Mrs L Thoburn v Estates and Law Ltd (in voluntary liquidation): 2414122/2021

EMPLOYMENT TRIBUNALS

Case No 2414122/2021

Between

Mrs L ThoburnClaimant

Estates and Law Limited (in voluntary liquidation)Respondent

Before

Employment Judge Whittaker

Date 21 February 2025

JUDGMENT

The response is struck out.

REASONS

[1]In an order sent to the parties on 8 July 2024, the Tribunal gave the respondent an opportunity to make representations or to request a hearing, as to why the response should not be struck out because the respondent had not complied with the Order of the Tribunal for exchange of witness statements by 17 May 2024.

[2]The respondent has failed to make representations in writing why this should not be done or to request a hearing. The response is therefore struck out.

[3]The respondent will be entitled to notice of any hearings and decisions of the Tribunal but will only be entitled to participate in any hearing to the extent permitted by the Employment Judge.

[4]Mrs Thoburn was dismissed on 9 November 2021, and, after Judge Ross’ indication on 14 December 2021, Judge Whittaker granted permission at the hearing 21 February 2022 for Mrs Thoburn to bring further complaints of unfair dismissal and automatic unfair dismissal for a protected disclosure.

[5]After clarification, the contended protected disclosures were(a) the claimant’s email of 20 August 2021 and

(b) the contents of which were repeated on subsequent occasions. The discrimination was contended to be based on disability in respect of bowl cancer. Following the provision of information, the respondent accepted (by at least 26 October 2022) that, at the relevant times, Mrs Thoburn had bowl cancer, although the respondent representatives said that they had no knowledge of this condition nor were they put on sufficient notice that they ought reasonably to have known. There was also a further claim that Mr Cunningham removed the claimant’s unpaid lunch break of 30 minutes and took 30 minutes off her working day2.

[6]The respondent disputed all of the allegations of detriments and discrimination. The respondent further contended that Mrs Thoburn was dismissed because of her misconduct towards senior managers.

[7]The case was listed to consider(a) the claimant’s disability;

(b) whether the claims should be struck out or subject to a deposit order because of the claimant’s failure to comply with previous case management orders; and

(c) if in the alternative whether “unless” orders should be made against Mrs Thoburn for her failure to comply with case management orders. Judge Whittaker recorded Mrs Thoburn as raising unfounded allegations against the respondent, including dishonesty. Judge Whittaker said he was exasperated by the claimant’s behaviour as she rendered his task 2 Although I cannot see that an order to amend the claim accordingly. “incomprehensible and impossible” in respect of (b) and (c) above at the hearing of 26 October 2022.

[8]On 9 November 2023 Mrs Thoburn applied to add another respondent, a business whose directors were the same as the directors of the respondent; although Mrs Thoburn said that this business was dormant until after her case started. Judge Ross refused the claimant’s application to amend her claim to add a different respondent company at another case management hearing on 12 January 2024. The judge also refused the respondent’s applications under rule 15(b) and (c) above.

[9]By this time, the Judge’s frustrations were obvious. Judge Ross complained the huge volume of documents, the fact that bundles were not agreed (in breach of various Tribunal orders) and the arguments between the parties. On a straightforward matter, setting aside the content of the hearing bundle (1,027 pages by that stage) the parties could not agree on the material already disclosed, the respondent said it had sent Mrs Thoburn both hard copies (twice) and electronic versions of a hearing bundle and Mrs Thoburn said that that she had not received any on these 3 occasions. Judge Ross explained that this case was absorbing a disproportionate amount of the Tribunal’s resources and pleaded that the parties co-operate with one another. Judge Ross raised the claimant’s voluminous correspondence, entreated Mrs Thoburn to collect documents from the post office if she did not answer her door and warned the parties about the unprofessional nature of correspondence and that Mrs Thoburn should not contact the respondent’s representatives on social media or any way other than the email address provided to her. The Judge warned the parties about costs for vexatious, abusive, disruptive, etc conduct.

[10]The final hearing set for 5 July 2024 was, I think, the third attempt at a final hearing. The hearing was again cancelled; and again on the day as the case was not ready and furthermore the respondent had gone into voluntary liquidation. It was apparent from Judge Holmes’ record of hearing, that prior to this hearing Mrs Thoburn had done no research on the potential liability of the proposed additional individual respondents. Given that a full panel was engaged and some preliminary reading inevitably undertaken, it is surprising that a preliminary assessment of merits was not undertaken. Nevertheless, Judge Holmes invited Mrs Thoburn to make application to join individual respondents, which she subsequently did. The judge made clear that any such application, if opposed, was not necessarily going to be granted.

Judge Holmes set out claims against Ms Nuttall and Mr Cunningham as follows:

[11]- 11 protected disclosure detriment allegations, some relatively specific others vague - 2 discriminations arising from disability claims which appear to duplicate protected disclosure complaints - 2 complaints of reasonable adjustments which seem to mirror protected discrimination complaints and discrimination arising from disability complaints and - 3 complaints of less favourable treatment based on part-time working, which were again substantially similar to all of the above. The dates of the above allegations range from 20 August 2021 to 29 October 2021 or November 20213.

The hearing

[12]On 21 January 2025 Judge Slater advised the parties that this hearing would decide whether Mr Steven Cunningham and Ms Gillian Nuttall should be added as respondents. Judge Slater said that this hearing is not to decide the merits of the claimant’s complaints. So, I am bound by this decision. Judge slater was also concerned with the claimant’s apparent failure to comply with case management orders so she made provision for me to consider striking out the claimant’s claim and/or further case management orders.

[13]Mrs Thoburn attended with her husband or partner and her 2 children. Ms Nuttall and Mr Cunningham attended with their representative, Ms Acheampong. The respondent did not attend, but I did not anticipate this because the company was in voluntary liquidation.

[14]At the beginning of the hearing, an argument broke out between the parties about the provision of documents and bundles. I had the following bundle of documents: 1. Mrs Thoburn’s bundle of documents amounting to 640 pages; 2. a “Joint Hearing Bundle” of 549 pages; and 3. the proposed respondents’ preliminary hearing bundle of 130 pages. I did not have time to go through the various bundles of documents before we started but I advised the parties that I had read through the employment tribunal file, so I was aware of the background to the hearing.

[15]There appeared to be at least 2 copies of most (if not all) of the documents and 3 copies of the key documents. I determined that I would proceed despite the dispute about hearing bundles and I would not resolve any dispute in respect of documentation for this hearing unless I was asked to consider a document that was not previously seen and/or before any party today.

[16]At the outset I explained the structure of the hearing and my relevant tests. I referred to Selkent v Moore and Modality Partnership v Vaughan. I explained that(1) I considered that this would be a substantial amendment to the claim because Mrs Thoburn sought to introduce 2 new parties. I said that

(2) I would consider the manner and timing of the application, and

(3) the applicability of time limits. I said that

(4) of over-reaching importance was the prejudice to the parties and that this was normally dealt with by evidence. There were no statements prepared so I would deal with this by submission. I said that finally I would deal with anything else any party thought was relevant. I raised possible reasonable adjustments (see later).

[17]I listened carefully to Mrs Thoburn’s submissions. I asked her questions for clarification, particularly with reference to the matters at paragraph 14(1) to (2) above. I allowed Ms Acheampong to ask questions so that Mrs Thoburn could respond directly 3 The claim form was received on 18 October 2021, and I cannot see any order granting any amendment(s). to her points. I then listened to the respondents’ submission, during which Mrs Thoburn asked question and made assertions. I also asked relevant questions.

[18]I make the following observation, I emphasise, not because it featured as a factor in my determinations but as it was a pronounced feature of the hearing and this note forms a record of significant events of that day. Mrs Thoburn was impolite, aggressive and argumentative from early in the hearing. She regularly interrupted me. She cut across the respondent’s representative, to the extent that it was difficult for Ms Acheampong to have her say. I intervened regularly so that I could finish what I was saying and so that the respondent’s representative could be heard. I recognise that employment tribunal proceedings can be stressful and that this occasionally brings out the worst in some people. Employment judges have increasingly got used to dealing with disruptive behaviour from self-representing parties. Normal standards of conduct in courts and tribunals are frequently ignored. Mrs Thoburn was loudly resistant to my efforts to keep order. I was keen to avoid a shouting match so in the end I largely let her make her outbursts and talk over me and the respondent’s representative.

[19]Part way through the hearing Mrs Thoburn said that she had neurodiversity problems. This was not referred to on the claim form, where she contended that she had no disability. There was some documentary evidence to confirm and explain this contention which I took into account. I have extensive experience of neurodiversity, both through previous judicial appointment and also outside the tribunal, and in my experience, it is not always the case that contentions of neurodiversity explain rude and belligerent behaviour. Nevertheless, I conducted the hearing in a manner someone with moderate to severe neurodiversity could flourish.

[20]At the end of the hearing, I informed Mrs Thoburn of the outcome. I then proceeded to explain my reasons. Mrs Thoburn was upset and she again interrupted me. I said that if she could not contain herself that she might want to leave, which she did. I asked her husband/partner to remain and take a note of the remaining reasons, which he did, so that he could convey these to Mrs Thoburn.

The law

[21]The power to amend claims arises from the Employment Tribunal Procedure Rules 2024. Rule 30 deals with case management orders and says:(1) Subject to rule 32(2) and (3) (postponements), the Tribunal may, on its own initiative or on the application of a party, make a case management order.

(2) The particular powers identified in these Rules do not restrict that general power.

(3) A case management order may vary, suspend or set aside an earlier case management order where that is necessary in the interests of justice, and in particular where a party affected by the earlier order did not have a reasonable opportunity to make representations before it was made.

[22]Rule 35 specifically deals with adding parties, although little is added:(1) The Tribunal may on its own initiative, or on the application of a party or any other person wishing to become a party, add any person as a party, by way of substitution or otherwise, if it appears that there are issues between that person and any of the existing parties falling within the jurisdiction of the Tribunal which it is in the interests of justice to have determined in the proceedings.

(2) The Tribunal may on its own initiative, or on the application of a party, remove any party that appears to have been wrongly included.

[23]The case of Chapman and ors v Goonvean and Rostowrack China Clay Co Ltd

1973 ICR 50

, NIRC stressed that, in making use of their discretionary power to amend, tribunals should seek to do justice between the parties having regard to the circumstances of the case. Cocking v Sandhurst (Stationers) Ltd and anor

1974 ICR 650

, NIRC laid down the key principle that in exercising their discretion, tribunals must have regard to all the circumstances, and in particular to any injustice or hardship which would result from the amendment or a refusal to make it. This test was approved in subsequent cases and was restated by the EAT in Selkent Bus Co Ltd v Moore

1996 ICR 836

, EAT (whose approach was itself endorsed by the Court of Appeal in Ali v Office of National Statistics

2005 IRLR 201

, CA).

[24]When considering an application to amend a claim, it is also worth bearing the guidance in Chandhok v Tirkey

2015 ICR 527

, EAT: “The claim, as set out in the ET1, is not4 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 upon 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 [Tribunal Rules], the claim as set out in the ET1”. It follows that if a claimant wishes to argue a claim that is not set out in the ET1, they should make a formal application to amend and should not assume that such an application will necessarily be successful.

[25]In determining whether to grant an application to amend, an employment tribunal must always carry out a careful balancing exercise of all the relevant factors that would be caused to the parties by granting or refusing the amendment: see Selkent Bus Co Ltd v Moore. Selkent, set the relevant factors as including:a. The nature of the amendment. Specifically, applications to amend could range from the correction of clerical and typing errors, the addition of factual details to existing allegations and the addition or substitution of other labels for facts already pleaded, to, the making of entirely new factual allegations that change the basis of the existing claim. The tribunal has to decide whether the amendment sought is one of the minor matters or a substantial alteration pleading a new cause of action.

b. The applicability of time limits. If a new claim or cause of action is proposed to be added by way of amendment, it is essential for the tribunal to consider whether that claim/cause of action is out of time and, if so, whether the time limit should be extended.

c. The timing and manner of the application. An application should not be refused solely because there has been a delay in making it as amendments may be made at any stage of the proceedings. 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 identification of new facts or new information from documents disclosed on discovery 4 My emphasis

d. Any other relevant matter.

[26]Of over-riding importance, however, Vaughan v Modality Partnership

2021 ICR 535

, EAT, emphasised that the core test in considering applications to amend is the balance of injustice and hardship – to both parties – in allowing or refusing the application. It is inevitable that each party will point to there being a downside for them if the proposed amendment is allowed or not allowed. Therefore, it will rarely be enough to look only at the downsides or ‘prejudices’ themselves. These need to be put in context, and that is why it is important to look at the all the surrounding circumstances.

[27]Broadly speaking, 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: see Abercrombie and ors v Aga Rangemaster Ltd

2014 ICR 209

, CA. If a proposed amendment is in substance wholly different, from the case originally pleaded, which includes adding a whole new cause of action against new respondents, that is a factor counting against permission to amend under both the first and second factors identified in Selkent. If, in substance, the new claim is a mere relabelling or is closely connected to allegations in the existing claim, justice and the factors in Selkent are likely to point in favour of amendment. The exercise involves applying weight to these principles, not applying rigid rules on what constitute new causes of action.

[28]Time limits go to the Employment Tribunal’s jurisdiction. If a new complaint is sought to be added, 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. According to the Presidential Guidance on General Case Management for England and Wales, an application for leave to amend when there is a time issue should be dealt with at a preliminary hearing as a preliminary issue, at para 5.2 of Guidance note 1 it is stated: “If a new complaint or cause of action is intended by way of amendment, the tribunal must consider whether that complaint is out of time and, if so, whether the time limit should be extended. Once the amendment has been allowed, and time taken into account, then that matter has been decided and can only be challenged on appeal”.

[29]The question of amendment must be considered in the light of the circumstances existing at the date when the application to amend was made: Selkent. Therefore, the question of whether a new cause of action contained in an application to amend would, as it is an independent claim in this instance, be time barred, falls to be determined by reference to the date when the application to amend is made, not by reference to the date at which the original claim form was presented.

[30]Where the proposed amendment raises a new cause of action that is out of time, like in this instance, the tribunal must consider whether time should be extended, applying whichever statutory test governs the time limits for the claim in question and the extension of those limits. In this instance the reasonably practical formula set out in s48 ERA for the whistleblowing detriment claim and the just and equitable formula, which applies to Regulation 8 Part-time Workers (Prevention of Less Favourable Treatment) Regulations 20005 and to the discrimination claims under s123 Equality Act 2010.

[31]The Selkent decision on the applicability of time limits was elaborated on in Rawson v Doncaster NHS Primary Care Trust EAT 0022/08, where the Employment Appeals Tribunal (“EAT”) considered that the effect of an amendment is to backdate the new claim to the date on which the original claim form was presented. Therefore, once the amendment is granted, the respondent is thereafter prevented from raising the limitation defence. This is why, according to the EAT, consideration of the extension of time point is “essential”.

[32]Amey Services Ltd and anor v Aldridge and ors

UKEAT/0007/16

, held that the employment tribunal must come to a definitive conclusion on the question of time limits when it determines the amendment application — it cannot defer this issue to the substantive hearing of the new claims. While it may sometimes be appropriate to defer a decision on proposed amendments pending further inquiry or pending resolution of a legal issue by a higher court or tribunal, it is not acceptable to allow the amendments while deferring the time limit issue. However, the decision in Galilee v Commissioner of Police of the Metropolis

UKEAT/0207/16

, (a decision of equal standing with Amey) determined that decisions on time limits should be considered separately.

[33]The apparent tension between the Amey and Galilee decisions was considered in Douglas v North Lanarkshire Council

2024 EAT 194

, where an employment tribunal had overlooked the issue of time bar when considering and allowing an amendment by the claimant. While the EAT determined that neither Amey nor Galilee applied in that situation, it considered that where possible, a tribunal considering an application to amend should usually examine the issue of time bar as one of the Selkent factors. Where the issue of time limits is unclear, however, it may be reserved, but that it remains a live jurisdictional point which any subsequent tribunal considering the evidence has an ongoing duty to address, whether or not it had been raised by the respondent.

[34]Whilst I acknowledged that the conflicting authorities on this point give rise to uncertainty, as well as departing from the EAT’s reasoning in Amey, the decision in Gailiee call into question the Presidential Guidance and the interpretation of the reasoning in Selkent.

[35]In this instance I decided to deal with this time limit point now as both parties were able to raise any relevant factor for further exploration, and no parties would be prejudiced from raising any factor. Considerable further time and cost that could be saved by dealing with the time limit matter at the this preliminary hearing and that was in accordance with the overriding objective of rule 3 of the Procedure Rules. The dispute over whether or not the contended detriments, less favourable treatment and alleged discrimination extended over a period was so far in the part that this was not a major issue.

[36]If the claim is out of time, and the tribunal considers that time should not be 5 On an incidental point, I note that claims under the Part-time Workers Regulations can only be brought against an employer and not against individual managers, etc, so the tribunal may not have jurisdiction for this complaint. I accept this matter was ventilated at the hearing. extended under the appropriate test, then it is “a factor — albeit an important and potentially decisive one — in the exercise of the discretion”: Transport and General Workers’ Union v Safeway Stores Ltd EAT 0092/07. The fact that the relevant time limit for presenting the ‘new’ claim has expired without grounds for granting an extension will not prevent the tribunal exercising its discretion to allow the amendment, although it will be an important factor on the side of the scales against allowing it.

[37]Mrs Thoburn claims against Ms Nuttall and Mr Cunningham were first mooted at the hearing of Judge Holmes on 5 July 2024. In compliance with Judge Holmes’ order Mrs Thoburn provided the proposed respondents’ addresses on 8 July 2024, which was prompt. So, if we start counting from 5 July 2024 as the proposed amendment then these claims range from almost from 3¾ years to almost 4 years old. This is between 33 and 35 months. So, if I give Mrs Thoburn the benefit of the doubt and assume the various detriments and less favourable treatment forms part of a pattern of various retaliative/discriminatory/less favourable treatment towards Mrs Thoburn then Mrs Thoburn was at least 30 months out of time in respect of all of these complaints.

[38]Mrs Thoburn had known of the detriments straight away; she did not discover new facts subsequently or during disclosure. I note time limits for raising complaints should be regarded as strict although this can be alleviated by a flexible discretion for the whistleblowing claims and a wider, and possibly generous, discretion for the other claims.

[39]Possible recourse through the employment tribunal is sufficiently well known that, save as exceptional circumstances, ignorance of such remedy will not be accepted as an excuse (see for example Reed in Partnership Ltd v Fraine

UKEAT/0520/10

). Generally, the question in all cases is whether the claimant ought to have known of her rights and I am satisfied that Mrs Thoburn ought to have known of her rights to proceed against Ms Nuttall and Mr Cunningham.

[40]So far as Mrs Thoburn’s learning difficulties. Mrs Thoburn said that she was under investigation for ADHD, which I am aware is a multilayered condition. Mrs Thoburn referred to a report from Ms Gemma Spavin who is a specialist teacher in dyslexia. I have only been provided with part of the report, as the bulk of the report has not been disclosed and what bit was provided contains most of the page apparently blanked out. I do not know if Ms Spavin is qualified to formally assess any condition other than dyslexia, although I assume that she can formally assess dyslexia. The small section of the report that could be relevant confirms that Mrs Thoburn did not present with dyslexia. The report did go on to say that Mrs Thoburn presented with a specific learning difficulty associated with processing speed. I am satisfied that any learning difficulty associated with processing speed did not preclude Mrs Thoburn raising her application to add 2 respondents to her claim more than 3½ years out of time. Additionally, at the hearing I gave Mrs Thoburn ample time to process what was written in the bundles and what was said to her and furthermore extensive latitude in making her arguments.

[41]Mrs Thoburn’s correspondence with the tribunal was copious and meticulous, so I am satisfied that her processing difficulties were not a significant impediment. Her purported neurodiversity was never contended to be an obstacle to research on the internet or visiting a library, Citizens Advice Bureau, Law Centre or seeking advice through a trade union or solicitor or other legal professional. Even if Mrs Thoburn could not have done this there was no reason why her adult children, husband or partner, other family member or friend could not assist.

[42]I am entirely satisfied that Mrs Thoburn had the opportunity to think about the claims she pursued at the earliest opportunity, through early conciliation, issuing proceedings and following the Response. Prior to the first case management hearing in February 2022 the parties were both sent and then prepared a very lengthy agenda which asked the for clarification of the parties and specifically asked if any respondent should be joined. This is another significant trigger, which was ignored by Mrs Thoburn. The claimant identified some possible claims and gave no indication that she wanted to pursue any claims against the respondent, despite being asked. Indeed, as her claims were vague and confusing, various employment judges at the at the 5 preliminary hearings have sought to clarify the claims she wanted to pursue. I am entirely satisfied that Mrs Thoburn thought carefully about her claims and Mrs Thoburn failed to take advantage of these numerous triggers, until such an extraordinary late stage in proceedings.

[43]Mrs Thoburn said that she did not that she could pursue a claim against the Ms Nuttall and Mr Cunningham until almost 4 years later when this was raised by Judge Holmes. I asked Mrs Thoburn that if it had not been for Judge Holmes raising the possibility of pursuing individual respondents would she have made this application and Mrs Thoburn confirmed in the affirmative. She referred to an email of 6 November 2023 in which she sought to add the dormant company. This was an indication, she said, that she was keen to pursue a remedy. The first amendment application was refused on 12 January 2024, yet no further activity happened in respect of these possible respondent(s) until Judge Holmes’ intervention 6 months later.

[44]Proceeding against Ms Nuttall and Mr Cunningham was brought on by discussions of possible compensation. So the remedy the claimant seek is overwhelmingly motivated by money and not based on any principal stance. As these are the third and fourth pursued respondent, I think there might be credence in the observation that Mrs Thoburn maybe shopping around for people to sue. That said, the respondent went into voluntary liquidation on or around 1 March 2024. Mrs Thoburn said that she knew about the respondent’s voluntary liquidation fairly promptly, from 31 March 2024. Yet I am surprised that for a claim already going through proceedings for well over 3½ years nothing happened in April 2024, May 2024 and June 2024. This second delay for another further period, over 3 months particularly following the previous amendment application of January 2024, were significant factors in my deliberation.

[45]There is no presumption that the tribunal should extend time, it is for Mrs Thoburn to persuade me (i.e. the Tribunal) that there are sufficient grounds for me to exercise my discretion on just and equitable basis: see Robertson v Bexley Community Centre

[2003] IRLR 434

. The fact the claimant has brought proceedings against one respondent already means I must decide whether it is just and equitable to extend time in each case separately (see Harden v Wootlif & ano

UKEAT/0448/14

) and that will be more difficult to justify in the subsequent cases, particularly when this is the second attempt to and further respondents.

[46]It is important to consider the Selkent factors in the context of the balance of justice. For example, 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. 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. A late amendment may cause prejudice to the respondent because it is more difficult to respond to and results in unnecessary wasted costs. No one factor is likely to be decisive, and the balance of justice is always key.

[47]A balancing exercise always requires express consideration of both sides of the ledger, both quantitatively and qualitatively. It is not merely a question of the number of factors, but of their relative and cumulative significance in the overall balance of justice where the prejudice of allowing an amendment is additional expense, consideration should be given as to whether the prejudice can be ameliorated by an award of costs, provided that the other party will be able to meet it

[48]There is some force in the respondents’ contention that Mrs Thoburn ought to have been aware of possible claims against Ms Nuttall and Mr Cunningham from the outset, but also through the early conciliation process and when she issued proceedings. These were 3 opportunities and there were numerous further opportunities for Mrs Thoburn during her preparation for case management hearing, at the hearings themselves and thereafter.

[49]There was a seminal opportunity to name individuals and make this application in November 2023 when the claimant chose to pursue a dormant company. Yet she chose not to pursue this at that time.

[50]In respect of prejudice, (if she wins) the claimant might be denied a remedy for these proposed claims against Ms Nuttall and Mr Cunningham. Yet she does have the satisfaction of successfully suing her employer as a judgment in default has been issued against her initial respondent of choice. In respect of remedy, I accept there will be difficulties in obtaining any possible future compensation because of the company’s voluntary liquidation but unfortunately that is a frequent occurrence in employment tribunal cases.

[51]The prejudice to the respondents is considerable. Documents have not been agreed indeed that has been a continual source of rancour for the last few years. I am advised that statement have not been taken from the proposed new respondents, and I accept that memories fade. I accept that there is considerable prejudice to the proposed new respondents as despite the plethora of documents, documents may not be determinative for the nuances and recollections of personal exchanges.

[52]It has not been confirmed whether or not Ms Nuttall and Mr Cunningham were company directors at the relevant times of these complaints, if they were not then the forensic prejudice is overwhelming. If they were not, the prejudice may be lessened by their knowledge and possible involvement in these proceedings but, I emphasise it is profoundly different being cast in the role of a individual respondent.

[53]I take into account that Mrs Thoburn has been in significant breaches of employment tribunal orders and that this was to the extent that warnings were given and hearings were listed to consider striking out her case for non-compliance.

[54]There is some degree of prejudice for Ms Nuttall and Mr Cunningham if parties cannot rely on the applicability of clear presumptive time limits. The current respondent’s defence was struck out when its representatives absented themselves from proceedings so I accept that there is some force in Ms Acheampong argument that the tribunal should be seen to be even handed.

[55]The respondent’s representative complained of Mrs Thoburn’s bad behaviour She contended that Mrs Thoburn had been stalking and verbally abusing Ms Nuttall and Mr Cunningham online. I am aware that there is material in the file referencing this, and the fact that the claimant has involved the police, but I make no findings in respect of who is to blame (if anyone). I do recognise however, that the claimant has taken matters personally and these have blown out of all proportion. Refusing this application might placate matters, but irrespective of placating matters, I am reluctant to expose Ms Nuttall and Mr Cunningham to ongoing proceedings without compelling reasons.

[56]The case is factually complicated and would require a multiday hearing, 4 days at least but now likely to be more. If the case was straightforward then it might be heard in 18 months or so. Well over 5 years after the events. Witness statements can only go so far, so cross-examination and tribunal questioning of all parties is key and the time elapsed would render this seriously questionable. Proceedings have been going on for almost 4 years and Ms Acheampong said that was largely due to the claimant’s disruption. If the past is an indication for the future, then it is highly, highly unlikely that this case will be heard within 5 to 6 years and that is fatal for witness availability and recollections in a fact sensitive dispute such as this.

[57]Of no insignificant matter, given the nature of the proceedings so far and the likely future course of proceedings, the costs of this case is likely to be astronomical for Ms Nuttal and Mr Cunningham. It is not possible to predict an accurate forecast because of the length of time proceedings have taken so far with only 1 respondent. Mrs Thoburn had not indicated that she would accept responsibility for costs that might be incurred as a result of permitting the amendment. This is a compelling factor.

[58]Finally, I said to the parties that I cannot determine whether the allegations against Ms Nuttall and Mr Cunningham have merit or not following judge Slater’s letter of 21 January 2025. Many of these claims are double counted despite appearing to be mutually exclusive and that might undermine the veracity of the allegations. None of the claims involve foul language, touching or assaults or other harassment which could render a public interest in the new claims being ventilated. Whilst the new claims are not trivial, they are not so serious as to persuade me to exercise my discretion in line with TGWU v Safeway Stores.

[59]For the reasons above I refuse the amendment. I am clear that this application has no merit. Future conduct of proceedings

[60]The case was listed to determine the above matter, and then a possible strike out application by the respondents followed by further case management. I believe the respondent’s application to strike out now falls away because the amendment application was refused. The case will now be listed for further hearing before any judge. I direct that this will be a final hearing but if this hearing cannot finally resolve matters, I give the judge flexibility to address any further matters s/he feels relevant, as it will be a public hearing. So, I list this for 3 hours. This is in line with the over-riding objective.

[61]If Mrs Thoburn wants to seek possible compensation (remedy), then she should prepare an updated schedule of documents for this hearing together with corroborating correspondence and documents that support her claim for compensation against the current respondent. Refer to previous case management orders for appropriate guidelines. Please provide a copy of all documents that Mrs Thoburn intends to rely upon to the liquidator direct or to the company’s former registered address. Please provide these documents 14-days in advance of the next hearing. Mrs Thoburn will be required to bring another set of remedy document together with her updated schedule for use by the employment judge.

[62]Mrs Thoburn has asked for a review of this decision, and that she will consider such application and confirm if she wishes to proceed following receipt of these written reasons. Any review will be addressed by me (as the presiding judge) separately – either in writing or through a discrete hearing. Approved by