Miss K Contell v Northampton School For Girls: 3305122/2024

EMPLOYMENT TRIBUNALS

Case No 3305122/2024

Between

Miss K ContellClaimant

Northampton School For GirlsRespondent

Before

Employment Judge Bansal

Mrs A North (instructed by Solicitor) for claimant

Date 8 April 2025

JUDGMENT

ON APPLICATION TO AMEND The claimant’s application to amend her claim to include the complaint of disability discrimination is refused.

REASONS

[1]This case came before me to determine the claimant’s application to amend her claim to include a complaint of disability discrimination.

[2]The claimant was represented by Mrs A North (solicitor) and Miss Quirk (Senior Associate) for the respondents.

[3]For this hearing, the parties relied on a hearing bundle of 115 pages. The Claimant’s application

[4]By a Claim Form (ET1) presented on 13 May 2024 the claimant made complaints of unfair dismissal and detriment for making a protected disclosure. The Claim Form confirmed the representative to be law firm HCR Hewitsons.

[5]At a preliminary hearing for case management held on 4th December 2024, the claimant sought to amend her claim to include a claim for disability discrimination. At that hearing the claimant was directed to make a formal application for amendment by 18 December 2024.

[6]By an application made on 16 January 2025, (nearly weeks late from the date ordered), in the form of an amended claim the claimant sought to include complaints of direct and indirect disability discrimination, discrimination arising from disability, failure to make reasonable adjustments and harassment related to disability. The claimant relies on the mental impairment of depression. Submissions on behalf of the Claimant

[7]The claimant did not give evidence or provide a statement in support of the application. Neither was an explanation given why the application was made some 4 weeks late than ordered. Mrs North made submissions as summarised below;(i) At the date of the claimant’s suspension, the respondent knew she had mental health issues suffering from stress and anxiety. This put the respondent on notice about the claimant’s alleged disability;

(ii) Although the claimant had received legal advice and assistance in relation to her appeal and grievance, the Claim Form was completed with the assistance of her ex-partner who is not legally trained. The box relating to disability is ticked;

(iii) The disability discrimination complaint is linked to the protected disclosure complaint;

(iv) Mrs North’s firm were instructed on 19 November 2024 and made the application within a reasonable time having put the respondent on notice of their intention to do so.

(v) The balance of hardship is in favour of the claimant. Submissions on behalf of the respondents

[8]Miss Quirk, opposed the application on the following grounds;(i) The Claim Form gives no indication of a complaint for disability discrimination;

(ii) This application aims to introduce an entirely new head of claim. This is not a re-labelling exercise. The Claim Form made no mention of allegations of disability discrimination.

(iii) The proposed amended complaints are significantly out of time. As time runs from the date of the application (i.e 16 January 2025) the allegations date back to May 2022. (iii) The claimant has delayed making this application and provided no explanation why this application was not made earlier given the history of this case so far. This claim was presented on 13 May 2024 and has taken until 16 January 2025 to make this application. (vi) The issue of disability is disputed which will need to be determined first at a preliminary hearing. (vii) To allow this application significantly prejudices the respondent in that this will require a preliminary hearing to determine the issue of the claimant’s disability, and if disability is established it will require the respondent to investigate and interview additional witnesses which will add to the expense of this case and lengthen the hearing. It may also affect the cogency of the evidence. (viii) There will be no significant prejudice to the claimant as she is still able to pursue her complaints that she intended to pursue. The legal framework

[9]The Tribunal has a general power to make case management orders which includes the power to allow amendments to a claim or response in terms of Rule 30 of the Employment Tribunal Procedure Rules 2024.

[10]The leading case of Selkent Bus Company Ltd v Moore

[1996] IRLR 836

confirms the Tribunals power to amend is a matter of judicial discretion. Mummery J said; “Whenever the discretion to grant an amendment is invoked, the tribunal should take into account all the circumstances and should balance the injustice and hardship of allowing the amendment against the injustice and hardship of refusing it.”

[11]The guidance in Selkent provides for consideration of the nature of the amendment, the timing and manner of it and the applicability of time limits. The key question a Tribunal is asked to determine is where does the balance of injustice/prejudice lie if an application to amend is granted or refused.

[12]This is reflected in the Presidential Guidance on Case Management and was recently confirmed by the EAT in Vaughan v Modality Partnership

2021 IRLR 97

[13]In Ladbrokes racing Ltd v Traynor

EAT/0067/06

the EAT gave guidance on how to take into account the timing and manner of the application in the balancing exercise. The Tribunal will it need to consider;(i) why the application is made at the stage at which it is made, and why it was not made earlier;

(ii) whether if the amendment is allowed, delay will ensue and whether there are likely to be additional costs because of the delay or because of the extent to which the hearing will be lengthened if the new issue is allowed to be raised, particularly if these are unlikely to be recovered by the party that incurs them; and

(iii) whether delay may have put the other party in a position where evidence relevant to the new issue is no longer available or is rendered of lesser quality than it would have been earlier.

[14]Where an application raises arguably new causes of action a Tribunal should consider the extent to which the new complaints are likely to involve substantially different areas of enquiry and the greater the differences between the factual and legal issues raised the less likely it will be permitted (Abercrombie Yeah v Aga Rangemaster Ltd

[2013] EWCA Civ 1148

, CA)

Conclusion

[15]In coming to my decision I have taken into account the parties submissions, the cases and legal principles referred to, and in particular as I am required to do, the guidance in Selkent. I therefore address each of the specific factors highlighted in Selkent, and any other relevant facts and then take all of those into account in balancing the injustice and hardship to all parties. I deal with these below. a. The nature of the amendment.

[16]I reviewed the Claim Form. There is nothing in the particulars of claim, or in the attached letter that identifies any potential complaint of discrimination. I reject Miss North’s assertion that the claimant ticked the disability discrimination box in the Claim Form, and/or that because the respondent had knowledge that the claimant was suffering from stress or anxiety at the time, this put the respondent on notice of a disability complaint. I agree with Miss Quirk that this proposed amendment is a new cause of action.

[17]I then considered if this new cause of action raises new facts. I reviewed the proposed amendments in the amended Grounds of Resistance at Paragraphs 79-93. The proposed complaints are for direct and indirect discrimination; discrimination arising from disability; failure to make reasonable adjustments; and harassment related to disability. The asserted acts of discrimination date from May 2022 up to 5 April 2024 being the date of dismissal. The substantial allegations are based on new pleaded facts, except those relating to the dismissal. Therefore, this proposed amendment is not a re-labelling exercise. This will require a substantive new line of enquiry and investigation going back to 2022 onwards. b. The applicability of time limits and manner of application.

[18]I agree with Miss Quirk that this application to amend has been made significantly out of time. This application has been formally made following the direction given by Employment Judge Wright at the preliminary hearing held on 4 December 2024. Even then it is has not been made within the time ordered. The acts/incidents relied upon date from May 2022 onwards, with the last act of discrimination being the dismissal. The claimant seeks to rely upon the act of dismissal as the conduct extending over a period of time. Given the time line of the alleged acts relied upon it is clear there are time limit issues to be determined and also whether the claimant will be able to establish how each of the alleged acts could be linked to each other.

[19]Whilst I accept the Tribunal does have a broad discretion to hear a discrimination complaint out of time under Section 123(1)(b) of the Equality Act 2010, the claimant has provided no compelling explanation for the delay in making this application or why she was not able to include the new complaints in the Claim Form. The claimant was able to submit a grievance and appeal to the dismissal and also the Claim Form albeit with the assistance of her ex-partner. There was nothing preventing the claimant also including a complaint of disability discrimination in the Claim Form, however brief may have been the pleaded complaint. c. The balance of injustice and hardship.

[20]Miss Quirk submitted that if the proposed amendment is allowed the respondent will be put to considerable expense of first having to consider the disability issue which may require a preliminary hearing; having to respond to the allegations; having to conduct further investigation and adduce additional evidence, which given the historic allegations may affect the cogency of the evidence, and ultimately will extend the length of the final hearing. Conversely, the claimant will not be caused prejudice because she will be able to continue with her pleaded case.

[21]I am persuaded by Miss Quirk’s submission that I should follow the guidance given by Underhill LJ in the case of Abercrombie v Aga Rangemaster Ltd (2014)ICR 20. The Court of Appeal stressed that tribunals should when considering applications to amend that arguably raise new causes of action, 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 by the old the less likely it is that it will be permitted.”

[22]I have taken into consideration all of the relevant circumstances and have had regard to the overriding objective to deal with matters proportionately, and the public interest of finality of litigation. I am satisfied that there would be injustice and hardship to the respondent in granting this application. The proposed amendment is a substantial new cause of action arising from new facts, and the respondent will be severely prejudiced in dealing with this new complaint.

[23]For the reasons set out above, I refuse the claimant’s application for amendment. Approved By