunal.[71]This does not appear to be an allegation that would involve additional[72]On balance, I consider more prejudice would be caused to the Respondent[73]Application 3.4 is refused.[74]At the hearing today the Claimant said this allegation was harassment related to sex and/or race.[75]There is no mention of this in the ET1. The timing of the alleged incident has not been set out.[76]Again, if permitted the Respondents would be required to cast their mind back over the whole period of employment to consider if they can recall an unspecified incident in terms of date and a customer. I also note that, as pleaded, it is difficult to see the link to sex and/or race on the pleaded case.[77]On balance, weighing all the above together, and for the same reasons as set out in the other applications, I consider more prejudice would be caused to the Respondent should this application be permitted.[78]Application 3.5 is refused.[79]At the hearing today the Claimant said this allegation was harassment related to sex and/or race.[80]There is no reference to this allegation in the ET1, specifically there is no reference to Maria.[81]It is not clear if Maria is still employed by the First Respondent or not. The allegation is vague, and refers to colleagues but only gives one example in relation to Maria in June 2022. It if difficult to see how the allegation, in general and in relation to Maria, relates to sex and/or race.[82]If permitted, the Respondents would need to obtain evidence in relation to what happened between Maria and the Claimant in regard to an alleged incident that took place over 2 years ago and is on the face of it out of time. The wide nature of the allegation also means the Respondents have no clarity on any other incidents that the Claimant may later seek to raise, which it may not be ready to deal with at a final hearing.[83]In terms of the prejudice on the Claimant, if refused, will not be able to continue with this allegation, but she has other complaints.[84]This does not appear to be an allegation that would involve additional[85]On balance, I consider more prejudice would be caused to the Respondent[86]Application 3.8 refused.[87]At the hearing today the Claimant said this allegation was harassment related to race.[88]The allegation is generally vague, it says the Second Respondent regularly belittled the Claimant but it does not set out any dates and the alleged incident but she provides an example about a trip to the distillery. There is no date provided for the example given. It is difficult to see how the allegation relates to race.[89]The Claimant, in the ET1, has specified allegation of sexual harassment involving the Second Respondent and an allegation of harassment related to race, but there is no reference to allegations of belittling.[90]This does not appear to be an allegation that would involve additional[91]In terms of prejudice, if permitted, the Respondents would be required to cast their mind back over the whole period of employment to consider an allegation that the Second Respondent belittled the Claimant regularly. The wide nature of the allegation also means the Respondents have no clarity on any other incidents that the Claimant may later seek to raise, which it may not be ready to deal with at a final hearing.[92]In terms of the prejudice on the Claimant, if refused, will not be able to continue with this allegation, but she has other complaints race harassment.[93]On balance, I consider more prejudice would be caused to the Respondents[94]Application 3.9 refused. Race discrimination (s.9 Equality Act 2010) (See paragraph 8.2, GOC, page 9 of the bundle)[95]At the hearing today the Claimant stated this was an allegation of[96]There is no reference to this allegation in the ET1. As noted above, the ET1 does contain an allegation of harassment related to race regarding Hux. As set out above, it appears that Hux may no longer be employed by the First Respondent.[97]The allegation is specific.[98]On the face of it this allegation is well out of time, it would be out of time at the date of submission of the ET1 on 27 October 2022, and taking an application date of 26 April 2024, is almost three years out of time. However, I note the original allegation of race harassment appears, on the face it, to be out of time, and therefore the Tribunal considering the final hearing will need to make a determination on time limits.[99]The Respondents are already needing to deal with other allegation from a similar period, but they have been on notice of those. The parties have not yet prepared witness statements. Although the Respondents have not had clarity or notice of this specific allegation, the ET1 does give notice of one concern about Hux’s behavior towards the Claimant.[100]I do not consider this allegation is likely to have many, or indeed any,[101]The Tribunal is already considering an allegation of race harassment, I do not consider that the allegation continuing to a final hearing would add significant time and given the five day listing I do not think any additional hearing time would be required.[102]If refused, the Claimant would not be able to pursue the allegation, but she has set out concerns about Hux’s conduct towards her in relation to another matter the ET1.[103]On balance, I do consider the balance of prejudice to fall harder on the Claimant in this respect. The Respondents already need to deal with a now historical race harassment allegation regarding Hux, that appear to be around a similar time as this allegation. The allegation is specific and should therefore mean that the enquiries necessary are limited. If the application is refused, the Claimant may be prevented from the full context of dealings with Hux being considered.[104]Application 5.2 permitted, subject to consideration of time limits at the final hearing.[105]At the hearing today the Claimant stated this was an allegation of[106]The allegation is generally vague, it says the Claimant “felt as if she was treated differently and “othered” on account of her race. She was excluded from work events.” She provides one example about an event in November 2021 that she says she was not permitted to attend. She does not set out any dates or persons allegedly involved.[107]This allegation is not included in the ET1, but there is reference to the Claimant saying she was isolated.[108]In terms of prejudice, if permitted, the Respondents would be required to cast their mind back over the whole period of employment to consider an allegation that the Claimant was excluded. Although the Respondents may be able to deal with the incident allegedly in November 2021, the wide nature of the allegation also means the respondents have no clarity on any other incidents or the persons involved that the Claimant may later seek to raise, which it may not be ready to deal with at a final hearing.[109]In terms of the prejudice on the Claimant, if refused, she will not be able to continue with this allegation, but she has other complaints of race harassment.[110]On balance, based on the allegation as presented, I consider that more prejudice would be caused to the Respondent if the application was permitted.[111]Application 5.3 refused.[112]At the hearing today the Claimant stated this was an allegation of[113]The allegation involves vague references to the Third Respondent and cites several factual allegations but provides no dates or context of the alleged matters, all of which would now be out of time.[114]The ET1 does make reference to the Third Respondents response, as set out below, however it does not mention any of the specific allegations. The wording “Is this a cultural thing?” is set out in the application to amend but in context of the Claimant mentioning herself and her boyfriend. The ET1 extract below makes reference to the same words, but in context of the Claimant raising concerns to the Third Respondent.[115]I” have raised my concerns with Sebastian Woolf and hoped him to fully address my concerns on numerous occasions, whereas Sebastian Woolf shirked his responsibilities as the company director and shifted the blame onto me by saying "I really want staff to get along, is this a culture thing that you always accuse and compete with your colleagues?"[116]The Third Respondent is clearly a party to the claim, however, the matters referenced contain no detail on dates and/or frequency. Accordingly, the Third Respondent would be required to cast his mind back to the whole of the Claimant’s employment to see if he can recall and address the matters.[117]On balance, based on the allegation as presented, I consider that more prejudice would be caused to the Respondent if the application was permitted. The Claimant has other race harassment complaints.[118]Application 5.4 refused.[119]At the hearing today the Claimant stated this was an allegation of[120]The allegation is generally vague, and makes reference to conduct of Zack. She provides one example about an event when Zack is alleged to have asked two black women to leave the bar. She has not provided a date for this allegation or any other specific detail.[121]This allegation is not included in the ET1. Indeed, there is no reference to Zack at all in the ET1 and no reference to any potential racist treatment of customers.[122]It is not clear if Zack remains employed or not.[123]It seems likely that there would be little, if any documents, associated with this allegation.[124]In terms of prejudice, if permitted, the Respondents would be and/or willing to give evidence, but further witness evidence will be required enquiries with Zack, the Respondents may be able to deal with the one incident cited, but the wide nature of the allegation also means the Respondents have no clarity on any other incidents potentially involving Zack that the Claimant may later seek to raise, which it may not be ready to deal with at a final hearing.[125]In terms of the prejudice on the Claimant, if refused, she will not be able to continue with this allegation, but she has other complaints.[126]On balance, based on the allegation as presented, I consider that more prejudice would be caused to the Respondent if the application was permitted.[127]Application 5.5 refused.[128]At the hearing today the Claimant stated this was an allegation of[129]The allegation is generally vague, and makes reference to conduct of Zack. The allegations are generic in nature and do not provide any dates.[130]For the same reasons as set out in relation to application 5.5 above, the application is refused.[131]Application 5.6 refused. At the hearing today the Claimant stated this was an allegation of[132]The allegation is generally vague, and makes reference to conduct of Zack. The allegations are generic in nature and do not provide any dates.[133]For the same reasons as set out in relation to applications 5.5 and 5.6 above, the application is refused.[134]Application 5.7 refused. Age discrimination (s.5 Equality Act 2010) (See paragraph 8.1, ET1 page 6 of the bundle)[135]As set out above, this was broken into two allegations, I have renumbered them 6.1A and 6.1B for ease of reference. Application 6.1A[136]At the hearing today the Claimant stated this was an allegation of direct age discrimination.[137]The allegation regards the alleged conduct of Zack and the Claimant sets out two incidents, and provided dates for the incidents in the hearing today.[138]This allegation is not included in the ET1. Indeed, there is no reference to Zack at all in the ET1 and no reference to any matters related to ae.[139]It is not clear if Zack remains employed or not.[140]It seems likely that there would be little, if any documents, associated with this allegation.[141]In terms of prejudice, if permitted, the Respondents would be and/or willing to give evidence, but further witness evidence will be required enquiries with Zack, the Respondents may or may not be able to deal with the incidents cited. If permitted, this would introduce an entirely new head of complaint that would need to be addressed in evidence and at the hearing, and would therefore result in additional time being spent in preparation for the hearing and at the hearing.[142]In terms of the prejudice on the Claimant, if refused, she will not be able to continue with this allegation, this is the only allegation of direct age discrimination.[143]On balance, based on the allegation as presented, I consider that more prejudice would be caused to the Respondent if an application for an entirely new legal complaint that is out of time was permitted. The ET1 makes no mention of age at all, there is just a tick box. There is no mention of Zack.[144]Application 6.1A refused. Application 6.1B[145]At the hearing the Claimant said this allegation was one of victimisation.[146]This is an entirely new legal complaint. The protected act within the application, as clarified orally today, was allegedly made to the Second Respondent in late September 2021. The alleged detriment is that the Second Respondent covertly arranged for Zack to replace the Claimant.[147]There is no reference to either the alleged protected act or the detriment in the ET1.[148]If permitted, in terms of prejudice, the Second Respondent would need to cast his mind back to conversations now 3 years ago, that he has not been on notice of, and enquiries and evidence may also be need from Zack.[149]If permitted, this would introduce an entirely new head of complaint that would need to be addressed in evidence and at the hearing, and would therefore result in additional time being spent in preparation for the hearing and at the hearing by the Respondent. The allegation is on the face of it out of time, although the date of the alleged detriment is not clear, her employment ended in September 2022.[150]In terms of the prejudice on the Claimant, if refused, she will not be able to continue with this allegation, this is the only allegation of victimisation.[151]I have carefully considered the impact of allowing and not allowing this application, noting it is the only allegation of victimisation. However, I have concluded that more prejudice is caused to the Respondent by being forced to deal with an allegation that is not contained anywhere in the ET1 and appears to be out of time.[152]Application 6.1B refused. Application 6.2[153]At the hearing today the Claimant said this was an allegation of age related harassment.[154]It appears to refence a message and a former employee, Lee.[155]This is an entirely new allegation, there is no mention of it or Lee anywhere in the ET1. However, apart from the lack of a date, the allegation is clear.[156]If permitted, this would introduce an entirely new area of complaint that would need to be addressed in evidence and at the hearing, and would therefore result in additional time being spent in preparation for the hearing and at the hearing by the Respondent. The allegation is on the face of it out of time, although the date of the alleged detriment is not clear, noting her employment ended in September 2022 it is, on the face of it, out of time.[157]In terms of prejudice, if permitted, the Respondents would be required to make enquiries with Lee who may or may not be available and/or willing to give evidence, but further witness evidence will be required to deal with this allegation if permitted. Depending on the outcome of enquiries with Zack, the Respondents may or may not be able to deal with the incident cited. If permitted, this would introduce an entirely new factual complaint (there are other race harassment complaints), that would need to be addressed in evidence and at the hearing, and would therefore result in additional time being spent in preparation for the hearing and at the hearing.[158]In terms of the prejudice on the Claimant, if refused, she will not be able to continue with this allegation, this is the only allegation of stand-alone age related harassment.[159]I have carefully considered the impact of allowing and not allowing this application, noting it is the only allegation of standalone age harassment. However, I have concluded that more prejudice is caused to the Respondent by being forced to deal with an allegation that is not contained anywhere in the ET1 and involves a former employee and appears to be out of time.[160]Application 6.2 refused. Sex discrimination (s.13 Equality Act 2010) Application 7.1[161]During the hearing the Claimant said that this was an allegation of direct sex discrimination, she also stated it related to May to June 2022. There is no reference to the allegation at all in the ET1.[162]The allegation is specific, and the Third Respondent is a party to the claim. However, the allegation is almost two years out of time, and will require the Third Respondent to cast his mind back to an alleged conversation that took place over two years ago.[163]I do not consider there will be many, or possibly any, documents dealing with this matter and therefore there will be no significant impact on disclosure.[164]If permitted, this would introduce an entirely new area of complaint that would need to be addressed in evidence and at the hearing, and would therefore result in additional time being spent in preparation for the hearing and at the hearing by the Respondents. The allegation is on the face of it out of time[165]In terms of prejudice, if permitted, the allegation would need to be addressed in evidence and at the hearing, and would therefore result in additional time being spent in preparation for the hearing and at the hearing. Although the Third Respondent would need to cast his mind back, there does not seem to be the need for more onerous enquiries.[166]In terms of the prejudice on the Claimant, if refused, she will not be able to continue with this allegation, this is the only allegation of direct sex discrimination (noting application 3.4 has been refused).[167]I have carefully considered the impact of allowing and not allowing this application, noting it is the only allegation of standalone sex discrimination. However, I have concluded that more prejudice is caused to the Respondent by being forced to deal with an allegation that is not contained anywhere in the ET1 and appears to be out of time. I have noted that the Claimant was able to record this in specific detail, and there is no real explanation for why this is not in the ET1 or raised earlier.[168]Application7.1 refused. Application7.2[169]At the hearing the Claimant said she was not pursuing this as direct sex discrimination but as harassment related to sex.[170]The allegation is generally vague, and makes reference to derogatory comments about women in general by the Third Respondent but she does not set out the alleged comments or when she says they were made.[171]This allegation is not included in the ET1.[172]It the allegation is allowed it will require the Third Respondent to try and cast his mind back over all conversations with the Claimant, all which now out of time. The Respondents are still not clear on the allegation it needs to answer.[173]Given the lack of clarity, I consider more prejudice would be causes to the Respondent by permitting a vague and out of time allegation to continue. The Claimant has other harassment complaints.[174]Application 7.2 refused. Application 7.3[175]At the hearing the Claimant said she was not pursuing this as direct sex discrimination but as harassment related to sex.[176]The allegation makes reference to derogatory comments about women allegedly made by Zack, the Claimant sets out two comments in quotes, but does not specify the alleged dates, but given the end of employment and the date of the application it is significantly out of time.[177]This allegation is not included in the ET1, the comments in relation to Zack, as set out in other conclusions above , apply here.[178]In terms of prejudice, if permitted, the Respondents would be and/or willing to give evidence, and further witness evidence will be required enquiries with Zack, the Respondents may or may not be able to deal with the incidents cited. If permitted, this would introduce an entirely new head of complaint that would need to be addressed in evidence and at the hearing, and would therefore result in additional time being spent in preparation for the hearing and at the hearing.[179]In terms of the prejudice on the Claimant, if refused, she will not be able to continue with this allegation, but has other harassment complaints.[180]On balance, based on the allegation as presented, I consider that more prejudice would be caused to the Respondents if an application for an entirely new factual complaint that is out of time was permitted where there is no reference to the alleged harasser in the ET1.[181]Application 7.3 refused. Detriment/adverse working conditions Application 8.1[182]The Claimant appears to be asserting that there has been a breach of The Working Time Regulations in relation to not being able to take a rest break.[183]The Claimant uses the word “regularly” and does not specify the dates on which she says she was not able to take a break.[184]There is no reference to this allegation at all in the ET1. The allegation remains unspecified. Both the Respondents and the Tribunal do not know the alleged dates on which the Claimant says she was not allowed a rest break, and therefore at a significant difficulty in trying to defend such an allegation.[185]The allegation, is on the face of it out of time. It is an entirely new factual and legal allegation. On balance, I consider more prejudice would be caused to the Respondents if an application for an entirely new factual and legal complaint that remains unclear, is out of time and where there is no reference at all in the ET1.[186]Application8.1 is refused. Application8.2[187]This appears to be an allegation for a breach of the Health and Safety at Work Act 1974.[188]There is no reference at all to this allegation in the ET1, and it is also unspecified “often required”.[189]For the same reasons as set out in relation to application8.1 above, application8.2 is refused. Further, the Claimant has not set out why a claim pursued under section 2 of the Health and Safety at Work Act 1974 can be heard in the Employment Tribunal.[190]Application 8.2 is refused. Application 8.3[191]At the hearing today the Claimant said she was pursuing this as a direct race discrimination complaint.[192]This allegation is not mentioned at all in the ET1. It does specify the comments allegedly made to her by the Second Respondent and the date. This is now, on the face of it, out of time. It is difficult to see how, on the Claimant’s own case, the comments regarding taking holiday are directly because of race but determination requires consideration of evidence.[193]If allowed, this would require the Second Respondent to cast his mind back to comments allegedly made in August 2022, now two years ago, where there has been no notice of such a matter. On balance, I consider more prejudice would be caused to the Respondents in seeking to try and defend a historical allegation of this nature.[194]Application 8.3 refused. Unfair dismissal[195]The ET1 does reference the Claimant’s dismissal. It states: “Sebastian Woolf and Paul Newton decided to dismiss after I raised a formal grievance and demanded my workplace pension contributions, pay raise and holiday pay.” The box for unfair dismissal is also ticked.[196]The Response to the Tribunal’s Order for Further Information and the Application to Amend sets out the Claimant seeks to bring an automatically unfair dismissal complaint under section 100(1)(c ) of the Employment Rights Act 1996. It sets out that she raised a formal grievance on 9 September 2022 raising health and safety concerns.[197]I consider the information provided in these two documents to be clarification. It is possible to identify, from the ET1, that the Claimant was seeking to bring an unfair dismissal complaint, and that she linked her dismissal to her grievance. On balance, I consider that further information has been provided, and the Claimant has clarified a complaint that was already contained within the ET1. She is not seeking to bring a new complaint.[198]The complaint of automatically unfair dismissal will be considered at a final hearing.