Mr O Ogodazi v London Borough of Ealing: 3305147/2023 and 3305396/2023
EMPLOYMENT TRIBUNALS
Case No 3305147/2023, 3305396/2023
Between
Mr O OgodaziClaimantLondon Borough of EalingRespondent
Before
Employment Judge KightIn person for claimantMr S Ayub (instructed by Solicitor) for respondentDate 8 January 2026
JUDGMENT
[1]The Claimant’s application to amend his claim is allowed in part, the following particulars of detriment relating to his claims for victimisation and (in respect of 1.1.1-1.1.5 below) for detriment related to union membership or activities are added to his claim:1.1.1 In or around August or September 2022 Andrew Machin, on instruction from Colin Holland, told an Operations Manager for Greener Ealing called Derek to make a complaint about the claimant.1.1.2 In or around April 2023 Derek Rawson, Fire Safety Manager wrote an email saying that the claimant had performed badly and had not done what was asked of him, the claimant says at the behest of Colin Holland with whom Mr Rawson had a close relationship.1.1.3 Colin Holland told a tenant called Sandra Hewey to make a complaint about the claimant. Sandra Hewey refused but this nevertheless resulted in her sending an email on 10 May 2023 to the claimant’s acting line manager Jovan Lazarov which Colin Holland said was an official complaint.1.1.4 In April/May 2023 Colin Holland told the claimant’s acting line manager, Jovan Lazarov that he had received a complaint from a contractor when that complaint did not exist.1.1.5 In or around May 2023, Colin Holland gave the claimant a formal warning lasting for 6 months in respect of the Sandra Hewey 10.7 Judgment with reasons – rule 62 March 2017 Case No: 3305147/2023 & 3305396/2023 complaint and he erroneously took into account the earlier complaint from Derek at Greener Ealing.1.1.6 On 15 November 2023 the respondent dismissed the claimant.[2]The Claimant’s application to add a second complaint for reasonable adjustments relying upon migraines as the alleged disability and to add a further detriment relating to Colin Holland’s conduct of 1-2-1 meetings in or around April 2022 is refused. JUDGMENT having been given orally at the preliminary hearing and written reasons having been requested at the hearing in accordance with Rule 62(3) of the Employment Tribunals Rules of Procedure 2013, the following reasons are provided:
REASONS
[1]At the case management preliminary hearing on 9 August 2024, the claimant, having further particularised his claims at the hearing orally, made an application to amend his claims for victimisation and for detriment related to union membership or activities to include the following alleged detriments: 1.1. During 1-2-1 meetings on three occasions in April 2022, Colin Holland brought up issues which the claimant considered to be negative performance reviews for situations beyond the claimant’s control. i.e., on these occasions Colin Holland unjustifiably criticised the claimant’s performance. 1.2. In or around August or September 2022 Andrew Machin, on instruction from Colin Holland, told an Operations Manager for Greener Ealing called Derek to make a complaint about the claimant. 1.3. In or around April 2023 Derek Rawson, Fire Safety Manager wrote an email saying that the claimant had performed badly and had not done what was asked of him, the claimant says at the behest of Colin Holland with whom Mr Rawson had a close relationship. 1.4. Colin Holland told a tenant called Sandra Hewey to make a complaint about the claimant. Sandra Hewey refused but this nevertheless resulted in her sending an email on 10 May 2023 to the claimant’s acting line manager Jovan Lazarov which Colin Holland said was an official complaint. 1.5. In April/May 2023 Colin Holland told the claimant’s acting line manager, Jovan Lazarov that he had received a complaint from a contractor when that complaint did not exist. 1.6. In or around May 2023, Colin Holland gave the claimant a formal warning lasting for 6 months in respect of the Sandra Hewey complaint and he erroneously took into account the earlier complaint from Derek at Greener Ealing. 1.7. On 15 November 2023 the respondent dismissed the claimant.[2]The claimant also applied to amend his claim for failure to make reasonable adjustments to add a second claim, relying upon migraines which the claimant has suffered for the last 6 years, and so for the duration of his employment with the respondent. The claimant alleged that the respondent applied a practice of failing to make permanent adjustments to employees’ roles, which he says in his case was a permanent adjustment that when he had to take medication for migraine, he would be able to work from home and if necessary, work reduced hours. The claimant alleged that because a temporary adjustment he had for this was stopped between April – July 2022 it meant that he had to either take time off sick or come into work in an unsafe condition. The claimant alleged that it would have been reasonable for the respondent to take the step of making the temporary adjustment a permanent one.[3]The respondent objected to the applications to amend.[4]I had before me an electronic bundle of documents running to 174 pages, excluding the index and a 6-page document prepared by the respondent which was a chronology of the legal proceedings to date. I heard submissions from both the claimant and from Mr Ayub on behalf of the respondent.
Law
[5]Pursuant to Rules 29 and 30 of the Employment Tribunal Rules of procedure the Tribunal has the discretionary power to grant applications to amend. Such an application is to be considered and determined applying the overriding objective set out in Rule 2. “2. The overriding objective of these Rules is to enable Employment Tribunals to deal with cases fairly and justly. Dealing with a case fairly and justly includes, so far as practicable—(a) ensuring that the parties are on an equal footing;(b) dealing with cases in ways which are proportionate to the complexity and importance of the issues;(c) avoiding unnecessary formality and seeking flexibility in the proceedings;(d) avoiding delay, so far as compatible with proper consideration of the issues; and(e) saving expense. A Tribunal shall seek to give effect to the overriding objective in interpreting, or exercising any power given to it by, these Rules. The parties and their representatives shall assist the Tribunal to further the overriding objective and in particular shall co-operate generally with each other and with the Tribunal.”[6]The case of Cocking v Sandhurst (Stationers) Ltd [1974] ICR 650 identified what are now well-established principles that the Tribunal has power to grant applications to amend and that it is a matter of discretion that should be exercised having “regard to all the circumstances of the case” and, considering “any injustice or hardship which may be caused to any of the parties”.[7]An important authority relating to relevant factors for consideration is, Selkent Bus Co Ltd v Moore [1996] ICR 836 in which it is stated at [833-4]: “(4) 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. (5) What are the relevant circumstances? It is impossible and undesirable to attempt to list them exhaustively, but the following are certainly relevant.(a) The nature of the amendment. Applications to amend are of many different kinds, ranging, on the one hand, from the correction of clerical and typing errors, the addition of factual details to existing allegations and the addition or substitution of other labels for facts already pleaded to, on the other hand, the making of entirely new factual allegations which change the basis of the existing claim. The tribunal have to decide whether the amendment sought is one of the minor matters or is a substantial alteration pleading a new cause of action.(b) The applicability of time limits. If a new complaint or cause of action is proposed to be added by way of amendment, it is essential for the tribunal to consider whether that complaint is out of time and, if so, whether the time limit should be extended under the applicable statutory provisions, e.g., in the case of unfair dismissal, section 67 of the Employment Protection (Consolidation) Act 1978.(c) The timing and manner of the application. An application should not be refused solely because there has been a delay in making it. There are no time limits laid down in the Regulations of 1993 for the making of amendments. The amendments may be made at any time — before, at, even after the hearing of the case. Delay in making the application is, however, a discretionary factor. It is relevant to consider why the application was not made earlier and why it is now being made: for example, the discovery of new facts or new information appearing from documents disclosed on discovery. Whenever taking any factors into account, the paramount considerations are the relative injustice and hardship involved in refusing or granting an amendment. Questions of delay, as a result of adjournments, and additional costs, particularly if they are unlikely to be recovered by the successful party, are relevant in reaching a decision.”[8]The case of Abercrombie v Aga Rangemaster Ltd [2014] ICR 209, clarified that in cases where applications to amend may involve new causes of action the Tribunal’s focus, when considering the balance of injustice and hardship should be 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 performed”.[9]That the balance of injustice and hardship is the foremost test, was restated by the EAT in Vaughan v Modality Partnership [2021] ICR 535 and the actual practical consequences of allowing or refusing an amendment should form the foundation to the balancing exercise. It added that the factors identified in Selkent are not a tick list to decide the application, but they are factors (not the only potentially relevant factors) to take into account when considering the balance of injustice and hardship.[10]Whilst the application of time limits when considering an amendment which involved a new cause of action is a relevant factor and is to be taken into account in the balancing exercise, the fact that a new cause of action would be prima facie out of time is not a decisive factor against allowing the amendment (see Transport and General Workers’ Union v Safeway Stores Ltd UKEAT/0092/07/LA).[11]The case of Galilee v Commissioner of Police of the Metropolis [2018] ICR 634 provides that: “a. amendments to pleadings in the ET, which introduce new claims or causes of action take effect for the purposes of limitation at the time permission is given to amend and there is no doctrine of ‘relation back’ in the procedure of the ET; […] d. the guidance given by Mummery J in Selkent and his use of the word ‘essential’ should not be taken in an absolutely literal sense and applied in a rigid and inflexible way so as to create an invariable and mandatory rule that all out of time issues must be decided before permission to amend can be considered; […] g. whilst in some cases it may be possible without hearing evidence to conclude that no ‘prima facie’ case of a ‘continuing act’ or for an extension on ‘just and equitable’ grounds can arise from the pleadings, in many cases, often, but not necessarily confined to, discrimination cases, it will not be possible to reach such a conclusion without an evidential investigation; h. as indicated in the Opinion in Kaur sometimes it may be necessary to hear a significant amount of evidence and sometimes it may not be possible or sensible to deal with the matter at a Preliminary Hearing and decisions may need to be postponed until all the evidence has been heard; i. in such cases permission to amend can precede decisions as to whether any new claim raised by the amendment is out of time; in other cases a decision on whether to grant permission to amend can be postponed; […]”[12]Finally, the Tribunal must have regard to the Presidential Guidance in exercising its discretion under Rule 29. Guidance Note 1 of the Presidential Guidance on General Case Management (last updated 22 January 2018) contains guidance on the amendment of the claim and response. Parties’ representations[13]The claimant, in his representations recognised that what he now sought to rely upon as detrimental treatment for the purposes of his claims for victimisation and detriment on grounds related to union membership or activities was not contained in his claim form. He explained that he had followed the advice of his trade union representative at the time on completing the form and he accepted that whilst there were many facets to the claim there was probably not enough detail. He said that when he started struggling to get information across, after being ordered by Employment Judge Gumbiti-Zimuto to provide further particulars after the first telephone preliminary hearing on 18 October 2023, he had written to the Tribunal on 31 January 2024.[14]The claimant’s email to the Tribunal at page 132 of the bundle for this preliminary hearing referred to difficulties with access to documents as well as the claimant not understanding and having further questions about what information he was required to provide. He requested another short preliminary hearing to address this.[15]The claimant explained that unfortunately he did not receive a response to this request and so in May 2024 he wrote again to the Tribunal asking for a second preliminary hearing (page 152 of the bundle). This then prompted a second preliminary hearing to be listed which, the claimant said, clarified a lot of the interlinked issues for him. He added that if he had been in receipt of legal advice at the outset, he would have been asked the questions he needed to be asked for him to provide the information required. He added that these proceedings were still at an early stage and that the respondent would have time to address the issues raised in the amendments sought. He believed that there is a claim to be heard and that refusing the application would have the effect of depriving him of his entire claim, owing to the inter-linked nature of all the issues.[16]The claimant was asked about any representations in relation to the amendment relating to his claim for failure to make reasonable adjustments to include a second limb relying upon the impairment of migraines and an alleged failure to make reasonable adjustments which dated back to 2022. The claimant did not explain why he had not included that allegation in his claim form (rather he had referred to a reasonable adjustment for migraines having been made to demonstrate his perceived unfairness in the respondent not making a reasonable adjustment for his knee impairment). He simply referred to the adjustment he was seeking to rely on having been taken away before his knee injury and that when he had the knee injury this became his focus. He added that this was a particularly painful and difficult time for him.[17]In response to submissions from Mr Ayub, the claimant later added that when the respondent referred to missed opportunities in December 2023/January 2024 he had been going through a particularly difficult time in his personal life, in view of a death in the family and his responsibility to car for his mother with dementia.[18]My Ayub, in his submissions on behalf of the respondent, took me through each of the Selkent factors in turn. 18.1. As regards the nature of the amendment, he pointed to the fact that the claimant’s amendments had not been made in writing but were based upon the notes taken of what the claimant had said orally at the hearing. He said that the document which the claimant had produced prior to the hearing (page 163) had clearly been inadequate because the last three hours of the preliminary hearing had been spent identifying the claimant’s claims. He flagged that the amendments did not comply with the previous case management order of Employment Judge Dick because they were not clarification of his pleaded claim but were new issues. He said that the amendments are substantial and introduce new allegations which will add to the legal and factual enquiries to be made. He said that what was originally a relatively straight forward claim had now “ballooned into everything the claimant has complained about during his employment” when the respondent had anticipated from its reading of the claim form, that the claimant’s claims were premised upon the respondent failing to make reasonable adjustments. In relation to the amendment to the disability discrimination claim, he intimated that he did not consider it to have merit based upon the PCP and alleged substantial disadvantage had been identified. 18.2. Turning to the timing and manner of the application, Mr Ayub reiterated that the application had not been made in writing and was “piecemeal”. He said that the majority of the claim had not been properly articulated before today. He took me through the history of the proceedings and the opportunities that the claimant had to properly particularise his claims, which included the claimant’s submission of a second ET1 (which had been identical to the first and was submitted 11 days after the first), the first case management order to particularise his claims, when the claimant had asked for a extension of time in December 2023 and this had been granted in January 2024 and when the claimant had himself said that he would provide the requisite information later in January 2024 but then had not done so. I was taken to the claimant’s agenda for the second preliminary hearing which referred to unfair dismissal, whistleblowing and bullying but did not provide the details in his application to amend and Mr Ayub also pointed to order of Employment Judge Dick that the claimant should not be seeking to introduce new issues in providing the outstanding information. 18.3. As for time limits, Mr Ayub (referring to the decision in Galilee) said I did not have to reconcile this at the moment as the issue of time limits could be deferred to the final hearing, but he flagged nonetheless that the amendments were out of time and that the amendment relating to migraines and reasonable adjustments related to a time more than two years ago. 18.4. In relation to the balance of hardship, Mr Ayub told me that memories fade and that two of the respondent’s witnesses Mr Machin and Mr Lazarof had since left the respondent (though he confirmed that this did not mean that Mr Lazarof at least would not be able to attend to give evidence for the respondent). He said that in short there would be evidential prejudice in allowing the claimant to pursue the allegations which were the subject of his application to amend when there was no explanation for the delay in their presentation. He said the balance of prejudice and hardship favours rejecting the claimant’s application as allowing it would result in more expense, a larger bundle with more disclosure (when the respondent had already completed disclosure in relation to the pleaded claim) and more witnesses, including specifically Andrew Scully and Ed Axe. He implored that this would result in a consideration extension to the length of the hearing, suggesting 15 days would now be needed rather than 6 days. He added that this all weighed more heavily on the respondent than the prejudice of refusing the application would weigh on the claimant because the claimant could still argue his claim for reasonable adjustments and unauthorised deductions from wages as identified in the claim form. Finally, he stated that it would be in line with the overriding objective to refuse the application. Decision and rationale[19]As guided by the authorities and the relevant Tribunal Rules and Presidential Guidance referred to above, I have considered all the circumstances of the case, including the Selkent factors and fundamentally the balance of hardship and injustice per Vaughan.[20]It is fair to say that these proceedings have followed a lengthy and winding course to date: case management orders have not been complied with and a 6-day final hearing has already had to be vacated. This stemmed from the claimant, a litigant in person, not fully particularising his original claim submitted on 5 May 2023 and then, despite case management orders requiring it, not providing further information which the respondent and the Tribunal had considered necessary to properly understand, respond to and determine his claim. In addition, since the claimant presented his original claim and after the first preliminary hearing on 18 October 2023, the claimant has been dismissed by the respondent and at the preliminary hearing on 26 June 2024, the claimant was allowed to amend his claim to include a claim for unfair dismissal. The consequence of this unfortunate state of affairs is that, although the respondent had completed some disclosure in relation to the original claim as it had understood it, these proceedings are not at a particularly advanced stage.[21]The amendments the claimant seeks to include in his claim are substantial, in the case of the detriment complaints they add significant new detail to the bare headings that were contained in the original claim. The amendment to add a new claim for failure to make reasonable adjustments dating back to April-July 2022 reliant upon the impairment of migraines, is at odds with the pleaded claim for failure to make reasonable adjustments, which indicated that the claimant was using the example of adjustments made to support him suffering with migraines to demonstrate why the respondent was acting unreasonably in relation to making adjustments for his knee injury.[22]Because these are new facts which differ from the existing claims, the question of time limits is a relevant but not determinative factor. Bearing in mind the position in Galilee that the doctrine of relation-back does not apply, the claims have not been brought within the primary limitation periods. Whilst I have heard some explanation from the claimant about why these matters were not fully particularised and the amendment application was not made sooner, I have not heard detailed evidence to form a view on the possibility of extensions of time and whether, in particular, the claimant might be in a position to demonstrate that it would be just and equitable to extend time in respect of those claims to which section 123(1) Equality Act 2010 applies. What I do note however, is that the claims in respect of a failure to make reasonable adjustments in respect of migraines and in relation to alleged detriment listed at paragraph 1.1 above are both significantly further back in time (by at least several months) than the remainder of the detriment claims, which would likely cause more difficulties for witnesses, in particular the respondent’s witnesses, in recalling the details and potentially in locating relevant documents for disclosure purposes.[23]Mr Ayub on behalf of the respondent made persuasive submissions as to the manner and timing of the claimant’s application, which I have taken on board and have weighed into the balance. The claimant has had several earlier opportunities to apply to amend his claim to include the subject of this application, not least at the last preliminary hearing. I also take into account, however, the claimant’s point that he asked for a second preliminary hearing because he needed further understanding as to the particulars he was required to provide, and it was not until he attended that second preliminary hearing that he believed he understood what was needed. I also appreciate that the second preliminary hearing was taken up with addressing the claimant’s dismissal by the respondent since he had presented his claim and his application to amend his claim to include that.[24]In terms of the practical impact of allowing the amendments and the balance of hardship and injustice, I am not persuaded that there will be such a significant increase in hearing length (more than double the number of days) caused by the inclusion of these amendments as Mr Ayub suggests. Whilst I account for the need for cases to be dealt with proportionately and saving expense in line with the overriding objective, that is only part of the requirement to deal with cases fairly and justly. I am mindful of the claimant’s position that his claims are all interlinked, essentially that there was a concerted effort by the respondent to make life difficult for the claimant to remove him from its organisation, culminating in his dismissal.[25]Given that a claim for unfair dismissal already forms part of these proceedings, the addition of dismissal as a detriment for the victimisation claim will not in my view cause there to be an increase in hearing length nor increase the respondent’s disclosure obligations when considering the balance of hardship. I acknowledge that there may be a need for limited additional witness evidence in relation to the reason for dismissal, though of course a claim for unfair dismissal would still require the Tribunal to determine the reason for dismissal and it is ordinary practice for the decision-maker on dismissal to give evidence to address the reason. Mr Ayub gave no indication that the respondent would be unable to adduce such witness evidence. There may therefore be some limited prejudice to the respondent, but I do not believe that this would have a material impact on the respondent’s ability to defend the claim or on hearing length. Mr Ayub intimated that he may apply for an open preliminary hearing to determine jurisdiction in the unfair dismissal claim and he looked to the written reasons of Employment Judge Dick from the previous decision on amendment to demonstrate that the claim would be struck out for being out of time. I have considered this possibility, however, as matters stand, I cannot conclude that it is by any means certain that this is how the proceedings will pan out and that the consequent implication would be the respondent suffering a heavier burden by nonetheless having to deal with the claimant’s dismissal at the final hearing.[26]The addition of the detriments set out at paragraphs 1.2-1.5 above in respect of the claims for victimisation and detriment on grounds of union membership or related activities will involve new evidential lines of enquiry. However, the claimant has given very specific particulars and the extent of the additional facts to be found is limited, relating to 4 instances of alleged complaints and a linked disciplinary warning all said to involve, either directly or indirectly, Colin Holland. The respondent has already identified that Colin Holland would be giving evidence for it at the final hearing in these proceedings, presumably in relation to the reasonable adjustments claim relating to the claimant’s knee injury and so there would not be a requirement for an additional witness. I accept though it is likely to increase the amount of evidence Mr Holland will give and may have some, albeit in my view still proportionate impact on the length of the hearing. I note that at least one of the detriments involves Mr Andrew Machin, who is no longer with the respondent organisation and two others involve Jovan Lazarov who has also now left the respondent. I was reassured by Mr Ayub that he was not saying that Mr Lazarov would not be able to give evidence and I note also that the respondent had intended to call him in any event. Given that the main thrust of the allegations relates to the actions of Colin Holland however, I see that any prejudice to the respondent resulting from this is again limited in nature.[27]Turning to the detriment at paragraph 1.1 and the claim for failure to make reasonable adjustments relating to migraines, I take a different view of the practical consequences of allowing these amendments. Whilst again they involve evidence that would be given by Colin Holland, they will result in more onerous additional lines of enquiry both in terms of disclosure and witness evidence and of the matters that the tribunal will need to determine.[28]In relation to the detriment referred to at paragraph 1.1, it lacks specificity and it is said to have arisen during three informal 1-2-1 meetings in or around April 2022 and refer to matters of the claimant’s performance on workstreams which have not been identified by the claimant. The lack of specificity combined with the length of time which has passed since the matters complained of is likely to lead to quite significant and more onerous additional searches for relevant documents. It could cause difficulties in terms of Colin Holland being able to clearly recollect the position at the time, particularly if searches for relevant documents do not manage to locate any owing to the potentially informal nature of the meetings.[29]In relation to the claim for failure to make reasonable adjustments relating to migraines, the respondent would need again to make extra lines of enquiry as to the documentation it holds relating to its knowledge of the claimant’s alleged impairment, any occupational health involvement, what adjustments, if any, were made and on what basis, as well as evidence on any decision to cease making such adjustments – largely pre-dating April 2022. The respondent and the Tribunal would need to consider, and time would need to be given to the question of whether the claimant’s migraines amount to a disability.[30]Taking all the above into account, I consider that the balance of hardship and injustice of including the amendments set out at paragraphs 1.1 and 2 above as falling more heavily on the respondent than the prejudice that would be caused to the claimant in not being allowed to pursue them. The claimant has a properly pleaded more recent reasonable adjustments claim which he will still pursue, and the reasonable adjustments claim relating to migraines pre-dates the thrust of the claimant’s claim relating to victimisation.[31]Conversely, I consider the balance of hardship and injustice would fall more heavily on the claimant if I were not to allow the remaining amendments to his claims for victimisation and detriment on grounds of trade union membership or activities. Whilst there will be some practical impact on the respondent as outlined above, the proceedings are still at an early stage to enable the respondent to fully defend the amended claim and it is not so significant as the practical effect on the claimant which would be to prevent him from being able pursue and receive a determination on what appear to be inter-connected claims.
Conclusions
[32]The claimant’s application to amend is allowed in part. His claim is amended to include the particulars of detriment relating to his claims for victimisation at paragraphs 1.2-1.7 above and for detriment related to union membership or activities at paragraphs 1.2-1.6 above.[33]The claimant’s application to amend to include the particulars of detriment at paragraph 1.1 above and to include the claim for failure to make reasonable adjustments set out at paragraph 2 above is refused.[34]I also accept that the claimant’s uncle sadly passed away in December 2023. No doubt this was an upsetting time. I also acknowledge that the claimant had a role in managing his uncle’s estate, which it seems was contentious for a number of reasons which I need not go into for present purposes. The claimant was also looking for work, and coping with the financial implications of being dismissed. I am told that the claimant found work as a senior contract manager at a hospital about six months after his dismissal. The claimant was a single parent, and was having to care for his son, who was about 15 years old at the time. It appears that his son had a serious road traffic accident in December 2023 which required hospitalisation. This event tended to dominate the claimant’s attention for several days at least. No doubt the cumulative effect of all of these factors was to create a challenging period in the claimant’s life.[35]In fairness to the claimant, he also contacted the Tribunal on a number of occasions in order to flag up difficulties he was having with complying with Tribunal orders. On 15 December 2023, he emailed the Tribunal [117] explaining that he might struggle to meet dates for Tribunal case management directions. He asked for an extension of two months. An email dated 30 January 2024 raised similar issues [137]. It was my impression of the claimant that he had a lot on shoulders at about the time he was dismissed. He seemed to me to be a person who did not carry these burdens lightly. No doubt he experienced some symptoms of stress and low mood from time to time. However, there is little if any medical evidence to support medical findings beyond that. I am not aware of any formal diagnosis, treatment or therapy that he received at the relevant time. There is insufficient evidence that medical issues had a significant impact on the question of compliance with time limits in my view.[36]Furthermore, it is not suggested that the claimant was unaware of his ability to bring a claim in the Employment Tribunal, or that there was a three month time limit for bringing claims. This is, in my view, an important aspect of the case. In a number of regards, the claimant engaged effectively with the Tribunal, particularly by the standards of a litigant in person. He attended all of the case management hearings and represented himself. He appeared to have actively participated on these occasions and showed insight and knowledge. Indeed, as stated above, he had been engaged sufficiently to seek extensions of time for compliance with Tribunal orders.[37]Whilst they had shortcomings, the claimant was able to lodge two ET1’s, and in doing so demonstrated an understanding of Employment Tribunal procedure. I also find that the claimant had taken legal advice, at least from his union representative. As a active member of the union, he had access to such advice if he had wanted it. In my judgment, it is likely that he would have been in receipt of advice during the redundancy consultation process and dismissal. It is also the case that the claimant went through early conciliation in the spring of 2023. I find that it is likely that ACAS would have had a discussion with the claimant about time limits. Of course, even if the claimant did not have knowledge of time limits, there was nothing to prevent him from finding out.[38]I agree with the observation made by Mr Clarke in his opening note, namely that the claimant is an educated and intelligent individual. In October 2023, the respondent sent the Claimant a list of issues that included time jurisdiction as an issue and set out the tests [76 and 81]. If not before, then at this stage, the claimant should have been aware of the statutory limitation periods. In July 2024, the claimant was able to produce his own version of a list of issues and to research and include authorities within that document. To my mind, it created a picture of a very able litigant in person, with access to advice and knowledge about the Employment Tribunal, and in particular, about the significance of time limits.[39]In this context, the comments of EJ Dick at [189] at paragraph 15, are illustrative in that he stated “[the Claimant] certainly could have applied to add [the Unfair Dismissal] complaint much earlier than seven months after the end of his employment”, and “Both the timing and the manner of the application were unsatisfactory to say the least”.[40]Having examined the history of the matter, and having listened carefully to his submissions over the 4 days of this preliminary hearing, it is my impression that the claimant can be impervious to suggestion. He is clearly bright, but he does not always listen carefully to what is being said, even when it comes from the Tribunal. As a result, he gives the appearance at least of treating orders of the Tribunal in a casual fashion. I suspect he does not do so in bad faith. It may well be a problem he has with prioritisation. In any event, it is a problematic mindset if you are engaged in Employment Tribunal proceedings, particularly if you are representing yourself.[41]I also note that by May 2024, the claimant had sought out and obtained demanding full time employment, working 40 hours over 7 days. If he was able to absorb this new commitment into his life, then I do not accept that he was in any material sense too incapacitated by the others stresses in his life to be unable to initiate these claims earlier. I can see no sufficient reason why he was not able to bring new claims or to make applications to amend his claims at an earlier stage.[42]Accordingly, in relation to the claim for unfair dismissal, I am satisfied that the claimant could have brought his claim within the statutory limitation period i.e. by 14 February 2024. In my judgement, it was reasonably practicable for him to have reviewed the content of his claims immediately after his dismissal. Even if I am wrong about this, I can find little if any justification for the further delay of about 4 months between the end of the limitation period, and the making of the application in June 2024.[43]In relation to the TULRCA claim, the claimant was back at work in March 2023. The last of the detrimental acts is said to have occurred in May 2023. I can see no reason why he could not have included this claim in his ET1 (at least in part), or to have amended the claim by the summer of 2023. I find that he was well enough to do this. His disability was of a physical nature. There was no cognitive impairment at the time as far as I am aware. The facts upon which the claimant relies in relation to this claim were mostly available to him when he lodged his ET1’s in May 2023. Even if I am wrong about this, then again I can find no good reason why the claimant did not make an application to amend his claim until about 12 months later.[44]I therefore refused jurisdiction to hear either of these two claims. Should the Victimisation claim should be dismissed as being out of time?[45]It was agreed that this claim was lodged via a successful application to amend the claim form made on 9 August 2024. The last act of victimisation relied upon in this context is said to have taken place on 15 November 2023 i.e. the dismissal. The primary limitation period therefore expired on 14 February 2024. Accordingly, the application to amend was about 6 months out of time. This was agreed by the claimant. The issue for me to decide was whether I should extend time to allow the claim to be considered by the Tribunal. In so doing, I must consider whether the claim was made before the end of some other period as the Tribunal thinks 'just and equitable’ (section 123 of the EA 2010). In addressing this question, I must have regard to the reason for the delay, and to the balance of prejudice caused to either party by either allowing or rejecting the claim.[46]Again, Mr Clarke correctly comment that whilst the absence of an explanation for the delay is unlikely to be determinative (Concentrix CVG Intelligent Contact Ltd v Obi 2023 ICR 1, EAT.), it is a relevant factor.[47]In terms of findings of fact, many of the matters referred to above are equally pertinent, and I adopt them here. The claimant could not, and did not, claim to be ignorant as to the existence of time limits. Many of the facts he relied upon in bringing his victimisation claim were within the knowledge of the claimant when he issued both of his ET1’s in May 2023.[48]The delay is significant in this case, and I took this very much into account when making my decision. However, the claimant gave several reasons for the delay in making the applications to amend his claim. I have discussed them above. As I have stated, they are not the strongest reasons, even when taken cumulatively. That being said, I recognise that the test set out in section 123 of the EA 2010 is more generous to claimants than the 'reasonably practicability’ test I applied above.[49]I also have regard to the fact that the claimant is a litigant in person, with all of the challenges that such a role brings. He has expressed difficulties with the processes which were no doubt genuine. Of course, this point has to be tempered by the criticism I have already made of the claimant, namely that to some extend his problems are self inflicted.[50]In terms of the balance of prejudice, I find that refusing to accept jurisdiction to hear the claim of victimisation would be calamitous for the claimant. He would be deprived of the opportunity of bringing a type of discrimination claim. There is sound public interest in permitting claimants to bring this sort of claim.[51]So far as the respondent is concerned, I had regard to all of the matters set out in the witness statement of Mr Scully. He highlighted the following issues (amongst other):(i) the difficulties with recalling historic verbal conversation relied upon by the claimant;(ii) the absence of any record of conversations which are said to have taken place on or following 1 March 2022 (paragraph 4.1.1 of the list of issues);(iii) problems with retention of messages on the respondent’s Microsoft messaging-chat function;(iv) the claimant’s line managers Mr Machin and Mr Lazorov left the employment of the respondent on 16 September 2022 and 30 June 2024 respectively;(v) Mr Walker, the HR business consultant who advised the claimant’s line managers, left the respondent on 8 December 2024.[52]There is clearly the risk of some prejudice arising from allowing this claim to proceed. However, in my view it is likely to be limited. A number of other relevant employees who worked with the claimant remain in the employee of the respondent. In particular, both Mr Scully and Mr Holland (both very relevant to the allegation of victimisation) remain within the respondent. It seemed to me that these are likely to be the primary witnesses fro the respondent. Those who have left the respondent have not, as far as I am aware, indicated that they are not prepared to provide any relevant evidence to the Tribunal.[53]In terms of the existence or retention of documents, there can barely be a case brought in the Employment Tribunal where this is not an issue to some extent. The respondent has been aware since at least 2024, that it faced litigation connected to the claimant’s relationship with his managers, particularly Mr Holland, and how they handled his disability and claims that reasonable adjustments were not made. Indeed, the claimant raised a written grievance about some of these issues at the time i.e. 5 May 2022 [385]. So the respondent has been on notice as to the wisdom of locating and retaining relevant documentation for quite some time. Mr Scully says he has no recollection of these matters, and no written record of them. I do not readily accept that evidence and in my view it would need to be tested at a final hearing if necessary. For instance, the grievance lodged by the claimant should have generated any number of contemporaneous documents. Accordingly, I take the view that any prejudice caused to the respondent is difficult to assess, but likely to be limited.[54]I also have regard to the fact that the respondent will, in any event, have to respond to a reasonable adjustments claim, so refusing jurisdiction in respect of this claim will not bring an end to the litigation for the respondent.[55]I do not take into account the general merits of the claim in this context. I have some sympathy for the points made by Mr Clarke in this regard. However, I am not satisfied that I have enough before me to adopt it as a factor in relation to the time limit issue (but please see the strike out application later). In my judgment, there is sufficient detail within the ET1, as summarised in the list of issues, for the merits of the claim not to be a significant factor here.[56]It was a finely balanced decision. I had regard to all of the above matters in the round. It was my judgement that it was just and equitable to extend time in relation to this claim based at least on the allegation that the claimant was dismissed as an act of victimisation. I do not make any findings as to whether the other acts relied upon at paragraph 4.2 amount to a series of acts. This can be left to the final hearing.[57]In summary, the Tribunal accepts jurisdiction in relation to the victimisation claim. Whether any claims should be struck out or subject to a deposit order?[58]In the light of my previous decisions, this was an application by the respondent to strike out the remaining claims, namely for failure to make reasonable adjustments; victimisation; and unauthorised deduction from wages. I was invited to strike to these claims as having no reasonable prospects of success under rule 38(1)(a) of the Employment Tribunal Procedure Rules 2025. Reasonable Adjustments[59]I turn first to the reasonable adjustments claim. It seemed to me the application relied upon what I regarded as an erroneous aspect of the list of issues. The PCP relied upon was “Did the respondent have a practice failing to follow Occupational Health recommendations for reasonable adjustments. The claimant alleges that OH recommended that he could work from home on reduced hours” (paragraph 3.2.1 of the list of issues). This did not make sense as a PCP in the context of this case, or in general terms.[60]It has been clear throughout that the claimant alleged that he should have been allowed to work either from home and/or on reduced hours after his knee injury. In part at least, the claimant places purported reliance on the occupational health report dated 20 September 2022 [515]. Mr Clarke is clearly correct to argue that the claimant’s reliance on that report is flawed in that it did not recommend working from home or on reduced hours. Mr Clarke also added that there was no evidence of the Respondent failing to follow occupational health recommendations. Indeed, there is some evidence that the respondent did follow an OH recommendations in relation to the claimant in respect of his migraines [320]. I accept this assessment of the evidence.[61]Mr Clarke’s submissions are well founded based on the drafting of the PCP as it was. As I have said, it made no sense as a PCP. This is because in my view the list of issues does not reflect the claim. In my judgment, the appropriate (indeed the only possible) PCP’s arising out of the way the claimant put his case are those set out at paragraph 3.2.2 and 3.2.3 of the list of issues below. These PCP’s properly reflect what it is that the claimant said, or was trying to say, in his claim form, and during the process which has followed.[62]Of course, I am loath to interfere with a list of issues which has been drafted by a fellow judge, and which has been the subject of apparent agreement by the parties. No doubt considerable time and energy was invested in the process of drafting the list. However, a list of issues is not a pleading, it is a case management tool. Where such a tool does not properly reflect the claim, and is not helpful to the Tribunal in deciding the case, then the interests of justice require that it be amended. I am not clear how the list came to be drafted in the way that it has. The history of this case is so complex that I took the view that it would be disproportionate to spend too much time investigating the matter. I am conscious that my follow judges have had much to contend with in this case, and that it easy to lose on focus on one small aspect of the case when engaged in the sort of case management that has been required here. I also have regard to the fact that the claimant is a litigant in person. The concept of PCP’s can be challenging for experienced lawyers. I was concerned in this case that there was a risk that the claimant would be seriously prejudiced by a lack of awareness of this issue. In my view this would run contrary to the overriding objectives.[63]Of my own volition, I therefore amended the list of issues. This was not an amendment of the pleadings. I am satisfied that it was plainly in the interests of justice to do so. I amended the list as set out at paragraph 3 of the list of issues below. In the light of this amendment, I rejected the application to strike out the claim. As drafted, the list of issues raised questions which require that a Tribunal consider evidence from both sides. It is at least arguable that the failure to make the adjustments pleaded resulted in a substantial disadvantage. There were reasonable prospects of success in general terms.[64]There is one exception to this finding. The respondent also argued that the claimant could not establish a substantial disadvantage compared to non-disabled people by reason of the sick pay scheme. His claim was, in effect, that he should be paid more than a non-disabled person in the same circumstances, which is an adjustment considered and refused in the case of O’Hanlon v Revenue and Customs Commissioners 2007 ICR 1359, CA. This relates to paragraph 3.2.1 of the list of issues.[65]I spent some time discussing this point with the claimant at the hearing. It was not a matter that he had given due consideration to in my judgment, notwithstanding that it had been very properly flagged up by Mr Clarke in his opening note. In fairness to the claimant, it is not a straightforward point. I advised him that he should get some legal advice on the issue prior to the final hearing. In my view, Mr Clarke’s submission are correct. However, having regard to the situation as a whole, I felt it inappropriate to strike out this aspect of the claim. However, I was satisfied that it was appropriate in the circumstances to make a deposit order in relation to paragraph 3.3.1 of the list of issues. I made an order in the sum of £100 based on the information provided to my by the claimant as to his means and income. I took the view that the claimant had at least £100 of disposable income at the end of each month.[66]I have issued a deposit order which is separate to this decision. Victimisation[67]I was firstly invited to strike out this aspect of the claim on the basis of issues relating to the first protected act relied upon (paragraph 4.1.1). This protected act is a report of discrimination by verbally the claimant allegedly made to Andrew Scully on 1 March 2022. Mr Clarke argued that that this part of the claim was bound to fail on the evidence in that the claimant had produced no evidence of the discussion; and that Andrew Scully’s witness statement indicated that he had no recollection of any such conversation. In addition, there appeared to be no documentary support for it. I rejected this aspect of the application. As I have explained already, it was my view that tMr Scully’s recollection and/or the present or otherwise of contemporaneous records needed to be tested at a final hearing. Witnesses would need to be cross-examined by each party to assess the truth of the allegation. In my view, it was premature to suggest that this matter should be struck out, when disclosure had not yet been completed, and/or when witness statement evidence had not yet fully evolved. There were clearly reasonable prospects of success.[68]Secondly, the application related to the protected act at paragraph 4.1.2, which is allegedly a report of discrimination made in a grievance of 10 March 2022. The claimant admitted that this was the written grievance at [385]. However, if one reads the document, it makes no such allegation. Mr Clarke submitted that in these circumstances, it was bound to fail as a protected act. On this point, I agree with Mr Clarke. After the conclusion of the hearing on 21 March 2025, I made a direction that the claimant identify the document(s) upon which he sort to rely in relation to what his now paragraph 4.1.2. On 3 November 2025, all the claimant was able to do was to direct me to the grievance at [385]. As stated, this clearly does not contain a report of discrimination. It can therefore not constitute a protected act for the purposes of section 27 of the EA 2010. Accordingly, I dismiss paragraph 4.1.2 of the list of issues as having no reasonable prospect of success. For the avoidance of doubt, the remainder of the victimisation claim continues to final hearing. Unauthorised deductions from wages[69]Mr Clarke argued this aspect of his application on the following basis. Employees of the respondent were subject to the Industrial ‘injury allowance policy’ at [241]. It was a discretionary scheme which determined whether payments should be made to employees incapacitated due to being injured whilst at work. The claimant was considered by the respondent under the terms of the scheme but was refused [596]. The reasons for the decision are set out in that document dated 19 October 2022.[70]It was further submitted that the Claimant had not brought this aspect of his claim as a breach of contract. He could not have done so because he was still employed when he presented the claim in May 2023. Any breach would not have been “outstanding on the termination of .. employment” and therefore outside the limited jurisdiction in the Employment Tribunals Act 1996 (s.3) and Employment Tribunals Extension of Jurisdiction (England and Wales) Order 1994.[71]In order to succeed in a claim brought under section 13 of the Employment Rights Act 1996 as this claim was, the Court of Appeal held in New Century Cleaning Co Ltd v Church 2000 IRLR 27 that a worker would have to show an actual legal, although not necessarily contractual, entitlement to the payment in question in order for it to fall within the scope of section 13. Unless a worker could show some other legal entitlement to a non-contractual discretionary payment, the worker would be unable to bring a claim under section 13 in respect of that payment.[72]As a consequence, Mr Clarke argued that this part of the claim could not succeed as there was no contractual or other legal entitlement, only a discretion. I agree with Mr Clarke. The claimant could provide no explanation as to how he would be able to bring himself within section 13. In the circumstances, it was impossible to conceive of an argument which might have provided reasonable prospects of success. I could not see how this position might have have changed even if the claimant had been legally represented. Therefore, no disadvantage arose out of him being a litigant in person in relation to this point. I was satisfied that it was also fair and proportionate to strike out this aspect of the claim having regard to all of the circumstances (applying Cox v Adecco Group UK & Ireland [2021] I.C.R. 1307). Claimant’s application under Rule 49[73]Finally, I deal briefly the claimant’s application to keep the identity of certain of the claimant’s witnesses from being disclosed to the respondent. The claimant could not be specific about the names of these witnesses, perhaps for obvious reasons. In broad terms, he wanted to call witnesses who remained in the employment of the respondent. However, he suggested that both he and the witnesses were concerned about adverse consequences for the witnesses if they could be identified by the respondent. The only evidence the claimant adduced in supported these concerns was the way he said he had allegedly been treated by the respondent when he made complaints about his employer.[74]In my judgment, the application demonstrated a misunderstanding of the scope of Rule 49. It is concerned with the public disclosure of any aspect of proceedings. In my view, it does not permit a Tribunal to keep the identity of witnesses from a party to the proceedings.[75]Even if I am wrong about that, it is my judgment that the circumstances come no where near justifying such a drastic step. The courts and tribunals in the UK pride themselves on conducting open and transparent justice. This is the default position. The Tribunal must consider the requirements of Article 10 of the European Convention in Human Rights i.e. the right to freedom of expression, when conducting proceedings and when applying rule 49. It must be in the interests of justice to deviate from the concept of open justice.[76]In my view there is insufficient evidence of a risk of harm to anyone involved or potentially involved in the case. Neither are there sufficient grounds for concluding that the respondents would behave inappropriately in relation to the claimant’s witnesses, who would be protected by the section 27 of the EA 20210 themselves.[77]Furthermore, to conceal the identity of witnesses from the respondent would be problematic in terms of it putting its defence to the claims. It would make disclosure and cross-examination difficult. In my judgment, it would seriously undermine the ability of the respondent to challenge the claimant’s case. This is fair from being in the interests of justice.[78]Accordingly, I refused the claimant’s application under rule 49.[79]Finally, I apologise for the delay in promulgating these decisions. This has been the result of pressure of work. i hope that it has not caused any further anxiety to the parties. Approved by: Employment Judge R Wood 8 January 202614 January 2026 Appendix: The list of issues The parts of the list of issues which are scored through are those which were either found to be out of time, or which were struck out, by me. Those parts which are underlined, are those parts added by me as an amendment to the list of issues. The Complaints 8. The claimant is making the following complaints: 8.1. Unfair dismissal; 8.2. Failure to make reasonable adjustments 8.3. Victimisation 8.4. Detriment on grounds related to union membership or activities 8.5. Unauthorised deduction of wages The Issues 9. The issues the Tribunal will decide are set out below.
The Issues
[1]Time limits 1.1. Given the date the claim form was presented, the dates of early conciliation and the dates of determination of the various amendments, some of the claimant’s complaints may not have been brought in time. 1.2. Were the [discrimination and victimisation complaints] made within the time limit in section 123 of the Equality Act 2010? The Tribunal will decide: 1.2.1. Was the claim made to the Tribunal within three months (plus early conciliation extension) of the act to which the complaint relates? 1.2.2. If not, was there conduct extending over a period? 1.2.3. If so, was the claim made to the Tribunal within three months (plus early conciliation extension) of the end of that period? 1.2.4. If not, were the claims made within a further period that the Tribunal thinks is just and equitable? The Tribunal will decide: 1.2.4.1. Why were the complaints not made to the Tribunal in time? 1.2.4.2. In any event, is it just and equitable in all the circumstances to extend time?[2]Disability 2.1. Pursuant to the decision of the Tribunal at the preliminary hearing on 19-21 March 2025 and 3 November 2025, the claimant did have a disability, as defined, at the relevant time, namely a knee injury.[3]Reasonable Adjustments (Equality Act 2010 sections 20 & 21) 3.1. Did the respondent know or could it reasonably have been expected to know that the claimant had the disability? From what date? 3.2. A “PCP” is a provision, criterion or practice. Did the respondent have the following PCPs: 3.2.1. Did the respondent have a practice failing to follow Occupational Health recommendations for reasonable adjustments. The claimant alleges that OH recommended that he could work from home on reduced hours; 3.2.2. Did the respondent have a practice of requiring employees to work from contractual place of work i.e. in the claimant’s case, the Greenford Depot; 3.2.3. Did the respondent have the practice of requiring employees to work their full contracted hours. 3.3. Did the PCPs put the claimant at a substantial disadvantage compared to someone without the claimant’s disability, in that:3.3.1 The claimant was forced to take sick leave and therefore only receive sick pay rather than full pay (the claimant was in receipt of reduced pay from 13 November 2022 to 14 March 2023); and/or3.3.2 The claimant was/would be caused additional pain and discomfort when he returned to work. 3.4. Did the respondent know or could it reasonably have been expected to know that the claimant was likely to be placed at the disadvantage? 3.5. What steps could have been taken to avoid the disadvantage? The claimant suggests: 3.5.1. The respondent could have followed the OH recommendation and allowed him to work from home on reduced hours; 3.5.2. The respondent could have paid the claimant full pay whilst he was not working but able to work from home on reduced hours; 3.5.3. The respondent could have allowed the claimant to work from home; 3.5.4. The respondent could have allowed the claimant to work reduced hours. 3.6. Was it reasonable for the respondent to have to take those steps and when? 3.7. Did the respondent fail to take those steps?[4]Victimisation (Equality Act 2010 section 27) 4.1. Did the claimant do a protected act as follows: 4.1.1. On 1 March 2022 and during subsequent telephone discussions/teams messages between April and July 2022 the claimant advised Andrew Scully of the respondent’s HR team that Colin Holland had refused to make reasonable adjustments in relation to migraines. 4.1.2. On 10 May 2022 the claimant submitted a grievance to the Head of Department, Ed Axe, which included reference to Colin Holland refusing to make reasonable adjustments. 4.2. Did the respondent do the following things: 4.2.1. In or around August or September 2022 Andrew Machin, on instruction from Colin Holland, told an Operations Manager for Greener Ealing called Derek to make a complaint about the claimant. 4.2.2. In or around April 2023 Derek Rawson, Fire Safety Manager wrote an email saying that the claimant had performed badly and had not done what was asked of him, the claimant says at the behest of Colin Holland with whom Mr Rawson had a close relationship. 4.2.3. Colin Holland told a tenant called Sandra Hewey to make a complaint about the claimant. Sandra Hewey refused but this nevertheless resulted in her sending an email on 10 May 2023 to the claimant’s acting line manager Jovan Lazarov which Colin Holland said was an official complaint. 4.2.4. In April/May 2023 Colin Holland told the claimant’s acting line manager, Jovan Lazarov that he had received a complaint from a contractor when that complaint did not exist. 4.2.5. In or around May 2023, Colin Holland gave the claimant a formal warning lasting for 6 months in respect of the Sandra Hewey complaint and he erroneously took into account the earlier complaint from Derek at Greener Ealing. 4.2.6. On 15 November 2023 dismiss the claimant. 4.3. By doing so, did it subject the claimant to detriment? 4.4. If so, was it because the claimant did a protected act?[5]Remedy for discrimination or victimisation 5.1. Should the Tribunal make a recommendation that the respondent take steps to reduce any adverse effect on the claimant? What should it recommend? 5.2. What financial losses has the discrimination caused the claimant? 5.3. Has the claimant taken reasonable steps to replace lost earnings, for example by looking for another job? 5.4. If not, for what period of loss should the claimant be compensated? 5.5. What injury to feelings has the discrimination caused the claimant and how much compensation should be awarded for that? 5.6. Has the discrimination caused the claimant personal injury and how much compensation should be awarded for that? 5.7. Is there a chance that the claimant’s employment would have ended in any event? Should their compensation be reduced as a result? 5.8. Did the ACAS Code of Practice on Disciplinary and Grievance Procedures apply? 5.9. Did the respondent or the claimant unreasonably fail to comply with it by [specify breach]? 5.10. If so is it just and equitable to increase or decrease any award payable to the claimant? 5.11. By what proportion, up to 25%? 5.12. Should interest be awarded? How much?.