Case No 4106063/2015Venue GlasgowHearing 28 October 2019
Between
Ms LM MaloneClaimantScottish MinistersRespondent
Before
Employment Judge R SorrellDate 29 January 2020
JUDGMENT
The claim, having been withdrawn by the claimant, is dismissed under Rule 52 of the Rules contained in Schedule 1 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013. 20 15 10 35 30 25 is refused. The Judgment of the Tribunal is that the claimant’s application to amend her claim Scottish Ministers Ms L M Malone E.T. Z4 (WR) 2 1 Preliminary Hearing having taken place on 5 August 2019. At that Hearing There has been considerable procedural history in the case, the most recent The claimant lodged a claim of unfair dismissal on 23 March 2015. JUDGMENT OF THE EMPLOYMENT EMPLOYMENT TRIBUNALS Held in Glasgow on 28 October 2019
REASONS
Solicitor Ms L Meldrum - Represented by: Respondent In Person Claimant TRIBUNAL f- W llio 6 5 4 3 Metropolis [2017] WL05639353 [2017]. accordance bar which would be considered as part of the evidence at the Final hearing in in the event I allowed the claimant’s application, it would be subject to time I informed parties that submissions would be heard from both parties and that proceedings could be taken if that would assist. claimant was visibly distressed and I therefore advised her that breaks during explained to her. It was clear from the onset of these proceedings As the claimant to determine whether it should be allowed. make oral submissions in respect to this application in order for the Tribunal to the application. This Hearing has therefore been scheduled for parties to claim. On 1 1 September 201 9 the respondent lodged their written objections On 3 September 2019 the claimant lodged a written application to amend her the amendment. date of submission of such application to advise whether or not they object to a duty to provide. Further, that the respondent shall have 14 days from the alleged reasonable adjustments which it is alleged the respondent was under her particular disability at the particular disadvantage criterion or practice which is alleged to put either the claimant or those sharing incidents on which the claimant seeks to rely, the nature of any provision Equality Act 2010 on which the claimant seeks to rely, full details including details of the alleged disability, a note of those sections application of disability discrimination. lodge her application to amend the claim with the Tribunal to include a claim One of these Orders was that within 28 days the claimant shall, if so advised, the claim to be progressed. Judge McFatridge made various Orders dated 6 August 2019 so as to allow should clearly set out the nature of the claims being with the authority of Galilee v Commissioner is unrepresented, Judge McFatridge further stated that any such the procedure for this Hearing and details of any of Police of the that the of the made of all was 20 15 10 30 25 8 7 as follows:- The claimant’s application to amend her claim dated 3 September 201 9 stated authorities. The respondent liaising all of which placed an inordinate demand upon me at which point of staffing shortages, operating systems, volume of work and volume of Forward to 201 1 and the FGU when I complained shortly on return there January - March 201 1 with both the expectation of and experience in. when I was appointed doubts about the staffing and work load of the FGU which relief continued in November 2010. Initially I was relieved at the move though had some appointment to the Forensic Gateway Unit (FGU) another specialist unit posts within COPFS. Realising this, I attempted to escape from the Unit by applying for other serious impact upon my personal life and functioning within my family. experiences the first time in 19 years of exemplary feelings of floundering given the specialist area of law all occasioned for to lack of training, lack of supervision, lack of support and my resultant where I was vocal to team members of my unhappiness colleague’s continued behaviour to me upon my arrival within the Unit; Forward to 2010, in the H&S Unit, where I complained subsequent dealings with me. They did not. succumbed to stress at work and should have borne this in mind in their tendered in my absence from work and was supported by a medical certificate In November 2001 , 1 had a prior incident of stress at work which resulted Act 2010. In making this request, I rely on the following: discrimination “I wish to amend my claim for unfair dismissal to include a disability to CORPS. Page 3 were commonly shared within the Unit. lodged a joint bundle of productions claim as I believe I had a disability in terms of the Equality Acting Principal I was successful They were alerted at that stage that I had service and performance. Depute in a Solemn Unit in in my second attempt and a bundle All of this had a in the Unit due about a team My by of to amend her claim as follows On 1 1 September 2019 the respondent replied to the claimant’s application (Pages 75 to 76 of the joint bundle of productions). The Respondent’s The Respondent objects to the claimant’s application to amend her claim. “We refer to the above matter in which we represent the Respondent. ' I am grateful for consideration of my proposed amendment.” as a disability because it lasted longer than 12 months’. Occupational Physician, that I had ‘an impairment likely to be considered As an aside, COPFS were told in July 2013 by Dr K Wladyslawska, disability discrimination. realised an amendment could and should be made by me to include June 2019, following advice from Strathclyde University Law Clinic, that I my application for unfair dismissal, without legal advice. which continues to this day and which was operating when I submitted me from 2010 in the H&S Unit had made me suffer a mental impairment By the time I left my employment in February 201 3, their conduct towards COPFS ignored this. other employees. demands upon her of which suffering they were alerted to by me and in the work place because of her employer’s excessive and continued without considering that it was likely a symptom of an employee suffering simultaneous. some of which was upheld) which complaints and odd behaviour investigate my complaints COPFS chose to ignore my odd behaviour, find a solution to them. path occasioned by stress, should have listened to my complaints normal parameters. my unrecognisable behaviour to me started. This behaviour was out with Instead COPFS chose to fully investigate the “theft of time” objection is made on four principal grounds and it will I was ill for the reasons alluded to. COPFS knew this. COPFS should have realised that I was on another They did not. COPFS offered me no support, (which latterly formed part of my grievance COPFS did nothing It wasn’t until was and to March 201 5 (subject to any extension of time following mandatory ACAS to present a claim under s. 123(1) (a) of the Equality Act 2010 was 17 The Claimant’s employment ended on 1 8 December 201 4. The time limit The new cause is out of time and when she lodged her claim in 2015. have been within the Claimant’s knowledge at the time of her dismissal amendments, Furthermore, claim, and would require additional application Employment 2019 go beyond the facts outlined in the ET1 form received The averments contained within the Claimant’s email dated 3 September which the Claimant intends to make. not been notified of the specification of the disability discrimination claims upon which the claimant is seeking to rely. Further, the Respondent has be. The Respondent would need clarity of the exact mental impairment Act 2010 however does not specify what she considers this disability to outlined that she considers that she is disabled in terms of the Equality Claimant intends to include in an amended claim. It is unclear what legislative The nature of the amendment Selkent) v Moore UKEAT/1 51/96: rely on the principles set out in Selkent Bus Co Ltd (t/a Stagecoach iv. iii. ii. i. The fact that the claimant can still pursue her original claim. The timing of the application; and The fact that the new cause is out of time; The nature of the amendment; to amend is more than a mere re-labelling Tribunal on 23 March 2015. in so far as relevant to the dismissal proceedings, the Respondent’s provisions position facts to be added to the claim. of the Equality Act 2010 the is that these Accordingly, The Claimant of the existing the Claimant’s new factual by the would has i 30 25 15 W that the Claimant dismissal without the benefit of legal advice. the delay other than to say that she submitted her claim for unfair The Claimant’s application does not sufficiently outline the reasons for discrimination. 2019 whether she intended Meiklejohn requested that the Claimant confirmed by no later than 1 5 May Additionally, in correspondence Claimant first referred to her intention to make the application to amend. 4 years since the presentation The delay in making the application to amend is significant - being over Hearing that any application to amend should be made without delay. pointed out in paragraphs 10 to 12 of the Note following the Preliminary include a claim of disability discrimination. 1 April 2019 that she was considering The Claimant discussed at the Preliminary Hearing which took place on the Claimant’s amendment application was made on 3 September 2019. The Claimant submitted the ET1 on 23 March 2015. As outlined above, The timing of the application would not be just and equitable to allow the amendment. the decision to dismiss or otherwise. or that the Respondent had unlawfully discriminated against her in taking at the time of presenting her claim that her alleged disability was relevant Housing Corporation [1998] EWCA Civ 866. The Claimant did not identify claim is one of unfair dismissal it has been discussed at two Preliminary Hearings that the claimant’s could not, without addition or amendment, support the new claim. Indeed, of time. such an application. made on 3 September 2019, more than 4 years after the time limit for Early Conciliation). It is the respondent’s The Claimant failed to do so. was a solicitor The Claimant’s application to amend her claim was A disability discrimination claim is therefore well out to amend her claim to include position that the facts as originally dated 1 May 2019, Employment of the claim and 5 months since the only. during The Respondent’s position is that it an amendment Reference is made to Bryant v Employment Judge Doherty her employment It should be borne in mind to her claim to with the disability Judge pled 30 25 20 is io in relation to her alleged personal injury by the Respondents dismissal. Additionally, the Claimant has raised a Court of Session action to amend be refused, the Claimant could continue with her claim of unfair on trade union grounds). dismissal claim (he had sought to amend his claim to add unfair dismissal refused as he was still entitled to pursue his original “ordinary” unfair the employee would not suffer significant hardship if leave to amend were Reference is made to Selkent where the EAT considered it relevant that Claimant can still pursue the original claim should be refused. the application Respondent’s position is that the Claimant has delayed too long in making amendment the Claimant in the Note issued after the Preliminary Hearing that an Clinic regarding her claim on 22 March 2019. Judge Doherty pointed out March 2019 the Claimant stated that she had spoken to Strathclyde Law to amend her claim to that effect. at which she advised that Strathclyde Law Clinic had advised her to seek include disability discrimination at the Preliminary Hearing on 1 April 2019 discrimination". amendment following advice from Strathclyde University Law Clinic, that I realised an In her application to amend the Claimant states: "It wasn’t until June 201 9, chose not to do so. claim for disability discrimination at the time of presenting the claim and that the Claimant had knowledge of all of the material facts to plead a intention to claim unfair dismissal in ET1. The Respondent’s position is Claimant’s lack of representation position in so far as it related to her employment and its termination. she would have been familiar with methods of researching Respondent and, whilst her area of practice was not employment application could and should be made by me to include disability for amendment The Claimant first referred to a potential amendment In this case, should the Claimant’s application should in September be submitted did not prevent her from stating her In an email to the Tribunal dated 26 2019. without The application delay. the legal and has The The law, to J i 30 25 20 15 10 1 1 10 Oral Submissions mental illness. hardship to the respondent as they are fully represented and do not have a instruct a lawyer in these proceedings. If she succeeds in her claim in the Court of Session, then she will be able to proceedings. because of her illness which has caused her to have a phobia regarding these cause of her illness. personal injury claim ongoing in the Court of Session which will establish the (Pages 81 to 100 of the joint bundle of productions). Her illness is real and can be confirmed by the psychiatric report from Dr Tilak. At the Hearing the claimant made oral submissions as follows:- to 79 of the joint bundle of productions). Claimant’s application to amend the claim should be refused.” (Pages 77 For the reasons outlined above, it is the Respondent’s position that the the manner of the application. should crucially examine the applicability of time limits and the timing and it, taking into account matters such as the nature of the amendment, of allowing the amendment against the injustice and hardship of refusing amendment being tabled and should balance the injustice and hardship the Tribunal must take into account all of the circumstances whether to grant the Claimant’s application to amend is multi-factorial It is submitted that the test for this Employment Tribunal in deciding claim are likely to have faded considerably. time, the memory of potential witnesses for a disability discrimination likely to incur additional costs as a result. Further, given the passage of additional witnesses. require additional time to investigate, but it may also be necessary to call being made, the Respondent would suffer hardship as, not only may it available recourse in that forum. The Tribunal is also aware of her attempt to instruct a solicitor, li Paged She should not be denied a remedy from this Tribunal If the amendment Due to the nature of the contentions This amendment will not cause any is allowed the Respondent She currently has a leading to and - is i 1 4 13 12 and going to the cinema. cope. disrupted. with her children. on her work. Her capabilities were no other staff to do the job. She stopped going out and became focused been previously. increased in 201 0. She became tearful going to work which she had never from Strathclyde Law Clinic. She only found out about the Equality Act 2010 when she sought assistance for greater resources. coping and that she was concerned about her and her workload and the need Head of the Procurator Fiscal Service, intimating that the claimant was not April 2012 an email was sent by a senior Procurator Fiscal to Mr J Dunne, which no point was she asked why she was behaving in the way she was. In of her having an unblemished her behaviour was off but they didn’t question her about it. This was in spite alerted the respondent to some of the difficulties she was having. They knew She was discriminated employment law to represent her. important in order for her to be best equipped to deal with this process it would be made anxious by the very situation she is keen to participate in. Further, that participate in these proceedings is not absolute or ideal as she is likely to be is still suffering symptoms claim. At paragraph 8.9 of Dr Tilak’s report, the Doctor is of the view that she impairments Adjustment which section applies to her circumstances. She has a disability in terms of the Equality Act 201 0 but she does not know She lost interest in everything and stopped going swimming, cycling She went from being very happy in her work to being unable to that Disorder and Recurrent that she relies upon in respect of her disability discrimination Paged she She didn’t want to go to work but carried on because there All she did was think about work. Nothing came of that email. is against by the respondent because from 2011 she Her concentration supported of Adjustment Disorder and that her fitness to Here disability began when her alcohol levels as a mother lessened. attendance record and a Box 2 appraisal, at by someone Depressive at work was affected. Dr Tilak has diagnosed her with Disorder. These are the knowledgeable She became irritable Her sleeping was about 30 25 20 10 17 1 6 15 Time should not be so important she is an individual with an enduring mental claim because it is those facts that have made her ill while she was at work. same facts for the disability discrimination knows she would have to prove the issue of disability, she would rely on the she could lodge a claim for disability discrimination at the time. Although she does not accept that she should be denied a remedy when she didn’t know to secure legal representation and she is suffering from a mental illness. She to her disadvantage. of circumstances If the application is refused she would suffer hardship in that there are a set unlimited resources and none of them are mentally ill. case and the psychiatric reports are already written. respondent In terms of faded memories she does not agree as the witnesses that the amendment were allowed as they have a raft of solicitors representing She does not consider that hardship would be caused to the respondent if her are days when she cannot think about anything and goes to her bed. claimed unfair dismissal due to her lack of knowledge and her illness. know about being able to claim disability discrimination took her statement and she showed them her medical records. remembers attending the Strathclyde Law Clinic on two occasions when they who were criminal lawyers as she was too ill to speak to people. knowledge. application to amend until September 2019 due to her illness and her lack of health at all when she made her unfair dismissal claim. She did not lodge her her existing unfair dismissal claim. She did not think about raising her mental her amendment to her claim to be a new cause of action as it forms part of the time limits to lodge her claim for unfair dismissal. illness so she was mentally impaired. had a mental illness. Her claim was submitted without legal advice during her re-labelling Her application to add a disability discrimination claim was not meant to be a would call would be the same as those in the Court of Session of the existing claim. She isolated herself when she left her job and from all her friends that are being used to the advantage of the respondent and She has not received any financial assistance in order Her claim is for unfair dismissal while she It was ACAS who advised her about claim as for the unfair dismissal She does not consider The respondent at the time she She did not them. There ha$ She 20 19 18 28 days (document 9). amendment application and she was subsequently ordered to do that within August 2019 the claimant her claim but then didn’t (document 8). At the Preliminary (document 7). On 5 May 2019 the claimant indicated that she may amend to make an application to amend her claim which she did not respond to claimant to provide a written response in respect of whether she was intending amend her claim but then didn’t. 6, (pages 57- 58 of the productions) the claimant states that she wished to do this as early as possible. Doherty dated 1 April 2019, it was noted that the claimant if so minded should disability discrimination. University Law Clinic and that she may wish to amend her claim to include On 1 April 201 9 the claimant advised she had sought advice from Strathclyde 2019. represent her. Therefore the claimant had received advice as early as March indicated that she had attended the Law Clinic again to advise they could not (pages 45 to 48) there is an email dated 25 March 2019 where the claimant Strathclyde University Law Clinic at that point. At document 4 of the bundle February joint bundle of productions between parties and the Tribunal dated 12 to 28 relating to it can be deduced. under Section 8.2 of the claim form, nor any reference to it and no facts unfair dismissal box only. The claimant lodged her ET1 claim form on 23 March 2015. She ticked the follows In response illness. make sense other than because of her lack of knowledge and her mental discrimination illness. Why would she choose 2019 show that to the claimant, at the time she lodged her unfair dismissal claim. Page 11 In the Preliminary Hearing Note issued by Judge indicated that she wished to proceed with an There was no claim for disability discrimination In the claimant’s further particulars at document the claimant The e-mails lodged at pages 39 to 44 of the the respondent On 1 May 2019 the Tribunal asked the not to include was seeking made oral submissions a claim assistance Hearing on 5 of disability It doesn’t from as ■j 23 22 21 lodge her claim was March 2015, but the application to amend is made 4 The claimant’s employment ended on 18 December 2014 so the time limit to In respect of the time limits the amendment allowed. necessary. Ltd v Cole UKEAT/0258/17, because the claimant was potentially disabled. As in the authority of Reuters different tests and the respondent would not have expected a claim simply UKEAT/0092/07 authority of Transport and General Workers Union v Safeway Stores Ltd event the claimant is complaining of. This case can be distinguished from the passage of time, it is difficult to expect witnesses to have memories of the evidence would elongate the evidence and also the Hearing. at the time. a re-labelling of her existing claim and would have been within her knowledge beyond the unfair dismissal claim as detailed in her ET1 . So this is more than application to amend her claim of 3 September 2019 sets out facts that are impairment provision the claimant relies upon. The claimant has stated the nature of her In terms of the nature of the amendment, manner of the application. in order to weigh the nature of the amendment, circumstances taking account of all the circumstances. v Royal Bank of Scotland [201 7] EWCA Civ 43 emphasises the importance of Selkent Bus Co Ltd v Moore [1996] ICR 836 EA. The authority of Kuznetsov ICR 650 established the principles that are now welt known in the authority of fairly and justly. The authority of Cocking v Sandhurst (Stationers) Ltd [1974] Tribunal Regulations 2013 also applies to this application to deal with cases being made. The overriding objective under Regulation 2 of the Employment that the claim set out in the ET1 requires to detail the eventual case that is The respondent refers to the case of Chandhok v Tirkey [2015] ICR 527 in Further specification but further clarity would be required. Such an amendment Page 1 2 should be taken into account and a balancing act undertaker] in that it is a wholly new claim with a different jurisdiction, a consideration would be required if the amendment may require witnesses The test is multi-factorial in that all application is a new complaint. of a comparator would also be it is unclear what legislative the time limit and the timely The claimant’s and different Given the written was 26 25 24 application as there will be more costs and delay as further specification would ET 1 claim being lodged. It would be prejudicial to the respondent to allow this express her disability discrimination claim cognitively at the time of the original processing She is able to articulate her views which suggests she has good information that the claimant is not cognitively impaired and her cognitive ability is good. the claimant’s ability to participate in this Tribunal process. This report states The respondent paid for the medical report from Dr Tilak in order to establish conducted by the claimant. already suffered significant delay due to the way in which this case has been the respondent which would come from the public purse. The respondent has the new claims, call additional witnesses and there would be further cost to The respondent however would suffer hardship as it would have to investigate pursue her unfair dismissal claim. She also has her Court of Session action. amendment the claimant would not suffer hardship as she is still entitled to In terms of the hardship caused to either party in refusing or allowing this She had delayed too long and her application should be refused. has also instituted legal action in the Court of Session and is represented. she could have raised disability discrimination at the same time. The claimant lack of representation should have been familiar with methods of researching and time limits. has occurred. The claimant was a solicitor with the respondent and therefore delayed too long in doing so. The application doesn’t fully state why the delay of her ability to amend her claim as early as March 2019 and so she has be prejudice to the respondent due to the time line. The claimant was aware In respect of the timing and the manner of the claimant’s application, there will it would therefore not be just and equitable to allow the amendment. about as a result of her disability discrimination which has not been pled and current case in that the claimant is required to show that her dismissal came of Bryant v Housing Corporation years after that so it is well out of time. The situation that arose in the authority ability. There is no reason why the claimant did not prevent her from claiming unfair dismissal so [1998] ESCA Civ 866 equally applies to the was unable to Her 30 Conclusions 29 Relevant Law 28 27 Ltd (“supra”) and have taken account of the following factors in doing so. have carried out the balancing exercise in accordance with Selkent Bus Co Regulations 2013 to deal with cases fairly and justly. In reaching this view I Overriding interests of justice to dismiss this application being allowed than the claimant will by it being refused. respondent I am of the view that this application Having assessed the submissions and representations limits and the timing and manner of the application. factors to consider are the nature of the amendment, the applicability of time that will be caused to parties by granting or refusing the amendment. factors having regard to the interests of justice and to the relative hardship a Tribunal must carry out a careful balancing exercise of all the relevant The authority of Selkent Bus Co Ltd v Moore [1996] ICR836 EAT states that discrimination disability at the relevant time they could not have anticipated The respondent replied that even if the respondent had had knowledge of her arrogant and dismissive in the way she has been treated. impairment was likely to last more than 1 2 months. The respondent has been the respondent knew she had a disability when the doctor stated that her In her response to these submissions, the claimant stated that in July 2013 respect of the hardship and justice test. protracted claim. be necessary and in accordance with the overriding objective, it is already a labelling of the claim. This is because although the claimant submits that her I consider that the amendment is a new cause of action and not merely a re Objective will suffer a greater injustice and hardship in the amendment claim from the facts relied upon in the ET1 claim form. Page 14 The balance therefore tips in favour of the respondent under Regulation 2 of the Employment should be refused and in accordance made by both parties, It is therefore in the because a disability Tribunal with the The the in 32 31 protract these proceedings Furthermore, as a new cause of action, to allow the amendment would clearly do. amend her claim to include disability discrimination which the claimant did not claimant in correspondence an amendment application should be submitted without delay. 2019, at which it was recorded by Judge Docherty in the Note of Hearing that to make an application for amendment at the Preliminary Hearing on 1 April Strathclyde University Law Clinic in March 2019 and also intimated her wish Furthermore, application September lodged on 23 March 201 5 and the amendment application being made on 3 Notwithstanding determined. I am refusing this application, amendment application was not made until 3 September 2019. However, as the claimant’s As the amendment is a new cause of action there is a time bar issue in that her illness and lack of representation the view that she had knowledge of all the material facts to plead a claim for Whilst I have had regard to the appellant’s claim claim. and when presenting her unfair dismissal claim on 23 March 201 5 and that disability discrimination at the time of her dismissal on 18 December instruct a legal representative also not provided any specification applicable tests and different facts would require to be relied upon. She has discrimination is for unfair dismissal confirm by no later than 15 May 2019 whether she intended and is a factor that weighs considerably 2019 is more than four years after the time limit for such an it is not in dispute Page 15 is a separate jurisdiction from unfair dismissal with its own employment that, the passage of time between the ET 1 claim form being dated 1 May 2019, Judge Meiklejohn requested that the as it still requires further specification was terminated to assist her with these proceedings, while she had a mental the time bar issue will not require that the claimant sought of her disability discrimination did not prevent her from lodging that in December ill-health and her inability against the claimant. illness, 2014 and the Additionally, advice from the disability I am of to be claim. from to to 15 10 In all of these circumstances the application to amend is refused. dismissal claim. Yet in refusing this application, the claimant is still entitled to pursue her unfair elongate the evidence and the Final Hearing which would incur further costs. claimant and there may be a need for additional 19 November 201918 November 2019 R Sorrell witnesses that would