Ms A CanajClaimantAtalian Servest LimitedRespondent
Before
Employment Judge McFatridgeMr Kadirgolam (instructed by Solicitor) for claimantMs Stonehouse for respondentHR Consultant for respondentDate 12 October 2021
JUDGMENT
[1]The claimant having failed to substantially comply with paragraphs 1a, 1b, 1c of the unless order issued on 21 April 2021 the claims of direct discrimination, harassment and a failure to make reasonable adjustments were dismissed by operation of rule 30 of the Employment Tribunals (Constitution and Rules of Procedure) regulations 2013 on 8 May 2021.[2]The claimant shall no later than 7 September 2021 confirm to the Tribunal whether she is seeking to amend her claim so as to include a claim of discrimination arising from disability in terms of section 15 of the Equality Act. In this event the respondent shall advise the Tribunal no later than 21 September 2021 whether they oppose the amendment. In the event E.T. Z4 (WR) of the amendment being opposed the matter will be dealt with at a preliminary hearing to be held by telephone on 12 October 2021. NOTE[1]This case has a lengthy history. The claimant submitted a claim to the Tribunal in which she claimed disability discrimination, personal injury and unpaid wages. The claims of personal injury and unpaid wages were subsequently dismissed following withdrawal. The respondent submitted a response in which they denied the claims. The first preliminary hearing took place on 20 August 2020 following which the claimant was ordered to provide further and better particulars of her claim of disability discrimination. Regrettably the claimant did not comply with this order or at least did not do so in a manner which was acceptable and the matter was raised at two further preliminary hearings. Eventually on 21 April 2021 Employment Judge Gall issued an unless order. It is as well to set out the terms of the unless order here. It stated “1. Within 14 days of the date of this order being sent to parties the claimant will(a) Set out what is said to have been the act(s) of direct discrimination. She will specify the less favourable treatment she received identifying a comparator actual or hypothetical. She will name any actual comparator. If there is none she will define the hypothetical comparator. She will set out why it is that she regards any difference in treatment to be due to her disability.(b) Set out what provision, criterion or practice (“PCP”) of the respondents she founds upon in her claim of alleged failure to make reasonable adjustments. She will detail a substantial disadvantage at which she says this PCP placed her and other disabled employees compared to employees who are not disabled. She will detail the reasonable adjustment she says which ought to have been made to avoid the disadvantage. She will confirm if she raised those with anyone within the respondents’ organisation and, if so, who that was and when these were raised.(c) Set out the act(s) of harassment alleged, when they occurred and who was involved. She will also say why she regards them as being related to her disability.(d) In relation to the proposed claim under Section 15 of the Equality Act 2010, the claimant will specify the ‘something arising’ from her disability and the unfavourable treatment which is said to have resulted because of that.(e) In relation to her position that she informed the respondents of her disability, the claimant will set out how it is that she says the respondents had knowledge of her disability and in particular what it is that she said to inform the respondents of her disability, her mental health impairment, to whom she said this and when she said it.” The order was sent to the parties on 23 April 2021 which meant that the last date for compliance was 7 May 2021. On that date the claimant’s representative sent a document to the Tribunal entitled “Response to the Employment Tribunal’s unless order from the preliminary hearing of 21 April 2021”. It was the respondent’s position that the claimant’s response did not amount to substantial compliance with the unless order and that as a result the claimant’s claims are automatically dismissed on 8 May. The claimant did not accept this. A preliminary hearing was fixed in order to determine this matter and also to deal with any further case management of the case which might be required. At the hearing I asked each party to set out their position starting with the respondent. I then gave each party the opportunity to comment on the submissions made by the other. I shall set out the submissions briefly below. Respondent’s submissions[2]The respondent’s representative referred to and essentially repeated what was stated in a document entitled “Respondent’s reply to claimant’s additional information provided on 7 May” which had been sent to the Tribunal on or about 21 May 2021. Essentially her position was that the additional information provided by the claimant in respect of the claims of direct discrimination, failure to make reasonable adjustments and harassment did not substantially comply with the order. Furthermore, the claims as drafted, even with the additional specification lodged on 7 May were entirely inept and did not plead a relevant case which the Tribunal could deal with under these heads.[3]With regard to the claim of direct discrimination the claimant had identified the act of dismissal as the “less favourable treatment” alleged. The claimant had however failed to relate this in any way to her disability. At its highest the claimant was saying that the claimant had been dismissed for forgetting to follow an instruction and if it were accepted that forgetfulness was a concomitant of her disability (which it was not) then this could potentially amount to a claim of disability arising from discrimination but could not amount to a claim of direct discrimination.[4]With regard to the claim of failure to make reasonable adjustments the PCP alleged was the respondent’s instruction that the claimant must not return staff to rooms that had been cleaned. It was the respondent’s position that the claimant had entirely failed to show why that PCP placed the claimant at a particular disadvantage because of her disability. The respondent was also critical of the information provided by the claimant in relation to a suggested reasonable adjustment on the basis that it was not something which could prevent the PCP from having such adverse effect as might exist.[5]With regard to the claim of harassment the respondent’s position was that the claimant had entirely failed to link the alleged behaviour (which they accepted might amount to unwanted conduct which had the purpose or effect described in section 26(1)(b) of the Act) but had entirely failed to suggest how this alleged conduct was related to the claimant’s protected characteristic of disability.[6]The respondent did not dispute that the claimant had complied with the requirement to set out those occasions where she alleged she had disclosed her disability to the respondent albeit the respondent still disputed that they knew or could reasonably have been expected to know that the claimant was disabled at the relevant time.[7]With regard to the proposed claim of discrimination arising from disability under section 15 the respondent’s position was that this claim was not made in the original ET1. If the claimant wished the Tribunal to deal with such a claim then the claimant would require to make a formal application to amend her claim so as to include this. Such an application would be opposed by the respondent. Claimant’s position[8]The claimant’s position was that the matter was an important one for the claimant and that she had a serious disability. Despite the fact that the respondent was not challenging the answer to the unless order in relation to the information provided relating to knowledge of disability, the claimant’s representative made a point several times of advising that the respondent were well aware of the claimant’s disability and that they were under a duty from the outset of her employment to make reasonable adjustments.[9]I stressed the point that what was disputed here was whether the claimant had complied with the order. I also pointed out that the respondent’s position was that despite the best attempts of various Employment Judges over a number of preliminary hearings and after a year of trying the claimant had still not properly set out a relevant claim under three of the heads which she was claiming. It was the view of the claimant’s representative that the claimant had set out enough information to show that the claimant was dismissed because of her disability. He then, in relation to the harassment claim, made a statement that the claimant had not been allowed to speak. He believed that the facts in the case should be considered by the Tribunal. It was his position that the claimant could reasonably have expected that some adjustments would be made after she mentioned her disability to the respondent.[10]Despite various attempts by me to have the claimant’s representative directly address the issues raised by the respondent’s representative he did not do so.[11]With regard to the section 15 claim he accepted that there was no section 15 claim made in the original ET1. It was however his position that the facts of the claim were set out and that any amendment should be allowed on the basis that it was simply a relabelling. It should be noted that the respondent’s representative directed me to the relevant part of the ET1 and set out her view that the facts now being relied upon by the claimant in relation to forgetfulness being a symptom of her disability were not mentioned in the ET1. Discussion and decision[12]I considered that the criticisms of the claimant’s pleadings made by the respondent were entirely justified. It is a matter of some concern that the claimant has entirely failed to plead a relevant case under any of the three heads of claim referred to despite having had over a year to do so and despite the various comments made by previous employment judges. In my view there is no doubt that, even with the additional information provided, the pleading is woefully defective.[13]In this case however it was not my job to make an assessment as to whether the claim should be struck out or not. I noted that at the previous preliminary hearing conducted by Employment Judge Gall the respondent were asking for the claims to be struck out on essentially on the same basis as they mentioned today. On that occasion Employment Judge Gall indicated to the claimant’s representative that he considered the respondent’s criticisms well founded but indicated that he was prepared to give the claimant a further final chance by complying with the order which he had made. The order was an unless order. It was drafted in such a way that had the claimant complied with it then she may have cured at least some of the glaring deficiencies in her pleadings. The question for me was to decide whether or not there had been substantial compliance with the order or not. In my view it was clear that in relation to the three claims currently before the Tribunal there had been no substantial compliance.[14]With regard to the claim of direct discrimination the claimant had failed to set out why it is that she regarded any difference in treatment to be due to her disability. With regard to the claim of a failure to make reasonable adjustments the claimant has set out a PCP however she has failed to detail the substantial disadvantage at which she says this PCP placed her. With regard to the harassment claim the claimant has failed to state how the alleged unwanted conduct is linked to her disability. In my view there has been no substantial compliance with the order.[15]The rule regarding unless orders is set out at rule 30 of the Tribunal Rules. So far as I am aware the Tribunal has not yet given written notice to the parties confirming that the claim or part of it has been automatically dismissed following non-compliance. My view therefore is that as a matter of case management such a written notice ought to be sent out to the parties confirming that the claims of direct discrimination, a failure to make reasonable adjustments and harassment have been dismissed in terms of Rule 30.[16]Whilst these three claims are the only claims currently before the Tribunal I feel that given that the question of a claim under section 15 appears to have been discussed at the previously case management preliminary hearing the claimant ought to be given the opportunity to seek to amend his claim so as to include a claim under section 15. I make no comment as to whether such an amendment ought to be permitted or not but I believe that the claimant ought to be given a further opportunity to pursue this. Accordingly, I indicated to the claimant’s representative at the close of the hearing that should he wish to amend the claimant’s claim then he must write to the Tribunal within 14 days setting out the terms of the amendment sought. The respondent’s representative had indicated that such an amendment would be opposed however I also consider that it is appropriate that the respondent be ordered to confirm their position no later than 14 days after this. There will then be a further preliminary hearing on 12 October in order to deal with the question of whether or not the amendment should be allowed. I also indicated to the parties that it would be helpful if, in advance of the hearing on 12 October, they could produce a written note of argument setting out their respective positions but given the fairly tight timescale I will make no order to that effect.
REASONS
[1]This Preliminary Hearing (“PH”) was conducted by telephone conference call on 12 October 2021. Mr Kadirgolam participated for the claimant. Ms Stonehouse participated for the respondents.[2]The PH was set down to determine whether or not an amendment to the claim would be permitted. The claimant’s application to amend was opposed. The respondents had set out their opposition to the application as an attachment to an email of 21 September. I had the advantage of having read the application to amend and the opposition to it, as well as having considered the file, prior to the PH. It was very helpful to have had this opportunity as I was familiar with the basis of the application and opposition.[3]I heard from Mr Kadirgolum in support of the amendment application and then from Ms Stonehouse in opposition to it. Mr Kadirgolum was then given the opportunity to reply to the opposition. The PH then adjourned for 20 minutes or thereabouts while I considered the application and opposition. It then reconvened and I informed the representatives of my decision on the application and the reasons for reaching that decision. This Judgment reflects the reasons given orally.[4]The claimant seeks to amend the claim to include a claim in terms of Section 15 of the Equality Act 2010. If permitted that would be the sole ground of claim. Other elements originally in the claim are at an end following the view taken by a fellow Employment Judge that there had not been substantial compliance with an Unless Order.[5]The principles detailed in Selkent Bus Co Ltd v Moore 1996 ICR 836 apply to an amendment application. Both parties relied on those principles. They involve consideration of the nature of the amendment, its timing and the prejudice, injustice and hardship which would be involved if the amendment is allowed on the one hand or is refused on the other. Regard requires to be had to all the circumstances of the case. The Tribunal has an exercise of discretion to carry out in considering an application to amend. The interests of justice require to be at the heart of the thinking of the Tribunal.[6]The amendment sought in this case is not a simple relabelling of facts already pled. It is accepted that it concerns events at time of the dismissal of the claimant. Dismissal is already referred to in the claim in relation to the elements of claim no longer proceeding. The claim centered around dismissal and so that matter has been always been part of the basis of the claim. The proposed amendment does not contain an allegation of a new incident of discrimination. It is a revised and different set of facts as to what is said to have happened in the dismissal meeting, however, when considered against the version pled prior to the amendment being presented.[7]The claimant’s role was that of a supervisor of cleaning. In the claim form the claimant says she was told after 6 days of work that she was too strict. She says that she was informed that this was as she called staff back into the rooms which were regarded by her as not being up to the standards of cleanliness required. She also says, paraphrasing it, that her job as a supervisor involved ensuring that appropriate standards of cleaning were met. That was the purpose of a supervisor. She said in the claim form that the reason for termination of her employment given to her was an absurd reason, so discrimination must have lain behind the decision to end her employment after 6 days. The reason given to her had no proper foundation in her view and led her to conclude that discrimination had occurred.[8]The claim form was presented on 13 March 2020. The claimant has had legal representation throughout, although there was a change of representation to her present agents around August 2020.[9]There have been procedural steps in the case. There have been 4 case management PHs at which further specification of the claim has been sought.[10]The claimant provided further details of her claim at times prior to the application to amend. She stated, for example, that she was told the respondents were not happy with her performance. This issue with performance was, she said, due to her disability. This was on 16 March 2021.[11]In April 2021 she said that she was told that, as supervisor, she did not need to check the rooms which had been cleaned. She did check as she had forgotten the instruction due to her disability, she said. Her dismissal had resulted.[12]In response to the Unless Order she said that she had been told not to “return the staff to rooms for cleaning” but forgot due to her mental health. It was said that the dismisser said “How many times I told you not to return staff” (sic). This suggests she was potentially dismissed for not adhering to an order/instruction.[13]The amendment sets out her position as being that that she forgot the instruction not to call staff back to a room. Calling staff back to a room was the reason she was dismissed. She forgot the instruction not to do that due to a mental health impairment, it is said.[14]The claimant has very difficult and unfortunate background. She has a traumatic past. The respondents accept that at the relevant time she was disabled in terms of the Equality Act 2010.[15]I considered the passage of time since the claim commenced (having been presented on 13 March 2020) and the time of the application to amend being intimated (13 September 2021). If presented on the latter date, the claim would be well out of time. That is not conclusive, however. There was no prejudice said to exist purely through passage of time. The events at time of dismissal have been at the heart of the claim since it was presented. The respondents have therefore had the opportunity to obtain relevant evidence about the dismissal. It was not said, for example, that there was any issue in gathering of evidence about the allegation in the proposed amendment due to the passage of time.[16]I recognised that there would be prejudice to the respondents if the amendment was permitted to proceed. The claim is currently at an end in that the other grounds of claim have been dismissed due to non-compliance with an Unless Order. The respondents would face a claim if amendment was permitted. There would be consequent expense and risk of an award against them.[17]If the amendment was not permitted, the claim would be at an end. The claimant would be denied the right of action in respect of a claim of discrimination. There would be undoubted prejudice to the claimant in that situation in that she would have no claim.[18]In my view the balance on this point favoured the claimant given the absence of ability to claim if the amendment was not permitted.[19]I turned to consider the nature of the amendment. I was very conscious of what I regarded as a significant change in the claimant’s position as set out in the claim form as against her position in the proposed amendment.[20]In the claim form, the claimant was describing a situation where the position of the respondents that she should not be checking cleaned rooms or sending staff back there was something “out of the blue”. It did not make sense and sat ill against her role as supervisor, she said. It was, as she described it, “absurd”. In the lead up to the proposed amendment, however, her position was that the respondents said they had told her countless times not to check cleaned rooms and send staff back to rooms, but that she had checked them and sent staff back. This was, she said, due to having forgotten the instruction given to her. In the proposed amendment she again states that she forgot the instruction not to call staff back to rooms. She goes on to say that the reason she forgot the instruction was because of her disability.[21]Taken with the other changes in position in response to previous requests for further and better particulars I found that the nature of the amendment, with its changed basis of case brought, resulted in it not being in the interests of justice for the amendment to be permitted. I kept in mind that the claimant had been professionally represented throughout the lifetime of the claim. The claim has been current for some time. I refer earlier to the various case management PHs which have taken place. I had a real concern that the claimant had refined her position and, to an extent at least, tailored it to map out a claim which detailed the elements required for a Section 15 claim. This was only done after specific clarification of the constituent elements of such a claim had been discussed at case management PHs.[22]As I explained to parties, I had a degree of hesitation in exercising my discretion by concluding that the application to amend would be refused. I was very conscious that it would bring the claim to an end. I was also conscious that this is a discrimination claim. There is a public interest in such claims proceeding. A further factor was genuine sympathy and concern for the claimant given her very traumatic and difficult past. I found the decision an anxious one and one of fine balance.[23]The factors which ultimately persuaded me to the view to which I came were the new allegations now sought to be made as to the events at dismissal, those events being described as being different to what had been the basis of claim at time of presentation in March 2020. I was not persuaded that there was a good reason for the apparent contradictory version and for the delay, particularly when the claimant was legally represented throughout.[24]I express no view as to the merits of the claim, whether as initially presented or as now potentially set out. I should record that the respondents do not accept that they knew of the claimant’s disability or that discriminatory conduct occurred.[25]I am grateful to Mr Kadirgolam and Ms Stonehouse for their submissions and for their co-operation in permitting time for reflection and consideration during the adjournment between submissions and the decision being made known.