Notes Reasons for the judgment having been given orally at the hearing, written reasons will not be provided unless a request was made by either party at the hearing or a written request is presented by either party within 14 days of the sending of this written record of the decision. JUDGMENT having been sent to the parties on 12 February 2024 and written reasons having been requested in accordance with Rule 62(3) of the Employment Tribunals Rules of Procedure 2013, the following reasons are provided:
REASONS
[1]This was a preliminary hearing which was listed to deal with a number of different issues. My colleague, Employment Judge Horne, set those out in an agenda at paragraph 7 of his Case Management Order which is at page 77 of the electronic bundle. The issues included:(1) amendment applications;(2) strike out in relation to the complaint of direct discrimination because of sexual orientation on the basis that it has no reasonable prospects of success;(3) whether the complaints of discrimination or harassment were presented within the statutory time limit; and(4) if none of them were presented within the time limit, whether to extend the time for presentation of the claim on the grounds that it would be just and equitable to do so. (The agenda made it clear that if I found that any one complaint of harassment or discrimination was presented within the time limit, all the other time limit issues would be determined at the final hearing);(5) finally, whether the claimant's claim that he was bullied out of his job after submitting a grievance should be struck out as having no reasonable prospects of success. That was the agenda. Submissions[2]I heard submissions from both sides in relation to each of those five issues, and I was directed to various parts of the preliminary hearing bundle, and I have re-read those over the adjournment before delivering my decision. The Issues Strike out of victimisation claim.
The Issues
[3]On reflection, I took the view that dealing with the issues in reverse order was actually the most logical way to address matters. That meant that the first issue for me to determine was at paragraph 7.5: whether the allegation that the claimant was bullied out of his job after submitting a grievance should be struck out as having no reasonable prospects of success.[4]This factual allegation has been clarified at previous preliminary hearings before my colleagues (Employment Judge Anderson and Employment Judge Horne) as potentially being an allegation of victimisation contrary to section 27 of the Equality Act 2010. That was the sole legal basis on which the Judges could identify a cause of action in this part of the claimant’s case.[5]The framework of section 27 had been clarified with the claimant at the last hearing, and we traversed some of the same issues at today’s hearing too. I refer to paragraph 31 onwards from Employment Judge Horne’s Case Management Order (page 80 onwards in the bundle).[6]The claimant clarified that if this was a section 27 victimisation claim, then the protected act would be a protected act pursuant to section 27(2)(d). This is the subsection which defines a protected act as “making an allegation (whether or not express) that A or another person has contravened this Act.”[7]The first matter to consider was whether the claimant has reasonable prospects of establishing a protected act which can form the foundation of a victimisation claim and which he says led to him being subjected to detriments (s27(1).)[8]I asked the claimant for his submissions today. In essence he reiterated what he previously said to Employment Judge Horne, and struggled to explain how this was a protected act within the meaning of the Equality Act 2010. He confirmed that the protected act would be the grievance. I was given the page references for the relevant grievances (the documents at page 88 and page 110). Rather than rely solely on submissions, I checked for myself whether the grievances made an allegation of discrimination or a contravention of the Equality Act such that they could constitute a ‘protected act.’ In line with my judicial colleagues (and indeed in line with the claimant’s previous submissions to the Tribunal) I am afraid I cannot discern that they allege a contravention of the Equality Act 2010 (whether expressly or otherwise.)[9]The substance of the allegations in the grievances is bullying. The documents talk about the lack of respect being shown by a manager towards employees and others. All of this may be legitimate grounds for a grievance (and there is no criticism levelled at the claimant for seeking to pursue that grievance) but the question I must answer today is a very specific one: is there a protected act for the purposes of the section 27 claim? Does the grievance allege discrimination/ a contravention of the Act? I am afraid that I cannot see that it does. If the claimant is unable to point to a protected act then his claim of victimisation based on the protected act cannot get off the ground. On that basis alone I would have to strike out the claim of victimisation as having no reasonable prospects of success. I emphasise that I am doing that even taking the claimant’s case at its highest and assuming that he will be able to prove all the matters that he alleges to the Tribunal. The problem with this aspect of the claimant’s case is that it just does not ‘work’ as a matter of law even based on what the claimant says to me about his case and how it will be put to the Tribunal at any final hearing.[10]Even if I were wrong about the absence of a protected act, there would certainly be some difficulties in establishing the relevant and necessary causation between the protected act and the detriments. Based on what I have been shown, there is no dispute that the respondent says that the dismissal (which is what the detriment amounts to) was because of ill health capability. The dismissal took place after nine months of sick leave where there was no likely or suggested return to work date for the claimant. It also took place in circumstances where the claimant had declined the option of going to Occupational Health and had declined the adjustments offered by the respondent (as per pages 209, 211 and 214.) Those included the offer of adjustments or working at an alternative store. As Miss Harty says, the evidence would tend to suggest that, rather than trying to get rid of the claimant from his employment, the respondent was at this stage trying to get him back into work. There might be an argument that links the claimant's ill health to the respondent’s behaviour but that does not link the dismissal to the protected act. Thus, I would have significant doubts about causation too. Even so, the claim does not get to that stage because of the absence of the protected act which is fundamental to a section 27 claim.[11]In a case where strike out is to be considered on the basis that the claim has no reasonable prospects of success it is important to ensure that the Tribunal understands the way that the claimant puts his case. The claimant’s case should be taken at its highest unless contradicted by plainly inconsistent documents. Discrimination claims should not be struck out save in the most obvious cases because they are generally fact sensitive (Anyanwu and anor v South Bank Student Union and anor [2001] ICR 391). Only in an exceptional case will a case be struck out where the central facts are in dispute. An example might be where the facts sought to be established by the claimant are totally and inexplicably inconsistent with the undisputed contemporaneous documentation (Ezsias v North Glamorgan NHS Trust 2007 ICR 1126). (See also guidance in Balls v Downham Market High School and College 2011 IRLR 217 in this area.) The Tribunal has to consider whether on a careful consideration of all the available material, it can properly conclude that the claim has no reasonable prospects of success. It is not appropriate to conduct a mini trial of the facts to try to work out which version of events is more likely to be established at trial. However, in Ahir v British Airways plc 2017 EWCA Civ 1392, the Court of Appeal asserted that tribunals should not be deterred from striking out claims that involve disputes of fact, even discrimination claims, if they are entirely satisfied that there is no reasonable prospect of the facts necessary to find liability being established, provided that they are keenly aware of the danger of reaching such a conclusion in circumstances where the full evidence has not been explored.[12]Taking into account all the above legal principles I have concluded that it is appropriate to strike out this victimisation claim. I have reached this conclusion having taken the claimant’s case at its highest. I have not conducted a ‘mini trial’ of the evidence. The grievances relied on as protected acts are a matter of written record. Conclusions can be drawn about whether they are protected acts by reading the documents themselves. There is no need for witness evidence and no dispute of fact to resolve: the written grievances say what they say. It is a matter for analysis whether there is any prospect of the written grievances constituting protected acts for a victimisation claim. Having read the relevant documents, I am satisfied that there is no reasonable prospect of the claimant establishing a protected act for the purposes of any victimisation claim. In those circumstances the victimisation claim will not get off the launchpad and it will not be necessary to consider any evidential disputes about causation of the alleged detriments. In those circumstances it is appropriate and proportionate to strike out this aspect of the claimant’s case at a preliminary stage.[13]In light of the above the claimant’s victimisation allegation will be struck out on the basis that it has no reasonable prospects of success. Time limits[14]I move on to the next issue, the time limit issues. (Paragraphs 7.3 and 7.4 of the List of Issues at page 77.)[15]The only claim that would have been said to have been presented within the statutory time limit (had it been allowed to progress) would have been the victimisation claim. The Tribunal claim form was presented to the Tribunal on 21 October 2022. That follows an ACAS Early Conciliation Certificate covering the period 12 August to 22 September 2022. This means that the earliest ‘in time’ claim would relate to matters on 13 May 2022 and later. I have gone back to the allegations of discrimination to check for dates to which they relate. The simplest place to look for that is at Appendix 1 to the respondent’s skeleton argument.[16]Allegation of harassment number 1 relates to a matter on 25 August 2020, which would be nearly one year and nine months out of time. The claim at paragraph 2 relates to 16 November 2020, which would be nearly one year and six months out of time. The claim at paragraph 3 relates to April and May 2021, which is certainly one year out of time. The claim at paragraph 4 in August 2020 is one year nine months, or so, out of time. Finally, paragraph 5 refers to an incident in January 2021, which would be nearly one year and four months out of time. So the answer to the question at 7.3 is that all of the claims that the claimant wishes to pursue are out of time and to a significant degree. All of the claims pursued are over a year out of time.[17]Given that the victimisation claim is struck out and given that all the other claims were presented outside the applicable time limit, I next have to consider whether they should be allowed to continue on a just and equitable basis. Is it just and equitable to extend the relevant time limit to allow those claims to be pursued (section 123(1)(b)? There is a whole raft of case law behind this, but I basically have to take into account all the relevant circumstances and weigh them up.[18]The onus is on the claimant to show the Tribunal why it would be just and equitable to allow the claim to continue. There is no presumption in favour of granting an extension of time. The starting point is that time limits should be complied with (Robertson v Bexley Community Centre [2003] IRLR 434).[19]The ‘just and equitable’ test is broader and more flexible than the reasonable practicability test in the Employment Rights Act 1996. The factors set out in in section 33(3) of the Limitation Act 1980 may be of assistance (British Coal v Keeble and ors [1997] IRLR 336). I take that as providing some guidance albeit I do not use it as a mechanistic ‘checklist’. It provides guidance but the Tribunal is not required to adhere to it rigidly or slavishly (Southwark London Borough Council v Afolabi [2003] 800). Section 33(3) of the Limitation Act sets out the following factors: “(a) the length of, and the reasons for, the delay on the part of the plaintiff; (b) the extent to which, having regard to the delay, the evidence adduced or likely to be adduced by the plaintiff or the defendant is or is likely to be less cogent than if the action had been brought within the time allowed by section 11[,by section 11A ][, by section 11B] or (as the case may be) by section 12; (c) the conduct of the defendant after the cause of action arose, including the extent (if any) to which he responded to requests reasonably made by the plaintiff for information or inspection for the purpose of ascertaining facts which were or might be relevant to the plaintiff's cause of action against the defendant; (d) the duration of any disability of the plaintiff arising after the date of the accrual of the cause of action; (e) the extent to which the plaintiff acted promptly and reasonably once he knew whether or not the act or omission of the defendant, to which the injury was attributable, might be capable at that time of giving rise to an action for damages; (f) the steps, if any, taken by the plaintiff to obtain medical, legal or other expert advice and the nature of any such advice he may have received.”[20]It is particularly relevant to consider the length of and reasons for the delay and the balance of prejudice to each respective party caused by granting or refusing the extension of time. I consider all the relevant circumstances of the case.[21]Looking at that and then looking at in particular the so-called Keeble factors I have come to the following conclusions.[22]The first issue is: what is the length of and what are the reasons for the delay? The delay in this case is lengthy, particularly in the context of a three month primary limitation period. The delay is between a year and a year nine months (depending on the specific allegation under consideration.) What are the reasons for that delay? It has been difficult to establish the substantive reasons for the delay with the claimant today. First of all, he says at various points that he was trying to resolve matters internally. I am not entirely sure at what point he felt that that internal process had run its course and reached a conclusion but the case law does tend to indicate that waiting for matters to be resolved internally is not generally a good enough reason for delaying in presenting a claim to the Tribunal. There is no general principle that it will be just and equitable to extend the time limit where the claimant was seeking redress through the employer’s grievance procedure before going to Tribunal. The general principle is that a delay caused by a claimant awaiting completion of an internal procedure may justify the extension of the time limit but it is only one factor to be considered in any particular case. Indeed, the grievance that I was referred to in detail in this case did not deal with these particular allegations which form the claimant’s Tribunal claim.[23]I understand that the claimant is a litigant in person, and I understand that he would not have the same level of knowledge of time limits as a legally qualified representative. However, he would clearly be aware of the possibility of pursuing a Tribunal a claim given the nature of his allegations. Had he done any research (even a basic internet search) he would quickly have become aware that there is a time limit for issuing these sorts of Tribunal claims. It is apparent from a relatively casual internet search or something of that nature. Indeed, at various points in the chronology there is reference to the claimant having had at least casual/unofficial conversations with legally qualified persons. Indeed he may well have gone to the Citizens Advice Bureau at some point. Any one of those consultations or discussions would have alerted him to the need to act quickly and to put the claim in to the Tribunal sooner rather than later.[24]At various points the claimant mentioned his mental health. I take on board the fact that this has clearly been a distressing and upsetting experience for the claimant, particularly given the nature of some of the allegations he makes and the impact that may have had upon his feelings and his ability to go about his normal day-to-day activities in his home (which is located close to his former place of work.) However, this is not a disability discrimination claim and that means (amongst other things) that I have not seen any medical evidence to indicate the level of mental health difficulties the claimant was suffering from. There is nothing to suggest (even based on the claimant’s own submissions) that he was unable to present his claim before he actually did, even if only by making broad factual allegations. He would only have needed to put the bare bones of the factual allegations in the claim form and submit it to the Tribunal. He would not necessarily need to have put the particular or detailed legal labels on it in order to comply with the time limit requirements. I am aware also that the claimant was well enough to put a grievance in to his employer in 2020 and he was in work until September 2021.[25]In light of everything I have heard and read today, I am not convinced that there were particularly good reasons for the delay in this case. The delay was a lengthy one.[26]I have then considered the impact of the delay on the cogency of the evidence in the case – what lawyers would refer to as the ‘forensic prejudice.’ A lot of the factual allegations in this case are allegations relating to what has or has not been said verbally. Normally this means that the claimant and respondent will have to call witnesses to the Tribunal in order to prove what was, or was not, said. The claimant says that he can give his witness evidence on those issues. He says that he has a member of the public who is able to come and give evidence and also a witness who was his colleague at the various hearings. On the other hand, the respondent will have to rely on witness evidence from employees who have got to recall matters which are alleged to have happened several years ago. Witnesses’ memories fade over time. There will be even more delay before the case comes on for trial at a final hearing. The claimant asserts that this is not unduly problematic because there are transcripts and recordings of a lot of these incidents. However, this creates another set of difficulties. Transcripts and recordings have been mentioned on a couple of occasions. Case Management Orders were put in place for the claimant to provide the recordings that he wished to refer to today and to get transcripts for inclusion in the preliminary hearing bundle. Indeed there are some transcripts from some recordings included in the hearing bundle. However, on further exploration today the claimant has said that the relevant recordings and transcripts which relate to the allegations in question are not in the preliminary hearing bundle. The relevant evidence apparently relates to other meetings and is contained in another recording or another set of transcripts. That may or may not be the case. The Tribunal has no way of knowing whether that is correct or not. The difficulty that I have is that I have to make this decision today based on what has been presented to me by the parties. The claimant has been given a reasonable opportunity to draw my attention to the salient pieces of evidence to substantiate his assertion that the cogency of the evidence has preserved by contemporaneous recordings but has not been able to do so. There is at least a significant risk that there is no contemporaneous record or document dealing with these allegations and that the case will still have to be dealt with by deciding between the witnesses’ recollections and evidential accounts several years after the event. Indeed the allegations that the claimant says came from members of the public do not appear to have been captured contemporaneously or to have had their credibility or reliability checked during an internal investigation by the respondent. That is a further matter of concern for the Tribunal.[27]I have considered the promptness with which the claimant has actually presented the claims to the Tribunal. The difficulty here is that the claimant (whilst he may not have known the correct legal terminology) knew what had happened and knew what he thought about it. He knew that he thought he had been on the receiving end of discrimination. He understood that he was saying that this was age discrimination and sexual orientation discrimination and he would have known this soon after the incidents in question took place. It is not clear to me why he did not set them out in the claim form originally. Some of these allegations do not come into play until the first preliminary hearing in these proceedings, the further and better particulars and then some of them not until the second preliminary hearing in late 2023. So it is not possible to say that the claimant has acted particularly promptly in presenting the claim in as soon as he reasonably could.[28]I have drawn the threads of my consideration together by looking at the balance of prejudice between the parties. I find that, although the claimant wishes to pursue claims of discrimination, if I refuse to extend time for the out of time complaints he is not left entirely without a remedy. He has an unfair dismissal claim before the Tribunal which everybody accepts will have to go to a final hearing and be determined on the evidence by a Tribunal. I take note of the fact that the claimant had control of the process insofar as he was able to instigate the claim as soon as he wished to do so. On the other hand the respondent now has to react to a claim which has been presented over a year too late in the context of a three month limitation period. Any forensic prejudice is largely to the respondent. Having a fair trial means that both sides have a fair opportunity to put their case and prove their respective claim or defence. My concern about these claims, given the length of the delay, is that the respondent is in a position where it is not fairly able to defend itself in circumstances where it might well have had a better defence had the claim been brought within the relevant time limit.[29]There is no evidence (from what I have heard) that the claimant did not know of his rights and could not have dealt with matters and taken relevant advice at an earlier stage. There is, naturally, some query as to the prospects of success for the claimant. There is a question mark over whether the claimant is going to be able to substantiate some of his factual assertions.[30]Taking all matters in the round, I have concluded that it would not be just and equitable to allow the claims to proceed outside the applicable time limit. Consequently, those allegations of discrimination (relating both to age and sexual orientation) are not going to proceed beyond this preliminary hearing. Amendments[31]For the sake of completeness, there is the amendment application which covers some of the same ground. It relates to allegations 2-5 in Appendix 1 of the respondent’s skeleton argument. Again I am required to consider the balance of hardship and injustice in permitting the amendments as opposed to refusing them.[32]In Selkent Bus Co Ltd t/a Stagecoach Selkent v Moore [1996] UKEAT/151/96 the EAT provided helpful guidance on the consideration of applications to amend, per Mummery J: “(5) What are the relevant circumstances? It is impossible and undesirable to attempt to list them exhaustively, but the following are certainly relevant:(a) The nature of the amendment Applications to amend are of many different kinds, ranging, on the one hand, from the correction of clerical and typing errors, the additions of factual details to existing allegations and the addition or substitution of other labels for facts already pleaded to, on the other hand, the making of entirely new factual allegations which change the basis of the existing claim. The Tribunal have to decide whether the amendment sought is one of the minor matters or is a substantial alteration pleading a new cause of action.(b) The applicability of time limits If a new complaint or cause of action is proposed to be added by way of amendment, it is essential for the Tribunal to consider whether that complaint is out of time and, if so, whether the time limit should be extended under the applicable statutory provisions eg, in the case of unfair dismissal, S.67 of the 1978 Act.(c) The timing and manner of the application An application should not be refused solely because there has been a delay in making it. There are no time limits laid down in the Rules for the making of amendments. The amendments may be made at any time - before, at, even after the hearing of the case. Delay in making the application is, however, a discretionary factor. It is relevant to consider why the application was not made earlier and why it is now being made: for example, the discovery of new facts or new information appearing from documents disclosed on discovery. Whenever taking any factors into account, the paramount considerations are the relative injustice and hardship involved in refusing or granting an amendment. Questions of delay, as a result of adjournments, and additional costs, particularly if they are unlikely to be recovered by the successful party, are relevant in reaching a decision.”[33]Whilst the Selkent factors will often be highly relevant to whether an amendment application is granted or not, this will not always be so. The determination of permission to amend is not a tick-box exercise (Abercrombie v Aga Rangemaster Ltd [2014] ICR 209.)[34]Even when an amendment would involve adding an out of time claim, this will not necessarily be decisive against allowing the same (Transport and General Workers Union v Safeway Stores Ltd (2007) UKEAT/0092/07.) The interests of justice require a balancing exercise.[35]The case law which has developed in connection with amendment applications was recently considered by the EAT in Vaughan v Modality Partnership [2021] IRLR 97, per HHJ Tayler: “20. In Abercrombie Underhill LJ went on to state this important consideration, at para [48]: ‘Consistently with that way of putting it, the approach of both the Employment Appeal Tribunal and this court in considering applications to amend which arguably raise new causes of action has been to focus not on questions of formal classification but on the extent to which the new pleading is likely to involve substantially different areas of enquiry than the old: the greater the difference between the factual and legal issues raised by the new claim and by the old, the less likely it is that it will be permitted. ’21. Underhill LJ focused on the practical consequences of allowing an amendment. Such a practical approach should underlie the entire balancing exercise. Representatives would be well advised to start by considering, possibly putting the Selkent factors to one side for a moment, what will be the real practical consequences of allowing or refusing the 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 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.22. 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 riskfree 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. […] 24. It is also important to consider the Selkent factors in the context of the balance of justice. For example: 24.1. A minor amendment may correct an error that could cause a claimant great prejudice if the amendment were refused because a vital component of a claim would be missing. 24.2. An amendment may result in the respondent suffering prejudice because they have to face a cause of action that would have been dismissed as out of time had it been brought as a new claim. 24.3. A late amendment may cause prejudice to the respondent because it is more difficult to respond to and results in unnecessary wasted costs. 25. No one factor is likely to be decisive. The balance of justice is always key.”[36]The granting of permission to amend requires the exercise of a judicial discretion and a party many not otherwise seek to add to their claim; see Chandhok v Tirkey [2015] ICR 527 EAT, per Langstaff P: “16 […] The claim, as set out in the ET1, is not something just to set the ball rolling, as an initial document necessary to comply with time limits but which is otherwise free to be augmented by whatever the parties choose to add or subtract merely on their say so. Instead, it serves not only a useful but a necessary function. It sets out the essential case. It is that to which a respondent is required to respond. A respondent is not required to answer a witness statement, nor a document, but the claims made— meaning, under the Employment Tribunals Rules of Procedure 2013 (SI 2013/1237), the claim as set out in the ET1. 17 I readily accept that tribunals should provide straightforward, accessible and readily understandable fora in which disputes can be resolved speedily, effectively and with a minimum of complication. They were not at the outset designed to be populated by lawyers, and the fact that law now features so prominently before employment tribunals does not mean that those origins should be dismissed as of little value. Care must be taken to avoid such undue formalism as prevents a tribunal getting to grips with those issues which really divide the parties. However, all that said, the starting point is that the parties must set out the essence of their respective cases on paper in respectively the ET1 and the answer to it. If it were not so, then there would be no obvious principle by which reference to any further document (witness statement, or the like) could be restricted. Such restriction is needed to keep litigation within sensible bounds, and to ensure that a degree of informality does not become unbridled licence. The ET1 and ET3 have an important function in ensuring that a claim is brought, and responded to, within stringent time limits. If a “claim” or a “case” is to be understood as being far wider than that which is set out in the ET1 or ET3, it would be open to a litigant after the expiry of any relevant time limit to assert that the case now put had all along been made, because it was “their case”, and in order to argue that the time limit had no application to that case could point to other documents or statements, not contained within the claim form. Such an approach defeats the purpose of permitting or denying amendments; it allows issues to be based on shifting sands; it ultimately denies that which clear-headed justice most needs, which is focus. It is an enemy of identifying, and in the light of the identification resolving, the central issues in dispute. 18 In summary, a system of justice involves more than allowing parties at any time to raise the case which best seems to suit the moment from their perspective. It requires each party to know in essence what the other is saying, so they can properly meet it; so that they can tell if a tribunal may have lost jurisdiction on time grounds; so that the costs incurred can be kept to those which are proportionate; so that the time needed for a case, and the expenditure which goes hand in hand with it, can be provided for both by the parties and by the tribunal itself, and enable care to be taken that any one case does not deprive others of their fair share of the resources of the system. It should provide for focus on the central issues. That is why there is a system of claim and response, and why an employment tribunal should take very great care not to be diverted into thinking that the essential case is to be found elsewhere than in the pleadings.”[37]I have considered the relevant guidance in Selkent and the more recent case of Vaughan v Modality Partnership as well.[38]I make the following points about the amendment applications.[39]Firstly, they are significant amendments. Although the claimant ticked boxes for discrimination within the claim form, the amendments not only put the ‘meat on the bones’ of the claims, they put the underlying skeleton of the claims into the case too in that they give us the factual assertions on which the legal claims are based. The amendments that are sought relate to new claims, and the amendments are proposed outside the applicable time limits. The claims are not otherwise (aside from the relevant boxes being ticked) referred to within the claim form. They significantly widen the scope of factual enquiry in the case. The amount of evidence that the Tribunal will need to hear, the amount of findings of fact that it will have to make, differs vastly with the amendments permitted as compared to the claim without the amendments.[40]I have looked at the timing and the manner of the application to amend. I note (giving due allowance for the fact that the claimant is a litigant in person) that even now the claimant has not made a written application to amend. The current proposed amendments are in fact the handywork of the two previous Employment Judges who have sat with the claimant to try and understand his case and to glean what it is he is alleging are acts of discrimination. Even then, the amendments are not set out all in one go. They have emerged at a couple of different hearings. All of the proposed amendments are prima facie out of time, particularly as the alleged victimisation claim already would not stand up to scrutiny and would be struck out for having lack of reasonable prospects of success. All of this means that, were the amendments to be permitted, new witnesses would be required; those witnesses would be giving evidence about things that happened 3 to 4 years ago; it is likely that the hearing would need to be delayed further to accommodate the length of the extra evidence, and that again would increase the delay and the impact on the cogency of the evidence.[41]The claimant had it in his power today to show us the evidence to substantiate the allegations (with regard to transcripts) but he has not done so. Whilst I appreciate everything that he has said about his inability to effectively ‘play the legal game’, the orders from the last hearings made specific reference to the claimant providing the recordings that he thought were going to be relevant for me to look at today and for him to go about making transcripts of them. That hearing was back in October 2023. It is now 2 February 2024. The claimant could have made some efforts to locate the correct recordings and provide us with the evidence in relation to them. I am not in a position to guess what those recordings or transcripts would show. The onus is on the claimant to persuade me that that strengthens his application to amend his claim. There are therefore questions about the merits of the substantive claims, which again weigh against me granting permission to amend.[42]Underneath all of this is the fact that the claimant has never really explained to me adequately why he did not include the factual allegations in the original claim form. He may not have known what label to put on them, but he could have ‘told his story’ and given me the bones of the allegations. He did not do that. Had the issue of time limits not already been resolved against the claimant, I would not have granted permission to make those amendments in any event. Direct discrimination- strike out.[43]The last remaining issue for me to look at would be the strike out of the direct discrimination claims (paragraph 7.2). This is the one issue before me today where I would not have been finding in favour of the respondent. In a strike out application of this nature I have to take the claimant's case at its highest. I have to take into account that it is a discrimination allegation and all the points that have been made on behalf of the respondent about the merits of the claim really address the chances of the claimant proving his factual allegations. However, once I get drawn into that kind of dispute, I am not taking the claimant's case at its highest. Will he be able to prove the manipulation at allegation 1? We would have to find facts based on the evidence. The same is true of allegation 2 and the member of the public. The Tribunal would have to hear the evidence and decide who to believe and whether it was a credible report or not. The same with allegations 3, 4 and 5. In doing that we would not be taking the claimant’s case at its highest for the purpose of considering strike out on the basis of no reasonable prospects of success.[44]Despite this, for the reasons I have already stated, we do not get to that stage here. Although I would not have struck out the direct discrimination claims on the basis that they have no reasonable prospects of success, those claims have not been permitted as amendments to the claim and I would not have extended time on a just and equitable basis in order to allow them to be heard and determined at a final hearing in any event.[45]All of the above leads to the final conclusion set out in the written judgment that has been sent to the parties. That means that the unfair dismissal claim goes forward to a final hearing but the various allegations of discrimination will not. I have sent out a Case Management Order to that effect.