Miss L Thompson v UV Tanning Lounge Ltd: 2603497/2019
EMPLOYMENT TRIBUNALS
Case No 2603497/2019
Between
Miss L ThompsonClaimantUV Tanning Lounge LtdRespondent
Before
Employment Judge DyalMr Fireman (instructed by Counsel) for claimantMr Grey-Jones (instructed by Counsel) for respondentDate 4 March 2021
JUDGMENT
[1]The application to amend is allowed save as follows (paragraph references are to the Further and Better Particulars dated May 2020): 1.1. PCP at para 34(a): withdrawn 1.2. PCP at para 34(c): allowed only as truncated by striking through the words “with employees prone to depressive symptoms” 1.3. PCP at para 34(d): permission refused 1.4. The “something” arising in consequences of disability at para 36(b): withdrawn 1.5. The “something” arising in consequences of disability at para 36 (c): permission refused1 1.6. The “something” arising in consequences of disability at para 36 (d):[2]It is just and equitable to extend time in respect of the claims added by amendment. 1 I accidentally omitted to refer to this in my unreserved judgment. I correct that omission here pursuant to rule 69. Page 1 of 12
REASONS
Written reasons were requested in accordance with Rule 62(3) of the Employment Tribunals Rules of Procedure 2013.
Introduction
[1]The matter came before the tribunal to decide the Claimant’s application to amend made on 26 May 2020. In the course of deciding that application it was necessary to consider time limits and whether, in particular, it was just and equitable to extend time.
The hearing
[2]The hearing was conducted by videolink using CVP. The technology worked very well. At the outset of the hearing I asked Mr Fireman whether he was proposing to call the Claimant to give evidence and he ultimately said that he was. No witness statement had been prepared so this necessarily would involve an oral examination-in-chief. I asked Mr Jones-Grey what his position was. He was content for the Claimant to give evidence so long as he had the benefit of a short adjournment after her evidence-in-chief should he need one. I agreed to hear evidence from the Claimant on that basis.[3]The Claimant gave evidence on oath. At the conclusion of her evidence-inchief Mr Jones-Grey indicated that he only needed a few moments (which I gladly gave him) before being ready to cross-examine. At the outset of crossexamination Mr Jones-Grey referred the Claimant to her claim form. Unfortunately, she did not have a copy of it. I asked Mr Jones-Grey what other documents he would want to take the Claimant to. There was just one other, the application to amend. We then took an adjournment for Mr Fireman to email the Claimant copies of those documents and to give her time to reread them. This took about 25 minutes. When we resumed the Claimant had the documents in front of her and Mr Jones-Grey was able to cross examine upon them.
Findings of fact
[4]I heard detailed submissions from both counsel which I considered with care. I note that Mr Jones-Grey, who represented the Respondent with conspicuous ability, also produced a careful skeleton argument which set out his submissions in summary.[5]I gave my judgment with reasons orally at the hearing. Findings of fact[6]My findings of fact are not very detailed because the evidence I heard was short and somewhat sparse.[7]The Claimant was employed by the Respondent as a salon manager having previously been a company director of it. From her point of view there were significant employment problems. These became more serious from May Page 2 of 12 2019 onwards. Matters came to a head on 2 October 2019 when the Claimant resigned with effect from 4 October 2019.[8]The Claimant contacted ACAS on 25 October 2019, which was Day A for the purposes of Early Conciliation (EC) and received the EC certificate on 18 November 2019 (Day B).[9]The claim form was presented on 2 December 2019. The Claimant drafted it herself without assistance. At section8.1 she ticked boxes indicating that she complained of discrimination on grounds of marriage or civil partnership and no other boxes. She gave a narrative at box8.2 and box 15 which bear careful reading.[10]The Claimant took legal advice for the first time in late April or early May 2020 when she instructed Lawson West solicitors. There was a short delay in order to obtain medical records and other documents. An application to amend was made on the Claimant’s behalf on 26 May 2020 which enclosed detailed Further and Better Particulars of Claim (‘FBPs’) which comprise the proposed amendment.[11]The Claimant’s evidence today focused mainly upon why she did not bring a disability discrimination complaint when she presented her claim.[12]I find that the main reason was that the Claimant was acting without the benefit of legal advice. Her evidence, which I accept, was to the effect that she had very little knowledge of the employment tribunal or employment law. The only reason she knew to contact ACAS was because some colleagues told her that the way she was treated was not right and that this was the appropriate course.
Law
[13]The essential reason why she did not include a complaint of disability discrimination in her claim form is that she did not have a sufficient understanding of the law to appreciate that this was something that might apply to her. It was not a question of accidentally ticking the ‘marriage or civil partnership’ box instead of the ‘disability’ box at 8.2. It was a failure to appreciate, because of a lack of knowledge of the law, that the disability box was the more fitting one to tick or that it would be fitting to tick it in addition to the boxes that she did tick.[14]This also explains why in the narrative of box 8.2, despite a mental health condition being described that could readily be characterized as a disability, it was not (this is not a finding that the Claimant was/is a disabled person within the meaning of the Equality Act 2010, merely an observation about the pleading). And it also explains why, despite a nexus identified in the narrative between the mental health condition and the treatment, no complaint of any form of disability discrimination was made in terms.[15]In her evidence, the Claimant added, and placed significant emphasis upon, mental health. Her evidence was to the effect that from May 2019 onwards, she was very unwell, suffering significant mental health problems. She said that they were sufficiently bad that she was not leaving the house or socializing. Page 3 of 12[16]This was, she said, not only the reason why she did not tick the disability box when she lodged her claim, but also the reason why she did not seek legal advice and assistance until around April or May 2019.[17]Unfortunately, there was no medical evidence before the tribunal. Mr JonesGray suggested at one point in cross-examination that this was a choice that had been made because the medical records would show that they did not support the Claimant’s case. However, I reject any suggestion that the records were suppressed/not relied upon because they were considered unhelpful. Rather, I accept the Claimant’s evidence which was essentially that: there are medical records evidencing mental ill-health; she gave them to her solicitor; she put the conduct of the case in her solicitors hands; she was told by her solicitor that such records would not be needed today; the records would be needed later in the litigation if the application to amend were allowed. I found the Claimant’s evidence on this point, and generally, entirely credible.[18]I accept that that the Claimant has given a truthful account of her mental health condition from her subjective perspective. However, for two reasons I do not think that I can make any meaningful assessment of the extent of her mental health problems during the relevant period. Firstly, because no medical evidence is before me. Secondly, because the Claimant’s evidence did not fill the gaps left by the absence of medical evidence. It was brief and did not go into details such as, the types of clinicians she saw, when, what diagnosis and prognoses they made/gave, what treatments they recommended etc. Submissions[19]Mr Fireman submitted that the application to amend was a mere relabelling of the existing claim and on that basis should be allowed without difficulty. In the alternative, he submitted that the balance of hardship favoured allowing the amendment, that the application was promptly made, that from a limitation perspective the delay was quite short and well explained and time should be extended.[20]At the conclusion of his oral submissions I invited his response to the points that Mr Gray-Jones made in his skeleton argument, particularly on the merits of the case and their relevance as a factor. In the course of his submissions thereafter Mr Fireman streamlined the Claimant’s case by accepting that a few paragraphs of the FBPs lacked merits and were not pursued (or in one case was pursued in a truncated way), namely: 20.1. The provision, criterion or practice (PCP) at paragraph 34(a) was withdrawn; 20.2. The PCP at paragraph 34(c) was truncated by striking through words “with employees prone to depressive symptoms”; 20.3. The PCP at para 34 (d) was withdrawn; 20.4. The ‘somethings’ arising from disability at para 36 (b) and (d) were[21]Mr Gray-Jones’ spoke to his skeleton argument which summarises the thrust of the submissions he made orally. I see no value therefore in summarising Page 4 of 12 them here other than to observe that I found them to be both helpful and skillful. Discussion and conclusions[22]The tribunal has a discretion to allow applications to amend. In Selkent Bus Co Ltd v Moore [1996] ICR 836, Mummery J, gave guidance as to the main factors that need to be considered when considering an application to amend. This guidance, which has itself been explained in subsequent case-law, continues to provide a very helpful structure for decision making. The keyfactors are: 22.1. Nature of the proposed amendment; 22.2. Timing and manner of the application to amend; 22.3. Applicability of time limits; 22.4. The balance of hardship.[23]I should explicitly add that Mr Gray-Jones submitted that merits can be a relevant factor. I agree, see Gillett v Bridge 86 Ltd UKEAT/0051/17/DM. Nature of the proposed amendment[24]In Abercrombie and others v Aga Rangemaster Ltd [2014] ICR 209 Underhill LJ, with whom the rest of the Court agreed, held at para 48 that: “…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 inquiry than the old: the greater the difference between the factual and legal issues raised by the new claim and the old, the less likely it is that it will be permitted. It is thus well recognised that in cases where the effect of a proposed amendment is simply to put a different legal label on facts which are already pleaded permission will normally be granted.”[25]Mr Fireman’s primary case is that the proposed amendment is a mere relabelling of the existing claim. I do not agree. I think it is true to say that the Claimant’s FBPs include a relabelling of some of the facts referred to in the claim form, but it is obvious that they go significantly beyond that. This is not a mere re-labelling case.[26]On the other hand, I do not accept Mr Gray-Jones’ case at its height either. At times his submissions implied that nothing beyond allegations of bad treatment because of marriage/civil partnership could be discerned from the facts pleaded. In particular, he suggested that the original claim did not make a causative link between the Claimant’s mental ill-health and her treatment. I think this is equally clearly wrong.[27]Shortly stated, my analysis is as follows: 27.1. The original claim form comes close to but does not raise a complaint of disability discrimination; Page 5 of 12 27.2. The original claim form does refer to significant mental ill-health at a level that is consistent with potentially being disability within the meaning of s.6 Equality Act 2010; 27.3. The original claim form does suggest a causative link between that illhealth and ill-treatment. For instance it says: “I feel that My Baylis used my poor mental health to finally force me into a corner as he did not want me to have time off work and nor did he want to pay me statutory sick pay as Mr Baylis has always refused to pay staff if they are ill. I had no other choice as I wasn't well enough to do another business for him upstairs.” This broadly hints at some sort of a disability discrimination claim perhaps one by reference to s.15 Equality Act 2010 claim; 27.4. The original claim form does indicate clearly in the narrative that there were mental health problems that made working more difficult and that support with work was wanted but not given. This broadly hints at some sort of a s.19 and/or s.20 Equality Act 2010 claim. 27.5. The FBPs add new facts, matters and causes of action that will add materially to the legal and factual issues that need to be adjudicated upon. The various limbs of the disability discrimination claims that have been invoked in the FBPs inevitably and necessarily mean that a broader and more intense factual and legal inquiry is needed than would have been needed to adjudicate on the claim as originally pleaded. The length of the hearing will require a short extension. There may also need to be a PH dealing with disability status and, even if no PH is needed, certainly work will need to be done to deal with that issue. 27.6. However, the new factual and legal issues are undoubtedly closely related to matters raised, albeit in a summary fashion typical of drafting by a litigant in person, in the original claim. Timing and manner of the application[28]The application is made at an early stage of proceedings, many months before trial, on notice and in writing. The application was made suitably swiftly once the need for it was appreciated i.e., upon instructing solicitors. Time limits[29]The relevance of time limits to applications to amend is summarised by Underhill LJ in Abercrombie and others v Aga Rangemaster Ltd [2014] ICR 209 where he said this at [50]: “Mummery LJ says in his guidance in Selkent Bus Co Ltd v Moore [1996] ICR 836 that the fact that a fresh claim would have been out of time (as will generally be the case, given the short time limits applicable in employment tribunal proceedings) is a relevant factor in considering the exercise of the discretion whether to amend. That is no doubt right in principle. But its relevance depends on the circumstances. Where the new claim is wholly different from the claim originally pleaded the claimant should not, absent perhaps some very special circumstances, be permitted to circumvent the statutory time limits by introducing it by way of amendment. But where it is closely connected with the claim originally pleaded – and a fortiori in a relabelling case – justice does not require the same approach.” Page 6 of 12[30]In this case, in my view the matters set out in the FBPs are closely connected with claim originally pleaded. Technically speaking it might be argued that it is not strictly necessary for me to be satisfied that time should be extended as a condition of allowing the amendment.[31]However, in practice, I think this is a case in which I can and should deal with time limits. This case is not a mere relabelling case and because the FBPs do go some way beyond the original claim (increasing the scope and complexity of the inquiry) this is not one of those cases in which time-limits are a lightweight factor. It is a case in which, I think, time limits are a material factor. Accordingly, I have felt it necessary to consider time limits.[32]The complaints sought to be added by amendment are brought outside the primary limitation period set by s.123 EQA 2010, even if there was conduct extending over the period May 2019 to 4 October 2019, and even having regard to s.140B EQA 2010 which extends the time limit.[33]Time can only be extended if the tribunal considers that it is just and equitable to do so. This is a broad test where the onus is firmly on the Claimant.[34]As made clear in Rathakrishnan v Pizza Express (Restaurants) Ltd [2016] ICR 283, the test is a multifactorial one in which the explanation for delay is an important factor.[35]In British Coal Corporation v Keeble [1997] IRLR 336) the EAT gave guidance as to potentially relevant factors and I think those factors, whilst not a straightjacket, provide a useful framework here. - The length of and reasons for the delay:[36]The Claimant contacted ACAS on 25 October 2019, which was Day A for the purposes of Early Conciliation (EC) and received the EC certificate on 18 November 2019 (Day B). The claim form was presented on 2 December 2019. The period of complaint is May – 4 October 2019. It is a moot point when during that period, time began to run. Wherever, in that period, time began to run (and it may have begun to run at different times for different complaints) the period of delay is substantial, particularly when one has regard to the fact that the limitation periods in the ET are short. However, for the avoidance of doubt, my decision is the same whether time began to run at the beginning, middle or end of the May – 4 October 2019 period, whilst appreciating (as I do) that the earlier in that period it began to run, the longer the delay.[37]The delay is tempered to a degree by the fact that a claim was lodged on 2 December 2019, which factually raised the essence of what is complained of in the FBPSs albeit with much less detail. This therefore put the Respondent on notice of issues factually closely connected to those raised in the FBPs. It also put the parties on a litigation footing with all that involves (e.g. instructing solicitors, preserving documents etc).[38]The reason for the delay, essentially, is that the Claimant was acting as a litigant in person and had limited knowledge and understanding of the employment tribunal and employment law. Also, although there were on the Page 7 of 12 Claimant’s case significant problems from May 2019 onwards, they did not come to a head until early October 2019 when she resigned.[39]Overall, I consider that this is not in the category of being a compelling explanation. It is certainly fair and important to observe that time limits apply to litigants in person and apply to complaints that arise during the currency of employment. On the other hand, it is very far from being in the worst category of explanations either. Firstly, it is an honest explanation and secondly, however common it may be, it is challenging to be a litigant in person and disability discrimination is a particularly challenging part of employment law. I find it understandable that the Claimant did not herself appreciate that she might have disability discrimination claims based on the facts as she saw/knew them. Likewise I find it understandable that she did not take any action until matters had come to a head and she had resigned.[40]For the reasons set out above I do not think I can give any weight to mental health problems as excusing/explaining the delay. - The extent to which the cogency of the evidence is likely to be affected by the delay.[41]I listened carefully to Mr Gray-Jones’ submissions to discern if it was suggested that this factor was in play. He did not submit that it was. I think that is realistic in all the circumstances. - The extent to which the party sued had co-operated with any requests for information.[42]This is not a relevant factor in this case. - The promptness with which the claimant acted once she knew of the possibility of taking action[43]The Claimant contacted ACAS swiftly after the termination of her employment on the advice of colleagues. She presented a claim as best she could acting in person within an appropriate period of contacting ACAS. - The steps taken by the claimant to obtain appropriate professional advice once they knew of the possibility of taking action.[44]The Claimant did not seek legal advice until around April or May 2019 and put this down primarily to her medical condition.[45]However, based on the evidence before me, given that the Claimant was able to contact ACAS in October and present her claim in December, and given the lack of medical evidence, I do not think I can accept that her medical condition was a barrier to seeking legal advice more swiftly.[46]Thus, I must conclude on the evidence before me that the Claimant did not seek legal advice as quickly as she might have. If she had sought it more swiftly it is likely that a claim of disability discrimination would have been made more swiftly. Balance of prejudice Page 8 of 12[47]This is an important factor in the just and equitable test. As set out further below I think there is prejudice to both parties if I determine the application against them. However, I think the prejudice is much greater if I determine the application against the Claimant. Since this factor is essentially the same as the final factor in respect of amendment applications (balance of hardship) I will set out my thoughts and conclusions in conjunction with that issue.[48]To foreshadow my conclusions: for reasons explained below, I think it is just and equitable to extend time. Balance of hardship/prejudice - The prejudice to the Claimant[49]If I refuse the application to extend time/amend, the prejudice to the Claimant is severe. If I do not allow the applications, at least in part, she will be shut out of the tribunal system in respect of the complaints she has about her employment with the Respondent.[50]The complaints about marriage and civil partnership are not sustainable, are not viable and the Claimant has no wish to pursue them (they were withdrawn today).[51]Mr Gray-Jones contends that there is no prejudice to the Claimant because her complaints are hopeless and it is at this juncture that he contends therefore that the merits of the claims are relevant.[52]I agree that merits - generally - can be taken into account upon an application to amend/to extend time. However, I think, with two exceptions, the claims as streamlined by Mr Fireman in submissions, are arguable and have sufficient merit that the Claimant would be prejudiced in the way I have suggested if not permitted to pursue them.[53]In order to avoid the possibility of embarrassing the tribunal at trial, I will keep my reasons here as brief as I can whilst nonetheless making clear why I have reached the conclusions I have.[54]Mr Gray-Jones, attacked the PCPs at paragraph 34 of the FBPs: 54.1. PCP(a): was withdrawn by Mr Fireman, so I need say nothing more. 54.2. PCP(b): It is said to be too vague and to require further particularisation. I do not agree. I think, especially when it is read together with the factual narrative in the FBPs which give it colour, it is intelligible not “meaningless” as suggested. In case I am wrong on that (and similar points below), I note that Mr Jones-Gray submitted that if a matter requires further particularisation it would be wrong in principle to allow permission to amend. I think the law is more nuanced and flexible and it is a question of degree. At one end of the spectrum where it is not possible to discern even the general nature of the claim being made then surely it would be wrong to allow the proposed amendment. At the other end of the spectrum, where the thrust of the complaint is clearly seen but a bit more detail would be helpful, I cannot see why the Page 9 of 12 tribunal must reject the proposed amendment. I would agree, though, that the need for further particulars would be a relevant factor to take into account and weigh. So if I am wrong and the PCP does require particularisation with some further detail, then my view is that that is no more than a factor. In the circumstances of this case it would not be a weighty factor that would tip the balance because I do not think it would be at all difficult to ask for and get further particulars. This is not one of those cases in which there have been many (or as far as I know any) prior unanswered requests for further particulars. 54.3. PCP(c): the main target of Mr Jones-Grey’s submissions in relation to this related to the words “with employees prone to depressive symptoms” which Mr Fireman rightly withdrew. Mr Jones-Grey also submitted that there was not a properly pleaded case that the Respondent applied the PCP. I do not really follow that or accept it. Simply: at paragraph 34(c) FBPs the Claimant pleads the PCP. 54.4. PCP(d): I agree that this PCP is vague. I also do not think it adds anything of value to the claim that is not otherwise covered elsewhere. So I see no point in allowing an amendment in relation to it and no prejudice to the Claimant if I refuse it. So I refuse it. 54.5. PCP(e): the complaint here is that the PCP is not sufficiently particularised. My analysis is the same as the analysis at PCP(b). A further complaint is that a PCP must be a “continuum” i.e., not a one-off. I agree that there is authority to that effect (though there is also authority to the opposite effect). The important point is that the Claimant is alleging a “continuum”. She clearly complains that over a period of time she was required to work whilst experiencing serious mental health problems. She is not complaining of a one-off incident.[55]Mr Gray-Jones further submits that the application to amend should be refused because the Claimant has not clearly linked the PCPs to the substantial/particular disadvantages complained of. I do not agree. My reading of paragraph 35 of the FBPs is that the Claimant says that PCPs caused the substantial disadvantages listed. It is true that she has not said which PCP caused which disadvantage. But I think the sense of the pleading is that the Claimant is essentially averring that the PCPs individually or cumulatively caused the disadvantages or any one or combination of them. Given Ministry of Defence v DeBique (UKEAT/0048/09 & UKEAT/0049/09), but also in any event, I think some flexibility of this sort must be allowed.[56]As to the complaint of discrimination arising from disability, Mr Grey-Jones submits that the ‘somethings’ arising, identified at paragraph 36 FBPs are too vague to be meaningful or responded to. 56.1. As for paragraph 36(a): admittedly it is not a masterpiece of drafting but I find this to be intelligible and to be given colour and meaning by the factual narrative in the claim form and FBPs; 56.2. Mr Fireman withdrew paragraph 36(b); 56.3. When I gave my ex tempore judgment I accidentally omitted to comment on paragraph 36(c). I do not find this paragraph intelligible. I find it hard to follow what is written not least because stress and anxiety are themselves mental health symptoms. I also find it difficult Page 10 of 12 to see how something along the lines of what is written here could add to paragraph 36(a). I am with Mr Gray-Jones on this paragraph. I do not think an amendment in respect of it should be allowed; 56.4. Mr Fireman withdrew paragraph 36(d) 56.5. Paragraph 36(e): my analysis is the same as paragraph 36(a).[57]Mr Gray-Jones also submits that the application to amend should fail because the unfavourable treatment because of the ‘somethings’ is not particularised by date (see paragraph 37 FBPs). That is technically true, but the date on which the Claimant lost trust in her employer and resigned is stated elsewhere in the FBPs (2 October 2010). The date of the other matters can also be extrapolated from elsewhere in the FBPs, and was confirmed today to be May 2019 to 4 October 2019 (date resignation took effect).[58]Finally, Mr Gray-Jones submits that no “link” is identified between the somethings and the unfavourable treatment. I do not agree. For instance, at paragraph 37 FBPs, it is pleaded that the unfavourable treatment arises in consequence of disability, i.e., the somethings identified at paragraph 36. That is enough for there to be a pleaded link of the relevant sort. Whether causation is ultimately made out is another matter; one for trial.[59]So, all in all, save in the limited cases where I have identified otherwise, I do think the Claimant would be severely prejudiced if I refused her application to amend. And save as indicated I do not think the claims are so lacking in merits or clarity that this becomes a material factor for the purpose of an application to amend/to extend time. - Prejudice to the Respondent[60]I do accept that if I allow the application to amend/extend time that would cause prejudice to the Respondent.[61]The Respondent will need to deal with and defend the claim generally.[62]The Respondent will need to deal with the issue of disability status and that will involve at the least considering the Claimant’s case and potentially opposing it which itself might involve an additional PH.[63]The scope of the substantive issues are broader and more complicated and time consuming than those in the original claim form. And since the marriage and civil partnership claim is not pursued at all, allowing the amendment would mean that instead of having nothing at all to defend there would be the claims identified in the FBPs to defend.[64]The final hearing is likely to need to be extended in length a little and it is possible that this could occasion a delay, though it may well be possible to tack on an additional day to the existing listing for hearing.[65]That prejudice is, all in all, material and not to be trivialised. - Balancing the hardship/prejudice[66]In my view the prejudice to the Claimant I have identified is of a different order to and significantly more weighty than the prejudice to the Respondent. If I Page 11 of 12 allow the application to amend/extend time the Respondent suffers some prejudice but it is still able to defend the proceedings.[67]In that regard I think it is very significant that there is no suggestion of any forensic prejudice occasioned by the delay in the complaints of disability discrimination being made (see above there is no suggestion that the cogency of the evidence is affected).[68]If I refuse the Claimant’s applications, on the other hand, she suffers the ultimate prejudice of being shut out of the tribunal system. This would, I think, be a particularly heavy prejudice in this case because she did start early conciliation within a short period of employment ending and present a claim within a short period of early conciliation ending. Final conclusions[69]Standing back and looking at all the factors in the round, on balance I think it is right that I exercise my discretion to allow the application to amend and extend time (save as set out below).[70]I think the balance of hardship/prejudice is the most weighty factor, but I have in coming to my final conclusion weighed all of the factors identified above. I have, without prejudice to the generality of the foregoing, not forgotten that the delay is substantial and that the Claimant did not seek legal advice as swiftly as she might have in circumstances in which, had she done so, complaints of disability discrimination would probably have been articulated more swiftly.[71]The application to amend is allowed save that: 71.1. PCP at para 34 (a): withdrawn 71.2. PCP at para 34 (c): allowed as truncated by striking through the words “with employees prone to depressive symptoms” 71.3. PCP at para 34 (d): permission refused 71.4. The “something” arising in consequences of disability at para 36 (b): withdrawn 71.5. The “something” arising in consequences of disability at para 36 (c): permission refused 71.6. The “something” arising in consequences of disability at para 36 (d):
Introduction
[1]This matter came before the Tribunal to determine the claimant’s application to add, as a second respondent to her claims, Mr Stephen Baylis. Mr Baylis was represented at the hearing by Mr S Harding of Counsel. Mr Harding had provided a detailed skeleton argument to both the claimant and the Tribunal. I also had a bundle of documents containing the various pleadings, preliminary decisions, case management orders and relevant correspondence.
The hearing
[2]I heard the brief application by the claimant. I asked her one or two questions about her application. Mr Harding relied on his skeleton and simply reiterated that the balance of hardship, or prejudice was in favour 1 of 6 of Mr Baylis. We had a discussion about the claims being pursued, the timing of the application and the nature of the potential liability.[3]At the conclusion of the hearing I reserved my decision which I now set out below.
Findings of fact
[4]The findings of fact are few given the nature of the amendment sought.[5]The claim was originally presented on 2 December 2019. The claimant was then acting for herself. However, she subsequently appointed solicitors who sought to amend her claim. This application was opposed and so a preliminary hearing took place to consider the application. That hearing took place on 9 July 2020 before Judge Dyal.[6]The substantive amendment sought was to withdraw certain claims and add wholly new claims of disability discrimination and failure to make reasonable adjustments. Applying the law to the facts, Judge Dyal determined that the amendment sought be allowed (with a few exceptions).[7]The amended claim [page 90 of the bundle] is very detailed. It refers throughout to the liability of the respondent for the claims now being pursued: indirect disability discrimination, discrimination arising from disability and failure to make reasonable adjustments. The claimant was advised throughout by her legal advisers at that time.[8]Following the hearing of the amendment application a case management hearing set out a detailed list of issues [pages 71 – 73 of the bundle]. At no point in the judgment or the case management summary is it suggested that there is, or is to be, any other party to these proceedings.[9]Following the amended claim, the respondent was permitted to file an amended response [page 114 of the bundle].[10]In December 2020 the respondent went into creditors voluntary liquidation. The claimant said that she felt that this was done deliberately by Mr Baylis, now the sole shareholder of the respondent, in order to avoid liability. However, she produced no evidence of this. Mr Harding submitted that the sector in which the respondent operates has been particularly badly hit by the Government’s Covid-19 restrictions, which point I accept.[11]On 19 January 2021 the claimant made the present application. The basis of that application is that, as the claimant put it, Mr Baylis was “responsible for everything”.[12]That application is opposed by Mr Baylis. 2 of 6 Law[13]The Tribunal has a wide discretion to allow the addition of parties under Rule 34 of the Tribunal Procedure Rules 2013 which is in the following terms: Addition, substitution and removal of parties 34. 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 apparently wrongly included.[14]Case law on amending pleadings in the Tribunal is equally applicable to applications under Rule 34 and thus the principles in Selkent Bus Company Ltd v Moore 1996 ICR 836, EAT apply. There is a wide body of case law in this area but the key test is the balance of hardship and injustice (see for example Transport and General Workers’ Union v Safeway Stores Ltd EAT 0092/07). Discussion and conclusion[15]One key point made by the claimant was that had the respondent not gone into liquidation, had it continued in its pre-liquidation state, she would not have sought to add Mr Baylis as a respondent. This is consistent with the approach taken to date. Mr Baylis was not named in the original application and he was not named in the amended application. When asked why he was not added as a respondent in the July application the claimant said that she was acting on the advice of her solicitor.[16]I turn then to Selkent (above). The matters to be considered, although not a checklist, and there may be other factors to consider, are the timing and manner of the application, the applicability of time limits, nature of the amendment and, overall, the balance of hardship and injustice, sometimes referred to as the balance of prejudice.[17]Given that there is no change to the pleaded case, the applicability of time limits is not in issue. What is in issue is the timing of the application. As things stand, this case has been ongoing or well over a year. Solicitors were acting for the claimant from May 2020 [page 45 of the bundle] until she stopped instructing them in February 2021. With the benefit of their advice, the detailed amendment, heard and accepted in July 2020, was drafted. No suggestion of adding Mr Baylis as a respondent was made in that amended pleading, no suggestion that he was personally liable was made, or if it was, it was rejected, otherwise the application would have included adding him as a second respondent at that time. 3 of 6[18]That general position has not altered. I reiterate that the claimant’s submission to me was that she would not have made the present application had the respondent been solvent. Although that is not necessarily a reason for refusing her application in and of itself, it does suggest that but for the liquidation Mr Baylis would not be facing this application, he would not have been put to the expense of engaging legal advice and he would not be facing the possibility of having to defend the claims or the possibility of having a legal judgment against him with the potential financial consequences of that.[19]The claimant’s state of mind in relation to the potential liability of Mr Baylis seems to me to explain the delay her making this application. Even when she knew the respondent had gone into liquidation it took another month for her to make the application to add Mr Baylis as a second respondent. Given that this amounted to sending an email it is difficult to see why there was any delay, which is not to take anything away from the more general point that if the claimant thought that Mr Baylis was responsible for the alleged discrimination, why he was not made a respondent either from the outset of these proceedings, or, at the latest from the July 2020 amendment.[20]If I allow the addition of Mr Baylis he will be of necessity allowed to submit an ET3/response which is likely to delay the final hearing of this case yet further (although again, in and of itself, that would not in my view prevent the application succeeding if other factors weighed in favour of the application). What is relevant is the further expense to which Mr Baylis would be put.[21]The nature of the amendment is relevant to this application. As the case stands, as pleaded in July 2020, adding Mr Baylis as a second respondent would render that pleading at best problematic. The entire amended case is set out from page 90 of the bundle. To take just one example, the first paragraph says: “The Claimant was employed by UV Tanning Lounge Ltd, hereafter referred to as the Respondent…”
Discussion and conclusions
[22]If I accept the addition of Mr Baylis as a second respondent that pleading would be rendered meaningless as there would now be two respondent’s, so who then is “the Respondent”? this is not a fanciful point. The Tribunal has to work with the claim as pleaded. As pleaded the claimant says that “the Respondent” is responsible for the discrimination and the failure to make reasonable adjustments. Without any further amendments, merely adding Mr Baylis as R2, as it were, would not change that. He is not accused of wrongdoing. The essential points in the pleading runs from paragraph 34 [page 97 of the bundle]. In relation to indirect discrimination, the claimant says that the respondent applied the PCPs which she says placed her at a substantial disadvantage, not Mr Baylis. Likewise with the section 15 claim only the respondent is referred to, not Mr Baylis. 4 of 6[23]Finally in the reasonable adjustments claim the claimant states clearly that “the Respondent failed to make reasonable adjustments” [paragraph 39, page 98 of the bundle].[24]I am not being asked to replace the respondent with Mr Baylis. Whilst that may resolve some drafting problems, it would give rise to others, most notably, going back to the start, the very first paragraph of the claim would be a pleading that the claimant was employed by Mr Baylis, as he would be “the respondent”. But she was not, she was employed by a limited company.[25]Therefore, I conclude that for three reasons the application to add Mr Baylis as a second respondent fails. First the nature of the amendment sought means that there remains no cause of action pleaded against Mr Baylis in the detailed claim form submitted in July 2020, and it is not up to the Tribunal to perfect pleadings or presume they mean something other than they expressly state. Second, the delay in seeking the amendment is significant in this case and allowing the amendment, even if it made legal sense, would require yet further delay to allow Mr Baylis to mount a defence. It is likely that a further preliminary hearing would be needed to re-make case management orders and in effect the case would be back to square one. Finally, turning to the balance of prejudice, whilst not allowing the addition of Mr Baylis leaves the claimant with a claim against a company in liquidation, with the potential that should she succeed and be awarded compensation the claimant may not recover it, as things stand even if the application succeeded the case as pleaded is not against Mr Baylis and there is no reason why a Tribunal would or could fix him with personal liability in the circumstances. Alongside that we have the potential for Mr Baylis to incur considerable cost in defending a claim where he is not in fact accused of being personally responsible for what the claimant says happened to her. Her claim as pleaded is against four square against UV Tanning Lounge Limited.