Miss L Horne v ASDA Stores Ltd: 2602648/2018
REASONS
[4]The respondent submitted that the name of the respondent should be changed to ASDA Stores Limited as that is the company that employs the claimant. The claimant told me that her contract of employment states that ASDA Stores Limited is her employer, but that her place of work is ASDA IDC.[5]In light of the claimant’s acceptance that ASDA Stores Limited is her employer, the name of the respondent is changed to ASDA Stores Limited. Joining Emma Simes as a respondent to the proceedings 1 of 10[6]The claimant applied to join Emma Simes as a respondent to the proceedings. In the ‘Scott Schedule’ completed by the claimant following the last Preliminary Hearing, she only identified one incident involving Emma Simes, an incident that the claimant alleges took place on 29 May 2018 and in respect of which the claimant identifies two alleged discriminators, one of whom is Ms Simes.[7]Miss Firth told me that she was instructed to represent Ms Simes as well as the respondent, and that her instructions were to oppose the application to join Ms Simes as a party. She submitted that the only allegation made against Ms Sime was in relation to an incident on 29 May 2018 which was significantly out of time, the claim form having been presented on 23 November 2018. The details of that incident were, she submitted, vague, and the claimant would still be able to pursue that allegation against the respondent if Ms Simes were not joined as a party.[8]Guidance Note 1 of the Presidential Guidance – General Case Management (2018) contains guidance for employment tribunals considering amendments of claims and responses, including on the addition and removal of parties. Paragraph 17 states that: “Asking to add a party is an application to amend the claim. The Tribunal will have to consider the type of amendment sought. The amendment may deal with a clerical error, add factual details to existing allegations, or add new labels to facts already set out in the claim. The amendment may, if allowed, make new factual allegations which change or add to an existing claim. The considerations set out above in relation to amendments generally apply to these applications.[9]Paragraph 4 of the Guidance Note provides that “In deciding whether to grant an application to amend, the Tribunal must carry out a careful balancing exercise of all of the relevant factors, having regard to the interests of justice and the relative hardship that will be caused to the parties by granting or refusing the amendment.”[10]Relevant factors are set out in paragraph 5 of the Guidance Note and include: the nature of the amendment, time limits, and the timing and manner of the application.[11]Rule 34 of Schedule 1 to the Employment Tribunals (Constitution & Rules of Procedure) Regulations 2013 (“the Rules”) provides as follows:- “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, and may remove any party wrongly included.[12]In reaching my decision on the application to add Ms Simes as a party to the proceedings I have taken account of the guidance in Selkent Bus Co. Ltd v Moore [1996] ICR 836. I have also balanced the interests of and relative 2 of 10 hardship to both parties in allowing or refusing the application, and considered the interests of justice.[13]The claim against Ms Simes is significantly out of time and no explanation has been provided by the claimant for not including her as a party earlier. I am conscious of the potential implications for Ms Simes of being joined as a party to the claim, and also of the fact that if Ms Simes is not joined, the claimant still has a live claim and potential remedy against the respondent, her employer. There only appear to be one, or at most 2 allegations against Ms Simes.[14]The interests of justice in my view favour not joining Ms Simes as a party, and my decision therefore is that she should not be joined, and the claim should proceed against the respondent only. Application to amend[15]The respondent submitted that some of the allegations contained within the claimant’s Scott Schedule were new allegations which required an application to ament the claim.[16]In particular, Miss Firth argued that the allegations contained within paragraphs 4.1, 4.6, 4.7, 4.8, 4.11 and 4.13 – 16 of the Draft List of Issues sent by the respondent’s solicitors to the Tribunal on 15th October 2019 were new allegations.[17]These allegations are, in Miss Firth’s submissions, more than merely a relabeling of existing claims but were new factual allegations which amount to new claims and which involve new alleged discriminators. The balance of hardship is, in her submission, greater against the respondent than the claimant if the new allegations are allowed in.[18]Having considered Miss Firth’s submissions, the Presidential Guidance and the Selkent factors, I decided to allow the application to amend, save in relation to the allegation at paragraph 4.1 of the Draft List of Issue which relates to an incident in 2016 and which is significantly out of time.[19]It seems to me that the other amendments do not substantially change the claim – they are rather the addition of factual allegations to existing complaints of discrimination. The claimant is a litigant in person, and the amendments have been made at an early stage in the proceedings.[20]For the above reasons, it is my decision that all of the amendments should be allowed save that relating to the alleged incident on 13 January 2016.The issues
[1]Amendment 1.1 By consent, the respondent’s name is amended to ASDA Stores Limited.[2]Judicial mediation 2.1 The parties are referred to the “Judicial Mediation” section of the Presidential Guidance on ‘General Case Management’, which can be found at: www.judiciary.gov.uk/publications/employment-rules-and-legislation-practicedirections/. Both parties are interested in judicial mediation and the case file will be passed to the Regional Employment Judge for a decision as to whether to offer them judicial mediation. If they change their minds, they must inform each other and the tribunal of this as soon as possible.[3]Complaints and issues 3.1 The parties must inform each other and the Tribunal in writing within 14 days of the date this is sent to them, providing full details, if what is set out in the Case Management Summary section above about the case and the issues that arise is inaccurate and/or incomplete in any important way. 7 of 10[4]Statement of remedy / schedule of loss 4.1 The claimant must provide to the respondent by 31st October 2019 a document – a “Schedule of Loss” – setting out what remedy is being sought and how much in compensation and/or damages the tribunal will be asked to award the claimant at the final hearing in relation to each of the claimant’s complaints and how the amounts have been calculated.[5]Documents 5.1 On or before 31 July 2020 the claimant and the respondent shall send each other a list of all documents that they wish to refer to at the final hearing or which are relevant to any issue in the case, including the issue of remedy. They shall send each other a copy of any of these documents if requested to do so.[6]Final hearing bundle6.1 By 14 August 2020 the respondent shall send to the claimant a draft index to a bundle of documents to be used at the final hearing.6.2 By 28 August 2020 the parties shall agree a bundle of documents for use at the final hearing. The respondent must paginate and index the documents, put them into one or more files (“bundle”), and provide the claimant with a ‘hard’ and an electronic copy of the bundle by the same date. The bundle should only include documents relevant to any disputed issue in the case and should only include the following documents:• the Claim Form, the Response Form, any amendments to the grounds of complaint or response, any additional / further information and/or further particulars of the claim or of the response, this written record of a preliminary hearing and any other case management orders that are relevant. These must be put right at the start of the bundle, in chronological order, with all the other documents after them;• documents that will be referred to at the final hearing and/or that the Tribunal will be asked to take into account. In preparing the bundle the following rules must be observed:• unless there is good reason to do so (e.g. there are different versions of one document in existence and the difference is relevant to the case or authenticity is disputed) only one copy of each document (including documents in email streams) is to be included in the bundle• the documents in the bundle must follow a logical sequence which should normally be simple chronological order.[7]Witness statements 8 of 10 7.1 The claimant and the respondent shall prepare full written statements containing all of the evidence they and their witnesses intend to give at the final hearing and must provide copies of their written statements to each other on or before 9 October 2020. No additional witness evidence will be allowed at the final hearing without the Tribunal’s permission. The written statements must: have numbered paragraphs; be cross-referenced to the bundle; contain only evidence relevant to issues in the case. The claimant’s witness statement must include a statement of the amount of compensation or damages they are claiming, together with an explanation of how it has been calculated.[8]Final hearing preparation 8.1 On the working day immediately before the first day of the final hearing (but not before that day), by 12 noon, the following parties must lodge the following with the Tribunal:8.1.1 four copies of the bundle, by the respondent;8.1.2 four hard copies of the witness statements (plus a further copy of each witness statement to be made available for inspection, if appropriate, in accordance with rule 44), by whichever party is relying on the witness statement in question;8.1.3 three hard copies of the following, agreed if possible, by the respondent – a neutral chronology and a ‘cast list’.[9]Other matters9.1 The above orders were made and explained to the parties at the preliminary hearing. All orders must be complied with even if this written record of the hearing is received after the date for compliance has passed.9.2 Anyone affected by any of these orders may apply for it to be varied, suspended or set aside. Any further applications should be made on receipt of these orders or as soon as possible.9.3 The parties may by agreement vary the dates specified in any order by up to 14 days without the tribunal’s permission except that no variation may be agreed where that might affect the hearing date. The tribunal must be told about any agreed variation before it comes into effect.9.4