Mrs H C Shea v DL Insurance Services Ltd: 4105158/2024

EMPLOYMENT TRIBUNALS (SCOTLAND)

Case No 4105158/2024

Between

Mrs H Connor SheaClaimant

DL Insurance Services LimitedRespondent

Before

Employment Judge E Mannion

Mrs Niaz-Dickinson (instructed by Barrister) for respondent

Date 31 March 2025

JUDGMENT

20 The Judgment of the Employment Tribunal is as follows:

[1]The claimant’s case of race discrimination subject to an Unless Order is not struck out.

[2]The claimant’s application for amendment is granted. The head of claim of unfair dismissal and the additional information provided on 13 October 2024 25 form part of her claim.

[3]The respondent’s application that the claim be dismissed for lack of jurisdiction on the grounds of time bar is refused.

[4]The respondent’s application for strike out is refused.

[5]The respondent’s application for deposit orders is refused. 30 6. The Tribunal orders the following: a) Within 21 days of receipt of this judgement, the claimant will set out in writing the link between the alleged incidents as set out in paragraph DL Insurance Services Limited 6 under the heading "Age Discrimination” in the paper apart to the ET1 and her age. b) Within 21 days of receipt of this judgment, the claimant will set out in writing the link between the alleged incidents as set out in paragraph 5 1 under the heading “Race Discrimination” in the paper apart to the ET1 and her age. Further procedure

[7]A preliminary hearing to discuss case management will be listed and a notice of hearing will follow. At this preliminary hearing the issues of the case will be 10 discussed, in particular the specific legal labels such as harassment or direct discrimination that apply to the specific discriminatory events. The claimant should come to that hearing having considered the appropriate legal label for the specific discriminatory events and be prepared to confirm this at the hearing. Following this hearing, the respondent will be given an opportunity to 15 amend their ET3 to respond to the claim and amendment. At this hearing, the parties will be expected to give their availability for a final hearing and will also be asked their view on the composition of the Tribunal panel at that hearing. Presidential guidance on panel composition is available at the Tribunal website. 20 REASONS Background 1. The claimant lodged a claim for discrimination and arrears of pay on 20 May 2024, noting that her discrimination claim related to age, race and sexual orientation. The claimant in her ET1 form at section 8 ticked the boxes for 25 age, race and sexual orientation discrimination and also ticked the box regarding arrears of pay. (Page 7 of Bundle) In section 8.2 the claimant stated “Please find attached document in support of my claim. It details just some of the incidents that occurred at work since 2022 – present day. In November 2023 I started a formal Grievance procedure, as my working conditions were 30 getting unbearable. Constantly picked on and not treated the same as other members of the team. They were taking my bonus away and I felt that it was leading to Constructive dismissal.” Section 8.2 then continues on to provide some background detail on other matters and indicating that the claimant has documentary evidence to substantiate her claim. (page 8 of Bundle) The 5 paper apart attached set out detail of events which she alleged occurred under the headings age discrimination, race discrimination and sexual orientation discrimination. (pages 14 – 17 of Bundle). 2. The respondent lodged an ET3 resisting the entire claim. At paragraph 2 of the Grounds of Resistance, (page 32 of Bundle) the respondent sought a case 10 management order for the claimant to provide further particulars of the age, race and sexual orientation elements of the claim and the claim for “other payments”. In the section of the Grounds of Resistance entitled “Legal Issues” (pages 35 – 38) the respondent set out their legal defence to the claims of age, race and sexual orientation discrimination as well as “Other

[15]Payments/Unlawful Deduction from Wages”. In the latter it was noted that the claimant failed to particularise her claim but that in any event the respondent denied making “any unlawful deductions as alleged or at all.” 3. On 24 June 2024, the Tribunal wrote to the parties with a Notice and Order stating that on consideration of the file, the race discrimination elements of the 20 case had no reasonable prospect of success as that section referred to statements around living in Scotland, not near Doncaster with no reference to her race. Judge McManus ordered the claimant to present written representations explaining why that part of the claim should not be dismissed. The claimant was required to provide these written representations by 8 July 25 2024. (pages 43-44) 4. On 25 June 2024, the respondent made an application to strike out the claimant’s case on the grounds that the Tribunal did not have jurisdiction under Section 123 of the Equality Act 2010 or alternatively under Rule 37(1)(a) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 30 2013 (“the ET Rules”). The application also sought a deposit of £1,000 as a condition of continuing to advance each allegation or argument referred to above. (pages 45-48) 5. On 30 June 2024, the claimant submitted a written submission in response to the respondent’s application and the Tribunal’s direction of 24 June 2024. (page 52-56) 6. At a preliminary hearing on 7 October 2024, the claimant indicated she 5 intended to amend her claim to bring a claim relating to the termination of her employment which had occurred on 14 June 2024. The respondent’s application for strike out also required to be considered. A preliminary hearing to consider the respondent’s application for strike out and the claimant’s application to amend was listed to take place on 14 November 2024 by Cloud 10 Video Platform. The claimant was also directed to specify her claim. 7. The claimant’s application to amend was subsequently received on 10 October 2024 along with four documents of further information on 13 October 2024. The respondent objected to the amendment on 28 October 2024. 8. In advance of the preliminary hearing, the respondent submitted a bundle of 15 pleadings on which they intended to rely and a skeleton argument. At the outset of the hearing, the claimant indicated that she had not received the bundle, only the index. After a short adjournment, this was provided to the claimant who indicated that she was happy to proceed directly to the hearing rather than review the bundle. 20 9. At the outset of the hearing, I noted that the application of the respondent for strike out appeared to cover both Section 123 of the Equality Act 2010 and Rule 38 of the ET Rules (previously Rule 37) and that the tests for both are separate. I also noted that there was no indication that evidence would be heard. There was a discussion around the claimant, appearing from Spain, and 25 whether she intended to give evidence. She confirmed that she would not be giving evidence. There were no respondent witnesses. Mrs Niaz-Dickinson noted that the burden of proof to show a claim is in time falls to the claimant. Her submission was that if the claimant does not provide evidence as to whether it was reasonably practicable to lodge her claim in time, that is a matter 30 for the claimant. I noted that at the time the claimant submitted her claim, she continued to be an employee of the respondent, that the respondent’s position is that there was no continuing act but that the claimant’s position in effect is that there was. Mrs Niaz-Dickinson confirmed that the respondent’s position that there was no continuing act of discrimination. I drew her attention to the decision of Ellenbogen J in E v X, L and Z (

UKEAT/0079/20/RN

) and 5 specifically that once a decision is made on time bar, it will bind a future tribunal, noting that we will not be hearing evidence. Mrs Niaz-Dickinson agreed and acknowledged that a decision on time bar if made now would be binding and that it may be considered unusual to make a decision purely on the basis of Section 123 when no evidence is heard but that the respondent’s 10 application is that there is no jurisdiction as the claim is time barred or in the alternative, that the claim should be struck out on the basis it has no reasonable prospects of success. 10. It was also explained to the claimant that the purpose of the hearing was not to decide if her claims of discrimination were successful. I was clear that I would 15 not make any findings on the substance of the claim. Instead, the purpose was to consider the parameters or boundaries of the claim going forward, if at all. The claimant was reminded of this as she made her submissions. Relevant Law 11. A Tribunal is required to have regard to the overriding objective, found in the

[20]Rule 3 (previously Rule 2) of the ET Rules. The overriding objective states as follows: The overriding objective of these Rules is to enable the 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; 25 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. 12. The strike out provisions are set out in Rule 38 (previously rule 37) of the ET 5 Rules which allows for a claim or part thereof to be struck out if it “has no reasonable prospect of success”. 13. Where a strike out application is made on the ground of no reasonable prospects of success the Tribunal must take a view on the merits of the case and only where satisfied that the claim or response has no reasonable 10 prospects of success can it consider exercising its power to strike out. 14. The EAT held that the striking out process requires a two-stage test in HM Prison Service v Dolby

[2003] IRLR 694

, and in Hassan v Tesco Stores Ltd

UKEAT/0098/16

. The first stage involves a finding that one of the specified grounds for striking out has been established; and, if it has, the 15 second stage requires the Tribunal to decide as a matter of discretion whether to strike out the claim. The second limb of the test requires consideration of the overriding objective of the ET Rules, proportionality and whether a fair hearing is still possible. 15. It is necessary for the tribunal to take the claimant’s case at its highest for the 20 purposes of a strike out application under Rule 37(1)(a) as per Malik v Birmingham City Council and another EAT 0027/19. Consideration should be given to whether there are crucial facts in dispute where there has been no opportunity for evidence on those disputed facts. In such cases, strike out is unlikely to be appropriate. 25 16. Guidance on approaching strike out applications against litigants in person was provided by the EAT in Cox v Adecco Group UK & Ireland and ors

2021 ICR 1307

EAT. Where a claim would have reasonable prospects of success had it been properly pleaded, consideration should be given to the possibility of an amendment, subject to the usual test of balancing the justice of permitting or refusing an amendment, taking into account the relevant circumstances. 17. Section 123 of the Equality Act 2010 provides that proceedings under the act “may not be brought after the end of –(a) the period of 3 months starting with 5 the date of the act to which the complaint relates, or

(b) such other period as the employment tribunal thinks just and equitable.” 18. Kaur v City of Edinburgh Council

[2013] CSIH 32

requires to be considered in cases where a party is stating that a claim is out of time, but evidence is not heard on the acts of discrimination at the center of that claim. In that case, 10 the Court of Session agreed with the EAT’s conclusion that the claimant’s claims of discrimination should not have been struck out on the basis that they were raised out of time, when this decision was made without hearing evidence on the alleged acts. When considering the question of time bar where the alleged discriminatory acts span a period of time, the Tribunal 15 should be concerned with whether a claimant had made out a prima facie case that the alleged discriminatory acts are capable of forming a continuing act which falls within the time limit for raising a claim in Section 123 of the Equality Act 2010. 19. There is no specific Rule which covers amendment applications. Rather the 20 power to amend a claim fall into the case management powers set out at Rule 30 and Rule 31 (previously Rules 29 and 30) of the ET Rules. The lead case in this area is Selkent Bus Co Ltd v Moore

1996 ICR 836

, which sets out the key factors which should be taken into account in an amendment application. When balancing the interests of justice and the relative hardship 25 to the parties, a tribunal should consider the following factors when determining an amendment application: a) The nature of the proposed amendment b) The relevance of time limits c) The timing and manner of the application 30 d) Any other relevant factors 20. While the above factors are relevant to the Tribunal’s consideration, Taylor J in Vaughan v Modality Partnership

2021 ICR 535

, EAT stated that they are not a checklist of requirements. The core exercise for a Tribunal in allowing or refusing the amendment is to balance the injustice and hardship to the 5 parties.

[21]Deposit orders are provided for in Rule 40 (previously Rule 39) of the ET Rules. This Rule allows the Tribunal to make an order requiring a party to pay a deposit of no more than £1000 in order to advance an allegation or argument, where the Tribunal considers there is little reasonable prospects 10 of success of the specific allegation or argument. Submissions

[22]Both parties made submissions, with Mrs Niaz-Dickinson providing a skeleton argument in advance of the hearing which was expanded upon by oral submissions. Reference is made to specific elements of the parties 15 submissions below but for the avoidance of doubt, the entirety of the party’s submissions were fully considered when coming to my decision.

[23]I refer to the Notice and Order of 24 June 2024 and the claimant’s response, 20 at page 55 of the Bundle which addresses the Tribunal’s Notice.

[24]This written submission from the claimant dated 30 June 2024 does not specify the race or ethnic origin relied upon nor does it explain why this head of claim should be retained. Rather, it sets out four events which occurred at some point during the claimant’s employment and a statement as to the 25 number of Scottish employees within the respondent Motor Sales and Retention department. Two of these events, at paragraphs two and three on page 55 do not refer race at all. Paragraph one refers to a statement about living in Scotland versus Doncaster and paragraph four is an allegation that the claimant’s accent was mocked.

[25]Paragraphs one and four, taken together, arguably set out a claim that the claimant was discriminated due to her Scottish race. These claims lack particularization as to the legal basis i.e. whether the claimant states these comments amounted to direct discrimination or harassment or some other 5 form of discrimination.

[26]The submission from the claimant does not explain why these parts of her claim should not be dismissed. This was the focus of the Unless Order. Rather the submission from the claimant in response to the Unless Order was a restatement of the allegations of race discrimination in the paper apart to 10 her ET1 with some additional information. I am mindful that the claimant is not legally represented.

[27]In consideration of the overriding objectives of the ET Rules and Rule 39 (previously Rule 38) I find that there has been material compliance with the Unless Order and as such, the race discrimination head of claim as set out in 15 the ET1 and the written submission of 30 June 2024 remain part of the claimant’s case. Amendment

[28]The claimant confirmed that her amendment covered the unfair dismissal claim as set out in the document lodged on 10 October 2024 (pages 73 – 75) 20 as well as the events set out in the further information documents provided on the 13 October (pages 76-78). These documents describe instances of alleged discrimination and the claim for unlawful deduction from wages. I shall deal with each of these heads of claim in turn. Unfair dismissal 25 Nature of the amendment

[29]Mrs Niaz-Dickinson submitted, and it does not appear to be a disputed point, that the claim for unfair dismissal is a new head of claim which did not form part of the original ET1. While the ET1 made reference to a potential claim for constructive dismissal, the claimant remained an employee at the time of 30 raising her claim on 20 May 2024. She was dismissed by the respondent on 14 June 2024. I accept that the nature of the amendment is such that it amounts to a new head of claim, albeit one that could not have formed part of the original claim as the dismissal complained of had not occurred. Relevance of time limits 5 30. Mrs Niaz-Dickinson submitted that the claim for unfair dismissal is out of time as the amendment was made on 10 October 2024. As the claimant was dismissed on 14 June 2024, her last day for raising her claim was 13 September 2024 under Section 111 of the Employment Rights Act 1996. As the claimant already had a live claim before the Tribunal she had knowledge 10 of the processes. She submitted that there was no evidence before the Tribunal that suggested it was not reasonably practicable for the claimant to submit the claim on time, that the time limits for unfair dismissal claims should be strictly adhered to.

[31]The claimant submitted that she only became aware of her ability to amend 15 the claim either on receipt of the respondent’s agenda prepared for the preliminary hearing on 7 October 2024 and/or at that preliminary hearing on 7 October 2024. She made her application to amend on 10 October 2024.

[32]Time limits are a factor which must be considered in an amendment application and I note the submission of the respondent that it was reasonably 20 practicable to present the unfair dismissal claim by 13 September 2024. I did not hear submissions on Section 111(2)(b) on whether the claim was presented in some further period as the tribunal considers reasonable, noting of course that subsection 2(b) applies where a tribunal finds it was not reasonably practicable for the claim to be presented before the end of the 25 three month period. Given the wholescale objection to the amendment by the respondent, I take it that it is also the respondent’s position that the claim was not presented in some further reasonable period. Time limits, while a factor, should not be determinative. Rather they are one element to consider in the round. 30 Timing and manner of the application

[33]The application was made in writing three days after a preliminary hearing where the claimant submitted that she became aware she required to apply to amend her claim to include the ground of unfair dismissal. The document 5 at pages 73-35 was then lodged on 10 October 2024. It sets out the narrative of her dismissal and the reasons why she disputes the reason for dismissal. Balance of prejudice

[34]Mrs Niaz-Dickinson submitted that the respondent will be prejudiced if the unfair dismissal claim is accepted as they will be put to the cost and effort of 10 defending same. Further the delay of one month from the last date for lodging a claim will impact the quality of witness evidence available. Analogous to this, if the claim is not accepted, the claimant will not be able to enforce her rights on this matter.

[35]Having balanced the relevant factors as set out above as against the interests 15 of justice and hardship to the parties, as well as the overriding objective I have decided to grant the application to amend the claim to include the claim for unfair dismissal having had regard to the core exercise of balancing injustice and hardship to the parties as per Vaughan v Modality Partnership.

[36]The fact that this is a new head of claim is entirely clear as the dismissal had 20 not occurred when the ET1 was submitted in May 2024. The claimant could not have raised an unfair dismissal claim at that time. The amendment application was made by the claimant following the preliminary hearing wherein she indicated that she intended to include this in her claim. That hearing was on 7 October 2024 and the amendment received on 10 October 25 2024. This is in writing and sets out the detail and basis of the unfair dismissal claim. The last date for lodging this claim would ordinarily be 13 September 2024. I note the concerns of the respondent that they will now be required to defend this claim if it is accepted and that the delay in raising this claim will impact on witnesses’ evidence and recall. Given the ongoing tribunal claim 30 between the parties, it is not surprising that the claimant sought to add this head of claim. This was surely anticipated by the respondent and/or their representatives. Work could have been done by the respondent’s internal HR department to preserve the memories of the relevant witnesses at the time of the dismissal if this was a concern. The delay which the respondent states will impact them is three days shy of one calendar month. I do not accept the 5 submission that the balance of prejudice falls heavily on the respondent. Any prejudice is minimal. Given the requirements of Early Conciliation, it is not unusual for a respondent to receive a notice of claim four months after a dismissal takes effect. I find that in balancing the injustice and hardship between the parties, it falls in favour of the claimant. She is not legally 10 qualified and is represented by a lay representative. If this amendment is rejected, she will not have the opportunity to enforce her employment rights in respect of her dismissal. This outweighs the potential injustice and prejudice to the respondent that the short delay in amending her claim may cause. The claimant’s application to amend is accepted. 15 Arrears of Pay/Wages claim Nature of the amendment

[37]It is the respondent’s position and Mrs Niaz-Dickinson’s submission that the further information relating to the unlawful deduction of wages claim is a new claim. The claimant did not address this point in her submissions. I do not 20 accept the respondent’s position. It is correct that the specifics relating to the wages claim as provided on 13 October 2024 are not contained in the ET1. The ET1 provides no specificity on the claim save for the phrase “they stopped paying me” when referring to an absence for Long Covid and a complaint that “they were taking my bonus away”. The head of claim is 25 selected by ticking the box “arrears of pay”. The lack of detail of this claim was noted by the respondent in their ET3 response and in their agenda document for the preliminary hearing and particularisation of this claim was requested by the respondents. I do not find that the amendment amounts to a new claim, but instead is the claimant providing the detail sought by the 30 respondent. Relevance of time limits

[38]Mrs Niaz-Dickinson submitted that this claim has been raised out of time. As set out above, the ET1 had limited information on this claim and this was provided on 13 October 2024. 5 Timing and manner of amendment

[39]The proposed amendment is in writing, setting out detail of the claimant’s wages claim. It was made on 13 October 2024 following a preliminary hearing on 7 October 2024 where the claimant was directed to consider the claim form and draft list of issues drafted by the respondent and to “provide a 10 document [to the Tribunal] setting out the specification of the claim”. Balance of prejudice

[40]I note the respondent’s submission that if the amendment is accepted, the respondent will be prejudiced both in terms of providing a response and the potential impact on the witnesses’ recall of evidence. If the amendment is 15 rejected, the claimant will not be entitled to raise this claim.

[41]I find that the information in respect of the wages claim is not a new head of claim. The events referred to within the paperwork lodged on 13 October 2024 is the specification of the arrears of pay claim as established in the ET1. To refuse to allow this information to form part of the pleadings would in fact 20 create a greater prejudice for the respondent as they would not have adequate notice of this claim. As such the balance of prejudice and hardship falls in favour of allowing the amendment. Further heads of discrimination Nature of the amendment 25 42. Mrs Niaz-Dickinson also submitted that in the further information provided by the claimant on 13 October 2024, she raised three new discrimination claims. These are as follows:(i) On 23 May 2022 Karl Forsdyke said to the Claimant “Helen, at your age, why do you want to want to work with Direct Line, shouldn’t you be sitting at home with your knitting?”

(ii) The race discrimination claim dated May to June 2022 concerning 5 Adam Glossop making fun of the Claimant’s Scottish accent and the Claimant feeling as though she was treated differently by the Trainers and ignored when she requested help.

(iii) Gemma Jones having a photo on her email and MS Teams of her wedding day which showed her wearing a bridal outside and the 10 woman she married was dressed in a man’s suit.

[43]She submitted that these are not minor amendments and are new claims. The claimant did not address this point in submissions, save as to say that she suffered discrimination at the hands of the respondent.

[44]In respect of the age discrimination allegation set out above, while this specific 15 allegation was not included in the ET1 or paper apart, the paper apart states that there were “constant references to age & suitability for working in a young environment. This happened on a training course in 2022 over six weeks. I was the oldest person on the course and this was commented on by various Trainers and other students on course.” This specific allegation is therefore 20 the specification of her claim sought by the respondent and the Tribunal in a similar vein to the arrears of pay claim above.

[45]The race allegation referencing a lack of support is also rooted in the paper apart to the ET1 albeit in a less clear and detailed fashion. The allegation of a manager mocking her accent is not specified in the ET1 or paper apart, 25 albeit section 8.2 of the ET1 states that she has been “constantly…picked on and not treated the same as other members of the team.” I consider that given the direction of the Tribunal at the preliminary hearing, these allegations have been set out at this time in an effort to comply with the direction to specify her claim.

[46]The allegation surrounding the photo on Gemma Jones’ MS Teams account is not specified in the ET1 or paper apart. There are references to Mrs Jones informing the claimant about her marital status, specifically that she is married to a woman and comments made to her by Mrs Jones in meetings conducted 5 over MS Teams. Relevance of time limits

[47]Mrs Niaz-Dickinson submitted that the three allegations are raised out of time as they did not occur in the three months prior to the 13 October 2024. The claimant did not have any submissions on this point, save as to say that she 10 suffered discrimination. Nature and manner of amendment

[48]The amendments were produced in writing on 13 October 2024 following a direction from the Tribunal at the preliminary hearing on 7 October 2024 to specify her claim. They are detailed in that they refer to specific dates, identify 15 persons and what was said or done by them which the claimant believes amounts to discrimination. Balance of prejudice

[49]As with the other amendments, Mrs Niaz-Dickinson submitted that the balance of prejudice weighed heavily on the respondent as they will be 20 required to defend these claims, some of which took place some time ago and that this may impact on the quality of the witness evidence available. If the amendments are not accepted, the claimant will not have an opportunity to enforce her rights.

[50]Having considered the submissions of the parties, the amendments and 25 original pleadings as well as the case law, I find that the allegations of age and race discrimination are not new claims but instead are specification of the claims already set out in the ET1. I find the same in respect of the allegation of sexual orientation. This information was provided by the claimant in response to a direction by the Tribunal to consider the claim form and the draft 30 list of issues and specify the detail of the claims she is making against the respondent. This is a fairly standard case management request. I note the respondent in their ET3 set out that the claimant’s case is lacking in detail. While I can appreciate that a respondent will be cautious to ensure that any additional detail forthcoming does not result in new claims from the claimant, 5 there needs to be some understanding that when asking for specifics, a claimant will then make clear their claim. That is what has occurred here. The three allegations set out above all have a root in the ET1 and paper apart. The allegation of sexual orientation discrimination is the most distant of the three, but in the context of the Tribunal direction and the information already 10 contained in the ET1 and paper apart, I find that this is not a new claim but instead is further information. Time bar

[51]While I acknowledge that the respondent’s application of 25 June 2024 indicates that it is a strike out application, referring both to Section 123 of the 15 EA and Rule 38 (previously Rule 37) of the ET Rules, I am taking the time bar point separately. This is because time bar is not a stated ground for strike out in Rule 38. There is a separate legislative test in Section 123 for time bar and separate case law which requires to be considered. The test for whether a claim has been raised in time may inform the reasonable prospects of 20 success as per Rule 38(1)(a) but is in and of itself a ground for dismissal of a claim for lack of jurisdiction. I will therefore consider the merits of the time bar application firstly and then if relevant, strike out.

[52]Mrs Niaz-Dickinson submitted that the various heads of discrimination were not lodged in time in accordance with Section 123. She submitted that the last 25 act of race discrimination was September 2023; the last act of sexual orientation discrimination was October 2023; and the acts of age discrimination all occurred prior to 3 January 2024. Early Conciliation was entered into on 11 April 2024 and an ET1 submitted on 20 May 2024.

[53]The ET1 however is not as clear as this in terms of the timeframe of the claim. 30 In the box 8.2 the claimant states “Please find attached document in support of my claim. It details just some of the incidents that occurred at work since 2022 – present day. In November 2023 I started a formal Grievance procedure, as my working conditions were getting unbearable. Constantly picked on and not treated the same as other members of the team. They were taking my bonus away and I felt that it was leading to Constructive dismissal.” 5 54. This grievance is then referred to in the paper apart under the heading Sexual Discrimination where the claimant states “Complained about this in my Grievance procedure. It was ignored.”

[55]The respondent’s ET3 confirms that the claimant raised a grievance on 12 November 2023 and the outcome was given on 27 February 2024. This was 10 appealed and the appeal outcome provided on 23 April 2024.

[56]In her submissions the claimant spoke broadly about the discrimination that occurred and stated that she was advised by Acas to lodge a grievance. It was her submission that the respondent delayed in dealing with her grievance and that had they dealt with the grievance properly at the time “it wouldn’t 15 have come to this”.

[57]At this stage of proceedings, evidence has not been heard about the acts of discrimination or the substance of the grievance which may be relevant to the acts of discrimination. Prior to hearing submissions, I alerted Mrs NiazDickinson to the fact that on the face of it, the claimant’s case is that there 20 was one or more continuing acts of discrimination, particularly given what is outlined at Section 8.2 of her ET1 where she refers to a timeline of “2022- present day”. Mrs Niaz-Dickinson stated the respondent’s position is that there is no continuing act of discrimination. She submitted that it might be unusual to dismiss a claim for time bar in the absence of evidence but that 25 the onus is on the claimant to show that it is just and equitable to extend the time for the claim to be accepted.

[58]It is acknowledged and accepted that the onus in respect of Section 123 lies with the claimant. In the first instance however there needs to be an understanding of the time frames concerned so that the Tribunal can assess 30 whether the claim was lodged in time or not. It would not be usual to hear evidence from the claimant about the acts of discrimination at a preliminary stage unless there is a specific direction to do so. Indeed, the respondent did not have any witnesses attending to counter or challenge any potential evidence from the claimant about the acts of discrimination.

[59]The directions from the Court of Session in Kaur is quite clear that in the 5 absence of evidence, the Tribunal is required to decide whether there is a prima facie case that the acts complained of are capable of a continuing act of discrimination. It was for this reason I asked that parties at the outset if they wished to deal with time bar at this hearing when no evidence would be heard as any decision would bind a future Tribunal. The parties both agreed to 10 proceed.

[60]I find that the dates put forward by the respondent as the latest acts of alleged race, sexual orientation and age discrimination are taken from the claimant’s paper apart and does not appear to consider the ET1 as a whole, in particular Section 8.2 (page 8 of Bundle). The relevant portion of Section 8.2 is outlined 15 at paragraph 53 above. This gives a timeline up to “the present day” and refers to raising a grievance due to “unbearable working conditions” which includes being picked on and being subjected to different treatment compared to her colleagues. An initial grievance outcome was given on 27 February 2024. The ET1 was lodged on 20 May 2024. 20 61. The paper apart to the ET1 sets out further specific events of alleged ill treatment under the headings age discrimination, race discrimination and sexual discrimination (presumed sexual orientation discrimination given the contents) and these appear to provide some specificity to the broader allegations of mistreatment, differential treatment, and “unbearable” working 25 conditions which were the subject of the grievance raised in November 2023 as outlined in Section 8.2.

[62]In the absence of evidence, I only have the papers to consider. Taking the ET1 form together with the paper apart I find that the claimant has set out a prima facie case of acts capable of amounting to a continuing act or acts of 30 discrimination. These were ongoing at the time the claim was lodged or occurred within three months before the claim was lodged on 20 May 2024. This is primarily seen in section 8.2 of the ET1 form which narrates a broad picture of ongoing mistreatment continuing to the point where the claim was raised. As such I find that the discrimination claim is lodged in time as per Section 123 of the Equality Act 2010 and the Tribunal has jurisdiction to hear 5 these claims. Strike out

[63]In respect of the strike out application, this was a general application that the discrimination claims had no reasonable prospects of success and so should be struck out. I find that the first limb of the test, establishing a ground under 10 Rule 38(1) has not been met. This application was made on the argument that these claims were raised out of time. That question has been resolved above and the allegations found to be in time. As the first limb of the test has not been met, I am not required to consider the second limb of the strike out test. The application to strike out the discrimination heads of claim as a whole 15 is therefore denied.

[64]As well as the general application, there were two further applications in respect of specific allegations of discrimination in the paper apart. Mrs NiazDickinson submitted that allegation six under the heading age discrimination in the paper apart to the claimant’s ET1(page 15 of Bundle) is not causally 20 connected in any way to the claimant’s age, taking her case at it’s highest. As such, she submitted that these allegations should be struck out for having no reasonable prospects of success.

[65]The claimant made limited submissions on these points save as to say that there was discrimination by the respondent against her and in respect of this 25 specific allegation of age discrimination, “it is all in the detail”.

[66]I find that the first limb of the test, establishing the ground under Rule 37(1)(a) that the claim has no reasonable prospect of success, has been met. This section of the claimant’s claim does not refer to her age at any point. From the plain reading of this allegation, is it not clear why the claimant asserts that 30 her age was a factor in the respondent’s actions. Considering this allegation in the context of the claim as a whole, including the surrounding allegations of age discrimination, does not shed further light on the link between the claimant’s age and the events referred to.

[67]Having found that the first limb of the test is met, I am required to consider the second limb of the test: if it is appropriate to strike out this part of the 5 claim, considering the overriding objective of the ET Rules, the fact that the claimant is a litigant in person and not legally represented and the proportionality of strike out. Strike out is a draconian measure. This is particularly the case where allegations are fact sensitive and evidence is not being heard. 10 68. Considering the guidance in Cox v Adecco, a litigant in person is not required to plead their case in a manner expected of a lawyer or advocat/barrister. They should however seek to explain their claims clearly.

[69]Having considered the submissions of the parties, the pleadings as a whole and the case law, I find that it is not proportionate to strike out this part of the 15 claimant’s case. A more proportionate response is to seek further clarification from the claimant as to the link between the events referred to and her age.

[70]The respondent’s application to strike out this allegation of age discrimination is denied.

[71]The respondent also sought to strike out the specific allegation that the 20 requirement to attend the office two days per week amounts to race discrimination, on the basis that there is no causal link between the requirement and the claimant’s race. I find that the first limb of the test in Rule 38(1) is established that there is no reasonable prospect of success of this allegation. It is not clear on the face of it why the claimant believes this 25 decision is linked to her race.

[72]As with the age discrimination allegations above, I am required to consider the overriding objective, the fact that the claimant is not legally represented and the proportionality of strike out given its draconian nature when exercising my discretion in the second limb of the test. I am also reminded of the 30 guidance in Cox v Adecco which I have set out above.

[73]I have decided not to strike out this allegation as a more proportionate measure is to seek additional information from the claimant as why she believes the respondent’s decision is an act of race discrimination. This is particularly the case where evidence has not been heard and facts are in 5 dispute.

[74]The respondent’s application for strike out this allegation of race discrimination is denied. Deposit

[75]Mrs Niaz-Dickinson submitted that if her application to strike out is 10 unsuccessful, deposit orders should be made. There was limited submission by Mrs Niaz-Dickinson on this point in both her skeleton and oral submissions.

[76]The application for a deposit order in respect of the discrimination claims as a whole is that there little reasonable prospect of success of these claims as they are raised out of time. As I have found in the time bar section that there 15 is a prima facie case that there is or are continuing acts of discrimination. As such, I do not find there is little reasonable prospect of success and so no basis to consider a deposit order.

[77]In respect of the specific allegations of age and race discrimination, I found when considering strike out that there was no reasonable prospects of 20 success as the causal link between the acts of discrimination and the relevant protected characteristics were unclear.

[78]It therefore follows that these allegations have little reasonable prospect of success in their current form. Rule 40 allows for Tribunal discretion, stating that if a Tribunal considers an allegation has little prospect of success, it may 25 make a deposit order.

[79]The purpose of deposit orders it to allow for targeted case management, by identifying weak elements of a claim. It is not a punitive measure, particularly where pleadings are lacking. I am mindful of the decision in Tree v South East Coastal Ambulance NHS Foundation Trust EAT 0043/17 where 30 Justice Eady stated that deposit orders are not a substitute for case management, particularly where facts or issues require to be clarified. I also considered Cox v Adecco which provides that the best approach with an unclear claim is not necessarily to put the claimant on the spot to seek this clarification under the stress of a hearing. This if course needs to be balanced 5 against seeking more and more written detail from a claimant.

[80]I have stated above that rather than striking out these two allegations, a proportionate route is to seek clarification from the claimant as to the link between the events alleged and her age. Having been ordered to provide additional information, which will inform the prospects of success of these 10 allegations, I am not willing to make deposit orders while this information is outstanding. This is not a bar to the respondent making a further application once this information is to hand if they feel that the causal link between the alleged discriminatory acts and the protected characteristics is lacking to the degree that there is little reasonable prospect of success. 15 81. The respondent’s application for deposit orders is denied. 20 25 Date sent to parties 20 January 2025 Employment Judge E Mannion EMPLOYMENT TRIBUNALS (SCOTLAND) Case No: 4105158/2024 5 Held in Chambers in Glasgow on 24 March 2025 Employment Judge E Mannion Mrs H Connor Shea Claimant 10 DL Insurance Services Limited Respondent 15 20

REASONS

[1]On 20 January 2025 the Tribunal granted the claimant’s application to amend her claim to include unfair dismissal as a head of claim. 30

[2]The respondent made an application for reconsideration of this decision on 30 January 2025. The application set out the legal submissions the respondent was relying upon. It also confirmed that the respondent did not seek a hearing and that the application could be considered on the papers.

[3]The claimant was given an opportunity to respond to the reconsideration application and give a view on whether a hearing was necessary but failed to do so.

[4]A hearing in chambers was scheduled for 24 March 2025, with both parties advised of this date and given a final opportunity to make further written submissions by 21 March 2025. No further submissions were received from the respondent or the claimant.

Relevant Law

[5]The ability to reconsider a judgment is provided for in Rule 68 of the Employment Tribunal Procedure Rules 2024 (the ET Rules). A tribunal can only reconsider a judgment where it is in the interests of justice to do so. When reconsidering a judgment, the Tribunal can confirm, vary or revoke a previous judgment.

[6]The ability to reconsider or review judgments of the Tribunal has been provided for in previous iterations of the ET Rules. The current Rule 68 replicates the previous Rule 70 allowing a reconsideration where it is necessary in the interests of justice. Caselaw decided under previous iterations of the ET Rules remain relevant to an application made under current iteration of the ET Rules.

[7]When considering a reconsideration application, it is necessary to take into account the overriding objectives of the ET Rules as set out in Rule 3.

[8]The Employment Appeal Tribunal (EAT) President, Justice Simler gave helpful guidance on reconsideration applications in Liddington v 2Gether NHS Foundation Trust [2016]

UKEAT/0002/16/DA

. At paragraphs 34 and 35 she stated as follows: “…a request for reconsideration is not an opportunity for a party to seek to re-litigate matters that have already been litigated, or to reargue matters in a different way or adopting points previously omitted. There is an underlying public policy principle in all judicial proceedings that there should be finality in litigation, and reconsideration applications are a limited exception to that rule. 30 They are not a means by which to have a second bite at the cherry, nor are they intended to provide parties with the opportunity of a rehearing at which the same evidence and the same arguments can be rehearsed but with different emphasis or additional evidence that was previously available being tendered. Tribunals have a wide discretion whether or not to order reconsideration, and the opportunity for appellate intervention in relation to a refusal to order reconsideration is accordingly limited. 35 Where, as here, a matter has been fully ventilated and properly argued, and in the absence of any identifiable administrative error or event occurring after the hearing that requires a reconsideration in the interests of justice, any asserted error of law is to be corrected on appeal and not through the back door by way of a reconsideration application.”

[9]The case of Outasight VB v Brown 2015 ICR D11 saw the EAT confirm that an exercise of discretion was involved in reconsideration of a judgment. The EAT said that discretion required to be exercised judicially. That was confirmed as meaning “having regard not only to the interests of the party seeking reconsideration, but also to the interests of the other party to the litigation and to the public interest requirement that there should, so far as possible, be finality of litigation.” 20

[10]The respondent’s reconsideration application stated that it is made in the interests of justice. The crux of the application is set out in paragraph 3.5 of the application which states as follows: “It is respectfully submitted that EJ Mannion has erred in failing to apply the reasonably practicable test when considering the Claimant’s application to add an unfair dismissal claim and, as such, has not properly considered time limits as a factor. As the Tribunal must consider whether the complaint is out of time when determining an amendment application, it was not open to the Tribunal to decide to allow the amendment in the absence of this determination.” Paragraph 3.7 also states: The Respondent submits that the Tribunal has erred in failing to properly apply the reasonably practicable test. ” Paragraph 3.9 states: “the Tribunal has failed to properly consider time limits when determining the Claimant’s application to amend her claim to include a claim of unfair dismissal and has therefore not considered all relevant factors before deciding whether the amendment is allowed.” 11. The essence of the application is that there has been an error of law on the basis that the Tribunal did not apply the relevant legal test, that it was not open to the Tribunal to grant the amendment without first determining if the complaint within the amendment was out of time, and that it has not considered the relevant factors when granting the amendment. While referring to the interests of justice, the main thrust of the application is that the decision is legally incorrect having regard to Selkent and Presidential Guidance for the England and Wales Tribunals.

[12]The respondent is represented by a well known law firm with a specialised employment law department. This firm of solicitors set out the initial objection to the amendment application in an email of the 28 October 2025. This set out in detail the basis for the objection. At the hearing to consider the amendment application and other case management applications, the respondent was represented by Counsel who provided a skeleton argument in advance of the hearing and made further oral submissions during the course of the hearing. The reconsideration application was submitted by the respondent’s solicitors although it is not clear if Counsel also assisted with the drafting.

[13]I have considered the reconsideration application very carefully but I conclude that the appropriate grounds – the interests of justice – is not the basis for the application. Rather the application is concerned with an error of law in how the amendment was granted.

[14]As above, the respondent objected to the amendment in writing, provided skeleton arguments at a hearing which were supplemented by oral submissions. They are represented by specialised solicitors and had Counsel advocate on their behalf at the amendment hearing. There is no suggestion in the reconsideration application that the respondent did not have the opportunity to properly argue their position in objection to the claimant’s proposed amendment. I consider that the question of whether the amendment should be allowed or rejected was fully ventilated and properly argued by specialist lawyers and barristers on behalf of the respondent.

[15]The reconsideration application does not identify an administrative error or a further event which requires to be considered.

[16]As such, in following the guidance from Simler P set out above, where the question of whether the amendment be granted or refused was fully ventilated, the appropriate forum for correcting an error of law is not reconsideration but rather appeal. I must therefore refuse the reconsideration 10 application.

[17]If I am incorrect in this and the respondent is in fact setting out an interests of justice ground for reconsideration, rather than an error of law, the guidance from Simler P and Eady J (as she was then) above requires to be considered. Reconsideration is not a second bite of the cherry and should not allow a party to re-litigate their arguments.

[18]The reconsideration application refers to the Selkent case relevant to amendment application. I was referred to the Selkent principles by the respondent at the hearing to consider the amendment. I was not referred to other caselaw decided since Selkent, either at the hearing or in this reconsideration application.

[19]The reconsideration application also makes reference to prejudice to the respondent as a result of the amendment. These prejudice arguments mirror the submissions made by the respondent at the amendment hearing.

[20]I consider that the reconsideration application is simply re-litigating the arguments set out by the respondent in their initial objection to the proposed amendments and at the hearing to consider these in the hope of a different outcome. I must have regard to the principle of the finality of litigation which is an important public interest requirement. In balancing the interests of justice, I find, having considered the application, the relevant caselaw and the 30 overriding objection of the ET Rules, the balance falls against reconsidering the original amendment application. The reconsideration application is simply asking the Tribunal, based on the same arguments and information, to decide the matter differently. For these reasons, the reconsideration is refused. 5 10 Date sent to parties 31 March 2025 15