Miss M Onu v The Secretary of State for Work and Pensions: 2304622/2024
EMPLOYMENT TRIBUNALS
Case No 2304622/2024, 2301135/2022
Between
Miss M OnuClaimantThe Secretary of State for Work and PensionsRespondent
Before
Employment Judge RamsdenDate 5 July 2024
JUDGMENT
[1]The Claimant’s application to for interim relief is refused.
REASONS
[2]The Claimant began employment with the Respondent on 13 March 2017, and worked as a Work Coach at Job Centres until her employment was terminated by the Respondent on 7 May 2024.[3]Before presenting this claim the Claimant brought a different claim against the Respondent (with case number 2301135/2022) on 31 March 2022, for disability discrimination (she suffers from narcolepsy), arrears of pay and reimbursement of certain expenses (the latter complaint was dismissed given the Claimant’s then-continuing employment). On 18 June 2024 the Claimant withdrew that case 1 of 9 upon reaching COT3 settlement terms with the Respondent. Both parties agree that settlement of that case does not affect this one.[4]Following the Claimant’s dismissal on 7 May 2024, she emailed the Tribunal on 14 May 2024 attaching a document entitled “Interim Relief Application”. The Claimant subsequently submitted an ET1 Claim Form via the Tribunal’s online portal on 31 May 2024, referring to the fact that she had already made an application on 14 May 2024. The substance of the email attachment and the ET1 particulars (the attached interim relief application) are confirmed by the Claimant to be the same document.[5]In it she asserts that she was automatically unfairly dismissed by the Respondent for the reason that she made protected disclosures in July 2023 (in contravention of section 103A of the Employment Rights Act 1996 (the 1996 Act)).[6]The Claimant says that those disclosures concerned health and safety risks posed by the location of work coaching appointments for clients of Peckham Job Centre who are aged 50 or over (this group comprised the clients the Claimant worked with). Those appointments were conducted in an area on the first floor of the Peckham Job Centre sited in an extension to the original building accessed via a bridge, which is itself accessible by means of the stairs or a single lift. The Claimant says that many of her clients have mobility and other health issues, and she says that raised with the Respondent that there was a real risk that many of them ‘would not make it out in time’ from that area in the event of a fire.[7]The Claimant says that she made these disclosures: a) To the Customer Service Lead, Ms Fihosy, at the muster point after a fire drill in July 2023; b) Later that dame day to her line manager, Mr Ramjuan, in a team huddle where others were present; and c) “Some days later”, but still in July 2023, to Mr Payne, the Respondent’s District Manager.[8]The Respondent resists the Claimant’s application for interim relief. It says that the Claimant was dismissed for conduct unrelated to the matters about which she avers she made a protected disclosure. Rather, the Respondent says that she was summarily dismissed for: a) Taking a laptop belonging to the Respondent out of the country to Spain without the Respondent’s permission (this allegation was admitted by the Claimant); b) Contacting a LBC Radio ‘phone-in’ in which she disclosed that she is a Civil Servant, mentioned her Customer Service Leader and suggested that her line manager discriminated against her (this allegation was also admitted by the Claimant); and 2 of 9 c) Recording conversations with her line manager without his permission for two years (the Claimant admitted recording conversations with her line manager, but said she did so for a shorter period of around four or five months).[9]The purpose of this hearing is to hear and determine the Claimant’s application for interim relief.
The hearing
[10]The Respondent was represented in the hearing by Mr Mallon. The Claimant represented herself.[11]The Respondent prepared a hearing bundle of 151 pages in length, which included written witness statements from five witnesses on its behalf, and a skeleton argument. The Claimant had not prepared a witness statement, but confirmed that she wished her application to stand as her evidence.[12]Each of the Respondent and the Claimant made submissions in support of their respective positions.
Law
[13]Interim relief is an emergency interlocutory remedy the effect of which is to maintain the status quo as regards employment – i.e., to order that the claimant continues in the respondent’s employment until the final hearing to determine the merits of the claimant’s underlying unfair dismissal claim. It is only available in certain prescribed circumstances, set out in section 128 of the 1996 Act: “(1) An employee who presents a complaint to an employment tribunal that he has been unfairly dismissed and— (a) that the reason (or if more than one the principal reason) for the dismissal is one of those specified in— (i) section … 103A, … may apply to the tribunal for interim relief. (2) The tribunal shall not entertain an application for interim relief unless it is presented to the tribunal before the end of the period of seven days immediately following the effective date of termination (whether before, on or after that date)…”.[14]Once the claimant shows that their application is within the four corners of section 128, it is for the tribunal to determine their application by either granting or dismissing it.[15]While not binding on this tribunal, it is noted that the interim relief application in the case of Astle v Travis Perkins PLC ET Case No. 2403488/2020 failed when it came before EJ Franey in the Manchester Employment Tribunal, because that 3 of 9 Tribunal observed that section 128(2) does not give the tribunal power to extend the seven day time limit.[16]The burden of proof sits with the applicant, i.e., the claimant seeking interim relief. Section 129(1) sets out the relevant test to be applied by the tribunal considering whether to grant interim relief, which is whether: “it appears to the tribunal that it is likely that on determining the complaint to which the application relates that the tribunal will find [that complaint wellfounded]” (my emphasis).[17]The tribunal is required, on the basis of the material before it, to make a summary assessment of the chances of the claimant succeeding (Parsons v Airplus UKEAT/0023/16). It is not the role of the tribunal to decide the issue as if it were a final issue (Parkins v Sodexo Ltd [2002] IRLR 109).[18]The meaning of the word “likely” in section 129(1) was considered in Taplin v C Shippam Ltd [1978] IRLR 450, where the EAT found that it required the applicant to establish: “that he has a ‘pretty good’ chance of succeeding in the final application to the Tribunal. In order to succeed… an applicant must achieve a higher degree of certainty in the mind of the Tribunal than that of showing that he just had a ‘reasonable’ prospect of success”, and noted that it is “an exceptional form of relief”.[19]The EAT in Ministry of Justice v Sarfraz [2011] IRLR 562 held that the word “likely” does not mean “more likely than not” (that is, at least 51% probability), but rather “connotes a significantly higher degree of likelihood”.[20]This was characterised in the EAT decision of Dandpat v University of Bath UKEAT/0408/09 as a “comparatively high” test, set as such for “good reasons of policy” given that, “If relief is granted the Respondent is irretrievably prejudiced because he is obliged to treat the contract as continuing, and pay the Claimant, until the conclusion of proceedings: that is not [a] consequence that should be imposed lightly”.[21]The same “likely to succeed” test has to be applied to all aspects of the complaint (of a kind listed in section 128(1)) that might be in issue (Simply Smile Manor House Ltd v Ter-Berg [2020] ICR 570). As summarised in Sarfraz, where a claimant says they were unfairly dismissed for making a protected disclosure and seeks interim relief, the judge hearing that application has to decide whether it is likely that the tribunal at the final hearing would find five things: a) that the claimant had made a disclosure to his employer; b) that they believed that that disclosure tended to show one or more of the things itemised at (a) to (f) under section 43B(1) of the 1996 Act; c) that that belief was reasonable; 4 of 9 d) that the disclosure was made in good faith; and e) that the disclosure was the principal reason for their dismissal.[22]Rule 8(1) of the Employment Tribunals Rules of Procedure 2013 (the ET Rules) states that: “A claim shall be started by presenting a completed claim form (using a prescribed form) in accordance with any practice direction made under regulation 11 which supplements this rule.” Application to the claims here[23]Taking the list enumerated in Sarfraz and expanding it to include the precursor questions of whether the conditions to make an application for interim relief are satisfied (and satisfied in fact – these are not questions of likelihood), the tribunal needs to address seven questions: a) Did the Claimant present a complaint to the employment tribunal that she has been unfairly dismissed, and the reason is one of the reasons specified in section 128(1) of the 1996 Act? b) Did the Claimant make an application in the time prescribed by section 128 of the 1996 Act? c) Is it likely that the Claimant will persuade the Tribunal at the final hearing that she had made a disclosure to her employer? d) Is it likely that the Claimant will persuade the Tribunal at the final hearing that she believed that that disclosure tended to show one or more of the things itemised at (a) to (f) of section 43B(1) of the 1996 Act? e) Is it likely that the Claimant will persuade the Tribunal at the final hearing that that belief was reasonable? f) Is it likely that the Claimant will persuade the Tribunal at the final hearing that she made the disclosure in good faith? g) Is it likely that the Claimant will persuade the Tribunal at the final hearing that the disclosure was the reason or the principal reason for her dismissal? The First Question: Did the Claimant present a complaint to the employment tribunal that she has been unfairly dismissed, and the reason is one of the reasons specified in section 128(1) of the 1996 Act?[24]Yes: it is not disputed that the Claimant presented (on 31 May 2024) a complaint to the employment tribunal that she has been unfairly dismissed for the reason or principal reason that she made a protected disclosure. 5 of 9 The Second Question: Did the Claimant make an application in the time prescribed by section 128 of the 1996 Act?[25]This is a point of contention between the parties. The Claimant says that she did, by email on 14 May 2024. The Respondent agrees that the email was ‘an application’, but avers that: a) The terms of section 128 provide that it is a prerequisite to the making of an application for these purposes that the applicant has also made a complaint of unfair dismissal. Here, when purporting to make her application by email on 14 May 2024, the Claimant had not yet made an unfair dismissal complaint, as Rule 8(1) requires the presentation of a claim (which contains the complaints) to be by completion of a claim form, which the Claimant did not do until 31 May 2024. b) As the Claimant had not both presented her complaint and made her application until the Claim Form was presented on 31 May 2024, her application is out of time, and (consistent with the decision in Astle) the Tribunal has no power to extend time. The Respondent says, in consequence, that the Claimant’s application cannot be entertained by the Tribunal.[26]The Tribunal considers the statutory language in section 128(1) significant in answering this question. It reads: “An employee who presents a complaint to an employment tribunal that he has been unfairly dismissed [in the prescribed circumstances] may apply to the tribunal for interim relief”. The statutory draftsperson’s choice of the present tense does not indicate that the presentation of the claim form must, as the Respondent contends, precede the application. This interpretation is supported by the fact that the second-listed condition, that the application is made within seven days immediately following the effective date of termination, is separately described, in a distinct sub-section of section 128. Had the draftsperson wish to make these conditions both subject to a seven-day deadline then they could easily have done so. There is nothing, save for the order in which these conditions appear, that indicates that it is a condition to making an application that a claimant must first have presented a complaint, and that is insufficiently persuasive in light of the other considerations. The Tribunal concludes that the seven-day timeframe only applies to the presentation of the application, not the complaint.[27]Consequently, the tribunal finds that the Claimant did make an application in the time prescribed by section 128 of the 1996 Act, and that it does not matter that the complaint was presented later than seven days after the effective date of dismissal provided it was presented within the timeframe for presentation of an unfair dismissal complaint (which it is accepted by the Respondent that it was in this case). 6 of 9 The Third Question: Is it likely that the Claimant will persuade the Tribunal at the final hearing that she had made a disclosure to her employer?[28]While the Respondent disputes whether two of the three averred disclosures were made, it accepts that the Claimant raised health and safety concerns at the group huddle to Mr Ramjuan. It is therefore likely that the Tribunal at the final hearing will answer this question positively. The Fourth Question: Is it likely that the Claimant will persuade the Tribunal at the final hearing that she believed that that disclosure tended to show one or more of the things itemised at (a) to (f) under section 43B(1) of the 1996 Act?[29]While the Claimant cited the Building Safety Act 2022 in her application, she confirmed in submissions that in fact she is relying on section 43B(1)(d) in support of her assertion that the disclosures she made were “qualifying disclosures”, as being a disclosure made in the public interest that tends to show “that the health and safety of any individual has been, is being or it likely to be endangered”.[30]The Respondent does not dispute that the Claimant believed that the disclosure tended to show this, and the Tribunal at the final hearing is therefore likely to accept the Claimant’s assertion that she did. The Fifth Question: Is it likely that the Claimant will persuade the Tribunal at the final hearing that that belief was reasonable?[31]The Claimant says that it is likely that the Tribunal at the final hearing will find her belief reasonable, but the Respondent disagrees.[32]The Respondent says (and its witness evidence supports) that there were two health and safety representatives on site, and the Tribunal in the final hearing is unlikely to find that both of them overlooked the risk that the Claimant has identified. If, as the Respondent avers is more likely, those representatives were aware of that risk but did not act on it, that is highly suggestive that the Claimant’s belief was not reasonable. This, the Respondent says, means it is likely that the Tribunal in the final hearing will find that the Claimant’s belief is not reasonable.[33]This tribunal considers that the answer to this fifth question is one that will come down to the force and credibility of the evidence that will be examined at the final hearing. It is not a matter where this tribunal can say that the Claimant has a “pretty good” chance of succeeding (Taplin), or a significantly higher than 51% probability (Sarfraz) of doing so. 7 of 9 The Sixth Question: Is it likely that the Claimant will persuade the Tribunal at the final hearing that she made the disclosure in good faith?[34]Again, the Claimant’s position is that she made the disclosure in good faith, out of concern for the safety of her clients.[35]The Respondent has not questioned this, and in light of that, the Tribunal at the final hearing is likely to find the answer to this question to be “yes”. The Seventh Question: Is it likely that the Claimant will persuade the Tribunal at the final hearing that the disclosure was the reason or the principal reason for her dismissal?[36]This is the third point of contention between the parties.[37]The Claimant says that: a) The Respondent’s reasons for dismissing her do not stand up to scrutiny, because they unreasonably ignored the mitigating circumstances relating to her disabilities. The Claimant avers that the Respondent’s reasons for dismissing her are not to be believed. b) Rather, she says, the Respondent was actively trying to get rid of her, and she dates that back to July 2023 and the aftermath of her disclosures. The Claimant says that there was a powerful force of determination from the Respondent to get her out of its organisation, where everything she said was dismissed completely by it.[38]The Respondent says: a) Its reasons for dismissing her were the ones identified to the Claimant at the time and investigated and canvassed thoroughly as part of its disciplinary processes. Those were weighty incidents of misconduct, and justified dismissal as a response. b) The Respondent undertook lengthy and involved investigatory and disciplinary processes – this was not a ‘quick fix’ to get rid of a troublesome employee. c) Furthermore, no-where in the course of those investigatory or disciplinary processes did the Claimant raise any concern about fire safety for her clients. No evidence was provided to the Tribunal from the dismissing officer, but each of the two investigating officers have said that they were not aware of the concern the Claimant raised regarding the health and safety risk to her clients. d) There was a significant time gap between when the disclosures were, or were supposedly, made in July 2023, and the decision to dismiss the Claimant in May 2024. This gives credence to the Respondent’s position that the disclosure(s) were not causative as regards the dismissal. 8 of 9[39]These considerations, the Respondent says, means it likely that the Tribunal at the final hearing will conclude that the disclosures were not the reason or principal reason for the Claimant’s dismissal.[40]Similarly as for the fifth question, the Tribunal cannot conclude that it is likely that the Tribunal in the final hearing will find that the Claimant’s dismissal was for the reason, or principal reason, that she had made disclosures. A significant part of answering that question will come down to how the relevant investigatory officers and decision-makers respond to cross-examination and Tribunal questions.
Conclusions
[41]It falls to the Claimant, as applicant, to satisfy this Tribunal that it is likely that the Tribunal in the final hearing will find her complaint of automatic unfair dismissal for having made protected disclosures well-founded. For the above reasons, namely that this Tribunal is not sufficiently confident that the Claimant will persuade the Tribunal at the final hearing of the elements of the test identified as the fifth and seventh questions above, the Claimant’s application fails. EMPLOYMENT TRIBUNALS Considered at: London South On: 26 July 2024 By: Employment Judge Ramsden In the matter of Miss M Onu v the Secretary of State for Work and Pensions Consideration of judgment reached on: 5 July 2024
Conclusions
[1]The Claimant’s application for reconsideration of the judgment refusing her application for interim relief given in this matter on 5 July 2024 is refused, and the decision in that judgment is confirmed. The fact that the Claimant has been refused interim relief does not affect her underlying claim, which will proceed.
BACKGROUND
[2]The Claimant sent the Tribunal a document entitled “Interim Relief Application” on 14 May 2024, and she then proceeded to present a Claim Form pertaining to her dismissal on 31 May 2024.[3]The Claimant claims that she was automatically unfairly dismissed by the Respondent for the reason that she made protected disclosures in July 2023, in contravention of section 103A of the Employment Rights Act 1996 (the 1996 Act).[4]The Respondent resists this claim, and says that it fairly dismissed her for misconduct. APPLICATIONS[5]The Claimant applied on 24 July 2024, under Rule 71 of the Employment Tribunals Rules of Procedure 2013 (the ET Rules), for reconsideration of my decision on 5 July 2024 to refuse her application for interim relief. 1 of 5[6]The Claimant’s reasons for applying for reconsideration of that decision are that: a) There is a shortage of her medication to combat narcolepsy, and the fact she is taking a lesser dosage than her prescribed levels of medication affects her ability to function and complete necessary tasks; b) She has presented various pieces of evidence to the Tribunal, that being:(i) Some email correspondence from October to December 2023: 1. between the Claimant and the Respondent; and 2. between members of the Respondent’s staff, about the Claimant’s ill health/disability-related absences;(ii) An occupational health report for the Claimant dated 14 March 2023;(iii) Some email correspondence between the Claimant and Mr Payne dated in November 2023 about her ill health/disability-related absences;(iv) An email from the Claimant’s trade union representative confirming that he would be happy to be a witness for her in Employment Tribunal proceedings; and(v) Letters from the Claimant’s sleep consultant on 17 and 19 July 2024 which confirm the severe national shortage of the Claimant’s narcolepsy medication; and c) She avers that the Respondent failed to make reasonable adjustments to accommodate her disability.
LAW
[7]The Rules on reconsideration are set out in Rules 70 to 73 of the ET Rules. The pertinent one for these purposes is Rule 70: “Principles A Tribunal may, either on its own initiative (which may reflect a request from the Employment Appeal Tribunal) or on the application of a party, reconsider any judgment where it is necessary in the interests of justice to do so. On reconsideration, the decision (“the original decision”) may be confirmed, varied or revoked. If it is revoked it may be taken again.”[8]Section 128(1) of the 1996 Act prescribes that a person may only apply for interim relief where they are claiming: a) That the reason or principal reason for their dismissal is one of a number of specific reasons, which include that the employee made a protected disclosure; or 2 of 5 b) That the reason or principal reason for which they were selected for redundancy dismissal was one of a number of specific reasons.[9]The list of reasons or principal reasons for dismissal included in section 128(1) does not include that the Claimant was asserting that the Respondent dismissed them for asserting rights under the Equality Act 2010.[10]Taking each of the Claimant’s reasons for seeking a review of the Tribunal’s decision in turn: a) The shortage of the Claimant’s medication: The Claimant has not said what the relevance of the shortage of her medication is to her application for reconsideration. She has not suggested that she did not present the case she wanted to in the hearing, and indeed the position she articulates in her reconsideration is the same as that she presented to the Tribunal in the hearing. Moreover, the Tribunal was aware of the national shortage of the Claimant’s narcolepsy medication at the time of the hearing on 4 July 2024, as the Claimant brought that matter to my attention at the outset of the hearing. The Claimant was asked if she felt she was able to present her case effectively, and she confirmed that she was. The Claimant also confirmed when asked that she would tell the Employment Judge if she was struggling due to this in the course of the hearing, and she did not do so. The hearing lasted 2.5 hours, and there was a break for reading. I do not believe the Claimant’s ability to present her case was hampered by the shortage of her medication, and that belief is based on the fact that she confirmed to me that it was not; b) The additional evidence:(i) Some of the evidence the Claimant has sent to the Tribunal supports the truth of her saying that there is a national shortage of her narcolepsy medication – but the Respondent did not question this, nor did the Tribunal. The Tribunal accepted the Claimant’s word on this at the time of the hearing, and was conscious to check with her whether she felt her presentation of her case for interim relief was hampered by that shortage – as described above. This evidence does not support reconsideration of the decision reached on the Claimant’s interim relief application;(ii) Some of the evidence now presented by the Claimant relates to the Claimant’s health conditions. Given the issue for the Tribunal to determine in an interim relief hearing is whether it is likely that the 3 of 5 Tribunal, at the Final Hearing, will find that the Claimant’s dismissal was for the reason or principal reason that she made a protected disclosure, evidence relating to the Claimant’s ill health conditions is not relevant to that;(iii) Other parts of the evidence the Claimant has provided relates to the Respondent’s correspondence with the Claimant about her ill health/disability-related absences. It is unclear whether the Claimant is presenting this so as to assert that the real reason the Respondent dismissed her was her repeated absence for ill health/disability reasons, but if that was the reason or principal reason for her dismissal, that is not one of the forms of dismissal that would attract interim relief. That evidence does not support the Claimant’s case for interim relief; and(iv) The willingness of the Claimant’s trade union representative to appear as a witness for her in the Final Hearing is not relevant to that question either. Of course, his evidence may well be helpful to the Claimant’s case at that Final Hearing, but he has not yet presented that evidence, and nor is it the function of the Tribunal at an interim relief hearing to undertake a thorough examination of the evidence. As described by the EAT in the case of Al Qasimi v Robinson EAT 0283/17, the task for the Tribunal in an interim relief hearing is “very much an impressionistic one”. Where there is a conflict of evidence, it is perfectly open to the Tribunal to conclude that that conflict cannot be resolved at the interim relief hearing but is more appropriately determined at the final hearing. That is what the Tribunal did here; and c) The Claimant’s contention that the Respondent failed to make reasonable adjustments to accommodate her disability: As above, that is not relevant to the question before the Tribunal of whether it is likely that the Tribunal, at the Final Hearing, will find that the Claimant’s dismissal was for the reason or principal reason that she made a protected disclosure.[11]None of the material or argument presented by the Claimant for reconsideration of the decision reached affects the question the Tribunal was required to answer in her interim relief application, of whether it is likely that the Tribunal, at the Final Hearing, will find that the Claimant’s dismissal was for the reason or principal reason that she made a protected disclosure. There is no reasonable prospect of the Claimant succeeding in her argument that it is necessary in the interests of justice for the Tribunal to vary or revoke the original decision.[12]The Claimant is reminded that the question that will be before the Employment Tribunal when it comes to determining her underlying unfair dismissal claim is whether the reason or principal reason for her dismissal was the disclosure(s) she made which she avers were protected disclosures. The Tribunal at that Final 4 of 5 Hearing will examine the evidence presented by both parties thoroughly, and determine whether, on the balance of probabilities, the Claimant establishes that her dismissal was for that reason or principal reason. That is a different test to the test before the Tribunal in the interim relief application.[13]For the reasons set out above, the Claimant’s application for reconsideration fails and that decision is confirmed.
The Law
[14]By contrast, as the extract from Mummery P’s judgment in Selkent makes clear, where the claim was a fresh one and is out of time, it is essential for the tribunal to consider whether time limits should be extended.’11. In Galilee v. Commissioner of Police of the Metropolis [2018] ICR 634, the EAT (HHJ Hand QC) held that the doctrine of ‘relation back’, whereby a new cause of action introduced by amendment took effect from the time the 3 of 7 original proceedings were commenced, should not be applied to amendments to Employment Tribunal claims; thus amendments to pleadings in the Employment Tribunal which introduced new claims or causes of action took effect for the purposes of limitation at the time permission was given to amend.12. In the subsequent case of Reuters v. Cole, UKEAT/0258/17/BA (Mr Justice Soole), the EAT, having considered Galilee, recorded that it was common ground between the parties that ‘if the proposed amendment is simply relabelling, there is no need to consider the question of timings’, referring back to Foxtons Ltd v. Ruwiel.13. In considering the injustice that may be caused to a Claimant who is prevented from pursuing an amended claim, the Tribunal may take account of the prospects of success of a claim, albeit it must always be recognised that the Tribunal will not have heard the evidence at the preliminary stage and is not conducting the trial (Herry v. Dudley Metropolitan Borough Council (UKEAT/0170/17 and (Kumari v. Greater Manchester Mental Health NHS Foundation Trust [2022] EAT 132). 14. In Vaughan v. Modality Partnership [2021] IRLR 97, HHJ Tayler said that at the heart of the balancing exercise should be a focus on the practical consequences of allowing or refusing an amendment: ‘If the application to amend is refused how severe will the consequences be, in terms of the prospects of success of the claim or defence; if permitted what will be the practical problems in responding. 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. It will often be appropriate to consent to an amendment that causes no real prejudice. This will save time and money and allow the parties and tribunal to get on with the job of determining the claim.”[15]HHJ Tayler went on to say: 4 of 7 ‘Refusal of an amendment will self-evidently always cause some perceived prejudice to the person applying to amend. They will have been refused permission to do something that they wanted to do, presumably for what they thought was a good reason. Submissions in favour of an application to amend should not rely only on the fact that a refusal will mean that the applying party does not get what they want; the real question is will they be prevented from getting what they need. This requires an explanation of why the amendment is of practical importance because, for example, it is necessary to advance an important part of a claim or defence. This is not a risk-free exercise as it potentially exposes a weakness in a claim or defence that might be exploited if the application is refused. That is why it is always much better to get pleadings right in the first place, rather than having to seek a discretionary amendment later.’ Decision on Amendment Application[16]On 13th November 2024 the Claimant applied to amend her claim to add new causes of action of disability discrimination, harassment, and victimisation. The Respondent objected to the Claimant’s application on 9th December 2024.[17]Whilst I describe the Claimant’s application as an ‘application to amend’ it is fact nothing of the sort. The document is a chronology of events that the claimant alleges occurred post-employment and after submission of her ET1 claim form. At the conclusion of the document the Claimant merely stated statutory provisions as follows: ‘5. Related Law Discrimination S.6 and S.15 under the EqA 2010: Discrimination arising from disability S. 20 Duty to make adjustments S. 21 Failure to comply with a duty Victimisation S.27 1a; 2a; 4; and 5 under the Equality Act 2010 S. 29 references the provision of services to the public; service providers must not discriminate against a person requiring the service by not providing the person with the service. S. 29 1 – 7 5 of 7 S. 31 interpretation S. 32 Application of the law, reference to the provision of service’.[18]The Claimant did not seek to label the Heads of Claim, specify which part of her narrative were allegations under the Heads of Claim, identify protected acts, or what she alleged were detriments for having made a protected act. When questioned about what the allegations were and why they had not been pleaded in the ET1 the Claimant said that she was complaining that the DWP had mishandled her Universal Credit claim which had been made after the termination of her employment. The Claimant alleged that there had been delays in processing her Universal Credit claim and that she had been left without any financial support. The Claimant stated that she was not bringing new claims but that she was ‘re-labelling’ what she had previously put in her claim form. The Claimant also stated that she volunteers as a ‘gateway assessor’ at the Citizens Advice Bureau.[19]I explained to the Claimant that this could not be correct as a matter of logic because the allegations she wanted to add to her claim had all occurred, on the Claimant’s account, after she had presented her ET1 claim form. Therefore, they would not have been in her ET1 so she could not simply be wanting to re-label complaints.[20]The Respondent made submissions objecting to the Claimant’s application to amend and the submissions can be summarised thus,(i) Whilst the Claimant was a Litigant-in-Person she had had legal advice, had previously submitted an ET1 claim form, and in the present matter had made an application for interim relief. Therefore, she would be aware of time limits.(ii) There was no nexus between the ‘new’ allegations and the Claimant’s employment.(iii) The claimant’s proposed amendments were vague, lacked clarity, and were not able to be responded to. 6 of 7(iv) There would be sever prejudice to the respondent as it would be compelled to do a deep document search, call more witnesses to give evidence, and that those witnesses would have no knowledge of the extant complaints.(v) By virtue of ss. 29, 31, 32, and 114 of the EqA 2010, the Tribunal did not have jurisdiction to deal with how the Claimant’s Universal Credit claim was handled.[21]I explained to the parties that when considering an application to amend, the crucial question for a Tribunal is the Balance of Prejudice; as the appellate courts have repeatedly made clear.[22]The amendments the Claimant sought to be allowed were very wide in scope yet uncrystallised. I took into account that if the amendment was not allowed, the Claimant still had clear allegations which will be tested at a Final Hearing. The prejudice to the Respondent, in allowing the amendment sought, outweighed any prejudice to the Claimant.[23]However, in this case, I agreed that the Tribunal did not have jurisdiction to determine the Claimant’s complaints in her application to amend (by virtue of ss. 29, 31, 32, and 114 EqA 20100 and her application must be dismissed. Therefore, I did not allow the amendment.