Mr B F Gourlay v West Dunbartonshire Council: 4106122/2015 and Others

EMPLOYMENT TRIBUNALS (SCOTLAND)

Case No 4106122/2015, 4100137/2016, 4105282/2016, 4100153/2017

Venue Glasgow

Hearing 21 December 2018 (Preliminary Hearing)

Between

Mr Brian F. GourlayClaimant

West Dunbartonshire CouncilRespondent

Before

Employment Judge Ian McPherson

Date 17 September 2021

JUDGMENT

The Judgment of the Employment Tribunal is that: -(1) Having heard parties’ legal representatives, at this Preliminary Hearing, in respect of the claimant’s opposed application, dated 10 September 2018, to amend the consolidated ET1 claim form, the Tribunal allows the amendment in full, being satisfied that it is in the interests of justice, and in accordance with the Tribunal’s overriding objective, to allow this amendment, and further being satisfied that it is just and equitable to extend time, under Section 123(1) (b) of the Equality Act 2010, to allow the claimant to bring this new cause of action, in respect of the respondents’ alleged failure to make reasonable adjustments, contrary to Section 20 of the Equality Act 2010.

(2) Having allowed the amendment, the Tribunal also allows the respondents, if so advised, a period of no more than 4 weeks from the date of issue of this Judgment, to lodge with the Tribunal, by e- mail, their own further and better particulars in reply, with copy to be sent at the same time to the claimant’s representative, so as to answer the claimant’s additional averments added by that amendment allowed by the Tribunal, relating to the respondents’ alleged failure to make reasonable adjustments, contrary to Section 20 of the Equality Act 2010, and so augment their own consolidated grounds of ET3 response dated 20 September 2018.

(3) Further, the Tribunal orders that the consolidated claim and response, as so amended, shall proceed to the listed 16 day Final Hearing, on the mutually agreed dates assigned at this Preliminary Hearing, being Monday to Friday 3/7, 10/14 and 17/21 June 2019, and Tuesday, 30 July 2019, and previously communicated to parties in the Judge’s written Note and Orders of the Tribunal dated 24 December 2018, copy previously issued to both parties’ representatives under cover of a letter from the Tribunal dated 7 January 2019, and the Notice of Final Hearing issued on 11 January 2019.

REASONS

[1]These combined cases called again before me on the morning of Friday, 21 December 2018, for a Preliminary Hearing, previously intimated to parties’ representatives by the Tribunal by Notice of Preliminary Hearing dated 2 November 2018.

[2]This Preliminary Hearing follows upon a long and winding road of earlier procedure going back to the first of these combined cases being presented as far back as April 2015.

[3]More recently, the cases called before me at a Case Management Preliminary Hearing, held in private, on 29 October 2018, following which my written Notes and Orders, dated 31 October 2018, were issued to both parties’ representatives under cover of a letter from the Tribunal dated 2 November 2018.

[4]In that Note and Orders, I recorded that, of consent of parties, the claimant had withdrawn certain identified claims, or parts of claims, and a Rule 52 Judgment was granted, dismissing those identified claims, or parts of claims, following upon their withdrawal.

[5]Further, this Preliminary Hearing was assigned, for a full day at this sitting of the Tribunal, before me as an Employment Judge sitting alone, to consider the claimant’s opposed amendment application, dated 10 September 2018, and any further case management required in respect of the combined claim and response being assigned to a Final Hearing.

[6]At paragraph 14 of that Note, I set forth an Order that, by no later than 4.00pm on Friday, 14 December 2018, parties’ representatives should each prepare, and provide to the Tribunal, by email, with a copy provided at the same time to the other party’s representative, written outline submissions on the opposed amendment application.

[7]Further, I ordered that parties' representatives should liaise with each other and co-operate to provide the Tribunal with one hard copy of each party's written submissions, and a ring binder containing a Joint Bundle of Authorities, duly indexed, and tabbed, for lodging at the start of the Preliminary Hearing.

[8]I also ordered that I would hear oral submissions from each party’s representative, claimant’s representative first, then from the respondents’ representative, each providing an outline of their full written submission, and also to include their oral response to the points made in the other party's written submission.

[9]In terms of Rule 45 of the Employment Tribunals Rules of Procedure 2013, I ordered that each party's representative would have no more than 60 minutes to address the Tribunal on behalf of their client, and no more than 30 minutes to reply to the other party’s written submission.

[10]Following an in chambers’ consideration, on 5 December 2018, of parties’ further correspondence, received after that Case Management Preliminary Hearing, I issued a supplementary Note and Orders of the Tribunal, dated 5 December 2018, issued to both parties’ representatives under cover of a letter from the Tribunal dated 5 December 2018. Parties’ Outline Written Submissions

[11]By email sent at 15:40 on Friday, 14 December 2018, Mr Ettles, the respondents’ solicitor, duly intimated to the Tribunal, with copy to Ms Dalziel for the claimant, his written outline submissions for the respondents, together with his list of 13 authorities.

[12]Unfortunately, the claimant’s solicitor, Ms Dalziel, did not comply with that previous Order of the Tribunal, and by email of 14 December 2018, sent at 16:14, she apologised, for her human error in not diarising the date for compliance, and sought an extension of time to do so by no later than 4.00pm on Tuesday, 18 December 2108.

[13]On that application for an extension of time being brought to my attention, on the morning of 18 December 2018, I granted her application, and the clerk to the Tribunal emailed both parties’ representatives advising them accordingly.

[14]By email sent at 15:55 on Tuesday, 18 December 2018, Ms Dalziel, the claimant’s solicitor, duly intimated to the Tribunal, with copy to Mr Ettles for the respondents, her written outline submissions for the claimant. Claimant’s Application to Amend his ET1

[15]By way of an Order dated 6 August 2018, I had previously ordered that Ms Dalziel, as the claimant’s new representative, should draft and intimate to the Tribunal, and send a copy at the same time by email to the respondents’ representative, Mr Ettles, a written note setting out those parts of the existing pled claims (in case numbers 4106122/15, 4100137/16, 4105282/16 and 4100153/17) which were no longer being pursued by the claimant.

[16]On 10 September 2018, Ms Dalziel, the claimant’s solicitor, intimated to the Tribunal, with copy sent to Mr Ettles for the respondents, a “Conjoined Paper Apart” to the ET1 for the claimant, being a typewritten,17-page document, extending to some 48 numbered paragraphs. together with a separate, 3- page typewritten document of “Previously pled claims no longer being pursued”.

[17]When, on 10 September 2018, the claimant’s solicitor, Ms Dalziel, emailed the Tribunal, with a copy sent to Mr Ettles for the respondents, she stated as follows: - “I act on behalf of the Claimant in the above cases, and now attach a fresh conjoined ET1, setting out the whole detailed legal and factual basis of the existing claims pled, as being pursued by the Claimant. Separately, I have attached, as ordered by the Tribunal, a detailed written note setting out those parts of the existing pled claims which are no longer being pursued by the Claimant. I also attach a completed PH agenda in respect of the PH on case management which is listed before the Tribunal on 29 October 2018. In accordance with rule 29 of the Employment Tribunals Rules of Procedure 2013 (ET Rules), I am requesting an order for leave for the Claimant to amend his claim. The amendments which the Claimant wishes to make are clearly shown in red in the attached fresh conjoined Paper Apart to the ET1. The amendments relate to a claim in respect of a failure on the part of the Respondent to make reasonable adjustments under s20 of the Equality Act 2010. The Claimant requests leave to amend his claim because although he previously made a clear reference (in paragraph 4 of the paper apart to claim number S/4106122/2015) to a failure on the part of the Respondent to put in place reasonable adjustments, he did not, at the time, specify what these adjustments were, nor did he confirm the statutory basis upon which this aspect of the claim was being made. This was primarily due to the fact that he was, at the time of submitting the ET1 in 2015, an unrepresented Claimant, who was struggling with the enormity of setting forth in an understandable fashion the claims he was attempting to bring. The Claimant's position is that this is not an application to introduce a new cause of action, but simply an application to add more detail to the ET1, such as to specify the factual and legal basis upon which this aspect of the claim is premised. The Claimant's position is that the reasonable adjustments claim is not time barred, (it having been referred to in the originating claim and being in time as at 12 April 2015 when the claim was submitted), and the Claimant also believes that the Respondent is unlikely to be prejudiced, seriously or otherwise, by the introduction of further detail as regards the reasonable adjustments claim. The Claimant did, later in 2015, submit an amendment application in respect of claim number S/4106122/2015 whereby he sought to add in additional information as regards the alleged failure to make reasonable adjustments, but although that amendment application was objected to by the Respondent, it was never, as I understand matters, ruled on by the Tribunal. I confirm that I have complied with rules 30(2) and 92 of the ET Rules by providing a copy of this correspondence to Mr Nigel Ettles (the solicitor for the Respondent). Should Mr Ettles have any objection to this amendment application, this must be sent to the Tribunal office as soon as possible and copied to me.”

[18]A copy of the Conjoined Paper Apart is held on the Tribunal’s casefile, so it is not necessary to reproduce its full terms here, so I simply record here that I have had regard to its full terms in writing up this Judgment and coming to my decision on the opposed amendment application.

[19]Of particular note, I record here that paragraphs 4 to 12, and 41, of that Conjoined Paper Apart, were in red print, rather than black, to show the claimant’s proposed amendment to bring a claim in respect of an alleged failure on the part of the respondents to make reasonable adjustments under Section 20 of the Equality Act 2010. Respondents’ Objections

[20]The respondents’ objections were set forth in Mr Ettles’ email of 17 September 2018, as follows: - “I refer to your letter of 6 August 2018 and to the email from the Claimant’s solicitor of 10 September 2018. This email is sent only as a response to the Claimant’s amendment application which forms part of the Claimant’s proposed Conjoined Paper Apart to ET1. The Respondent will separately submit a consolidated ET3 response form. The Respondent’s response to the Claimant’s amendment application is as follows: - 1. The Respondent objects to the Claimant’s amendment application, seeking to add by way of amendment a range of new claims for alleged failure to make reasonable adjustments that are not contained in the originating pleadings of the combined claims 4106122/2015, 4100137/2016, 4105282/2016 & 4100153/2017. 2. The Claimant has not set out in any great detail the basis on which it is claimed that allowing the application should be allowed in terms of the factors set out in Selkent Bus Co v Moore

[1996] ICR 836

). 3. However, it plainly goes beyond the consolidation of the grounds of claim in these combined cases on which the Claimant is insisting, to raise new claims for reasonable adjustments not contained therein. 4. The claims which the Claimant is seeking to add by way of amendment application are all the claims for reasonable adjustments at Paragraphs 4-12 and Paragraph 41 of the Draft Consolidated Paper Apart to ET1 submitted by the Claimant’s representative on 10 September 2018. 5. The Respondent would comment as follows in terms of the factors the Tribunal must consider per Selkent Bus Co v Moore

[1996] ICR 836

:(a) In terms of the first question required to be answered by the Selkent analysis (categorisation of the proposed amendment), these new claims would be in the 3rd category as set out in Argyll & Clyde Health Board v Foulds [2006]

UKEAT/0009/06

, especially paragraph 39 on page 13: namely, they are new causes of action requiring new facts to be pled. Case law in this context is clear that raising new claims of disability discrimination is to be considered as category 3, and not as category 1 or 2, even if different claims for other types of disability discrimination were contained in the originating pleadings. For example, Skinner v Leisure Connection plc (

UKEAT/0059/04

[2004] All ER (D) 330

confirmed that a claim for one form of disability discrimination (e.g. victimisation or harassment) does not include claims for another type of disability discrimination (e.g. alleged failure to make reasonable adjustments), and the EAT refused to allow an amendment to add what would be an additional causes of action of the different type. Simply because a claim(s) at Tribunal contained discrimination claims does not mean that an application to amend to add new claims of disability discrimination can be categorised as other than Category 3 (new claims requiring new facts to be pled), and that is what these are in the Respondent’s submission.

(b) The Tribunal is required, as such, to consider whether these new claims sought to be added by way of amendment are time-barred (the second question required to be answered by the Selkent analysis). The Respondent’s position is that these new claims are severely time-barred, being raised almost 3 years after the termination of the Claimant’s employment on 24 September 2015. (The Claimant appears to maintain an attitude, demonstrated for some time in his approach to his litigation of these claims, that he can raise whatever additional claims whenever he likes for as long as he wishes even after these have become time-barred, which is unacceptable. The Respondent is entitled not only to clarity of the claims it faces and would have to answer at any hearing, but to finality of litigation, and instead of using the process of ‘consolidation of pleadings’ to do just that, he is additionally seeking to add a range of new claims considerably out of time.)

(c) In terms of the 3rd question required to be answered by the Selkent analysis, the Respondent would be significantly prejudiced in having to face this raft of new claims, in addition to the claims that do reflect the originating pleadings. The Claimant’s amendment application envisages the Respondent being additionally faced (beyond claims that do reflect the originating pleadings) with a raft of new matters of a new type of action (for reasonable adjustments) submitted substantially out of time, without adequate explanation for that (and contrary to the Respondent’s right to finality in litigation) which would prolong the hearing in this case significantly. The Respondent would have to give evidence about all these additional aspects of his employment over a long period of time in a much protracted hearing. By contrast, the Claimant would not be relatively prejudiced, as he would be able to pursue those claims (per his Consolidated grounds of claim) which do reflect the originating pleadings in these claims. He would simply be prevented from bringing in an additional raft of new matters, in the same way as occurred in for example the Skinner case referred to above. The balance of justice is thus significantly in favour of rejecting the amendment application in so far as it is seeks to add these additional claims, and in the Respondent’s submission that application should be refused.” Preliminary Hearing before this Tribunal

[21]On 20 September 2018, Mr Ettles intimated to the Tribunal, with copy sent to Ms Dalziel for the claimant, the respondents’ “Consolidated Grounds of ET3 Resistance”. It is a typewritten,11-page document, extending to some 30 numbered paragraphs.

[22]A copy is held on the Tribunal’s casefile, so it is not necessary to reproduce its full terms here, so I simply record here that I have had regard to its full terms in writing up this Judgment and coming to my decision on the opposed amendment application. Authorities relied upon by Parties

[23]For the respondents, Mr Ettles cited the following list of authorities: 1. Harvey on Industrial Relations and Employment Law, Amending the Claim (Division PI). 2. Selkent Bus Co. v Moore

[1996] ICR 836

. 3. Cocking v Sandhurst (Stationers) Ltd.

[1974] ICR 650

. 4. Argyll & Clyde Health Board v Foulds [2006]

UKEAT/0009/06

. 5. Ali v Office of National Statistics

[2005] IRLR 201

. 6. Skinner v Leisure Connection plc (

UKEAT/0059/04

[2004] All ER (D) 330

. 7. Lewis v Blue Arrow Care Ltd. (

EAT/0694/99

). 8. Smith v Zeneca (Agrochemicals) Ltd.

[2000] ICR 800

. 9. Transport and General Workers Union v Safeway Stores Ltd. (

UKEAT/0092/07

[2007] All ER (D) 14

.10. Ahuja v Inghams

[2002] EWCA Civ 192

& EAT decision.

11. Abercrombie v Aga Rangemaster Ltd

[2013] EWCA Civ 1148

12. Mr A Chandhok, Mrs P Chandhok v Ms P Tirkey [2015]

UKEAT/0190/14/KN

13. Ladbrokes Racing Ltd v Mr Lawrence Stephen Traynor [2007]

UKEATS/0067/07

[24]For the claimant, Ms Dalziel did not provide a list of authorities, but her written outline submission, referred to Selkent, as per the respondents’ list, and she also cited, within her submission, Galilee –v- Commissioner of Police of the Metropolis

UKEAT/207/16

. It is now reported at

[2018] ICR 634

[25]At the start of this Preliminary Hearing, just after 10.15am, I discussed authorities with both parties’ representatives. Mr Ettles advised me that, having handed up to my clerk some loose-leaf documents, as itemised below, in paragraph 26 of these Reasons, it was not now necessary for him to refer me to all of the authorities previously listed by him. Ms Dalziel indicated she was content with the authorities’ Bundle handed up by Mr Ettles.

[26]Mr Ettles provided me with a hard copy judgment in each of Galilee, Selkent, Abercrombie, and TGWU, as well as prints from Harvey, being extracts from Division P1 (Practice and Procedure), namely “(b) Altering existing claims and making new claims”, paragraphs [311.04] to [312.20], and “(3) ‘just and equitable’ extension”, paragraphs [277] to [285]. In his later oral submissions, he cited some other judgment extracts from Harvey, rather than producing the full copy judgments. Claimant’s Written Submissions

[27]In her email of 18 December 2018, copied to Mr Ettles for the respondents, Ms Dalziel intimated to the Tribunal her written submissions for the claimant, together with a separate executive summary document. Her full outline was some 5 typewritten pages, extending to 22 paragraphs, and I reproduce that later when narrating her oral submissions to the Tribunal.

[28]In her executive summary, running to 8 paragraphs, over 2 typewritten pages, Ms Dalziel had stated as follows: - 1. The Claimant submits that the Tribunal should exercise its discretion in such a way as to grant his application to amend the ET1 in the terms sought. 2. The Claimant submits that the Tribunal should have regard to the principal factors that a Tribunal may consider when deciding whether or not to grant an amendment application, as set out in the case of Selkent Bus Company Limited (trading as Stagecoach Selkent) – v- Moore [1996] IRLR. Said principles include the nature of the amendment, time limits and the timing and manner of the application. 3. It is accepted that the amendment seeks to introduce a new cause of action. Said new cause of action is a claim in respect of an alleged failure by the Respondent to make reasonable adjustments under and in terms of s20 of the Equality Act 2010. 4. It is also accepted that the proposed new cause of action is out of time. Given that it is out of time, the Claimant submits that the Tribunal should exercise its discretion in such a way as to extend the time for lodging the claim under and in terms of s123 (1) (b) of the Equality Act 2010, and thereafter allow the amendment to be made. 5. The Claimant submits that in the event that the Tribunal is of the view that it cannot make a ruling in the course of the Preliminary Hearing as to whether it is just and equitable to extend time under s123 (1) (b) of the Equality Act 2010, then this does not mean that the amendment application is bound to fail. 6. The Claimant submits that in the circumstance set out in paragraph 5 above, the Tribunal would be able, as per the decision of Judge Hand QC in Galilee –v- Commissioner of Police of the Metropolis

UKEAT/207/16

, to allow the amendment application, with the question of whether it is just and equitable to extend time being reserved until after conclusion of all of the evidence at the final hearing on the merits. 7. The Claimant submits that it would be just and equitable for the Tribunal to extend time. The Claimant also submits that the timing and manner of the application to amend is such that it would be reasonable for the Tribunal to grant same. 8. The Claimant submits that the injustice and hardship faced by the Claimant if the amendment was not allowed, would be significantly greater than the injustice and hardship caused by the Respondent if it was. Respondents’ Written Submissions

[29]In his email of 14 December 2018, copied to Ms Dalziel for the claimant, Mr Ettles intimated to the Tribunal his written submissions for the respondents, comprising two parts, over 9 typewritten pages, extending to 27 paragraphs, and I reproduce that later when narrating his oral submissions to the Tribunal.

[30]It comprised an executive summary (part one); and a part two, split into two sections A and B, on the legal and factual position on the amendment application; and finishing with a conclusion, inviting the Tribunal to refuse the claimant’s amendment application. Oral Submissions for the Claimant

[31]In her oral submissions to the Tribunal, starting at 10.25am, Ms Dalziel spoke to the terms of her full written outline submission, the terms of which I reproduce below, in full, as follows: - BACKGROUND 1. The Tribunal, following a Case Management Preliminary Hearing held on 29 October 2018, ordered that a further Preliminary Hearing be set down on 21 December 2018, to deal with the matter of the Claimant’s opposed amendment application of 10 September 2018. 2. The Claimant, on 10 September 2018, and further to a Tribunal Order so to do, lodged a fresh conjoined ET1, which set out the whole detailed legal and factual basis of the existing claims pled, as being pursued by the Claimant. 3. The Claimant, at the time of lodging the fresh conjoined ET1, made an application to amend same, such as to include full details of claims in respect of an alleged failure on the part of the Respondent to make reasonable adjustments, contrary to s20 of the Equality Act 2010. The claims which the Claimant is seeking to add by way of amendment application are the claims set out at paragraphs 4 -12 inclusive and referred to in paragraph 41 of the conjoined Paper Apart to the ET1. 4. At the time of lodging his originating ET1’s the Claimant did not have the benefit of legal representation. He had, in the course of the fourth paragraph to the Paper Apart to claim number 4106122/2015 made a reference to a failure on the part of the Respondent to make reasonable adjustments. He had not however, specified what these adjustments actually were, or the factual basis of the claims. He had also omitted to specify the statutory basis upon which the claims of a failure to make reasonable adjustments were being made. WHAT THE CLAIMANT IS ASKING THE TRIBUNAL TO DO 5. It is conceded that the claims set out at paragraphs 4-12 of the conjoined Paper Apart to the ET1 have been brought out of time (see paragraph below). It is however submitted on behalf of the Claimant that the Tribunal should exercise its (wide) judicial discretion in such a way as to; a) grant an extension of time for the lodging of those claims set out at paragraphs 4-12 inclusive of the conjoined Paper Apart (on the basis that it is just and equitable to do so) and thereafter b) grant the application to amend in the terms sought. In addition to being just and equitable, granting an extension of time and thereafter granting the application to amend would be in keeping with the overriding objective as set out in Rule 2 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013. It would ensure that parties were on an equal footing, and would ensure that the case was dealt with in a way which is proportionate to the complexity and importance of the issues. It would, moreover, in all the relevant circumstances, be in keeping with the requirements of relevance, justice and fairness, which are inherent in all judicial discretions. In the event that the Tribunal is of the view that it cannot make a ruling as to whether or not it is just and equitable to allow an extension of time on the basis of parties’ representatives submissions (oral and written) only, and without an evidential investigation, the Claimant submits in the alternative that the Tribunal should allow the amendment application and reserve judgement as to the question of whether or not it is just and equitable to allow an extension of time, until all evidence has been heard at the final hearing (see reference to Galilee –v- Commissioner of Police of the Metropolis

UKEAT/207/16

, (‘Galilee’) paragraph 12 below). SELKENT 6. One of the leading cases as regards the amendment of claims is that of Selkent Bus Company Limited (trading as Stagecoach Selkent) v Moore

[1996] IRLR 661

(‘Selkent’). Selkent, which is an EAT decision, makes clear that when deciding whether or not to grant an amendment application, a Tribunal must have regard to all the circumstances. Crucially, the Tribunal must engage in a balancing exercise, and must balance the injustice and hardship of the amendment (in this case to the Respondent) against the injustice and hardship (in this case to the Claimant) of refusing it. In the Claimant’s submission, there would be far greater injustice and hardship to the Claimant if the amendment were refused, than there would be to the Respondent if it were allowed. According to Selkent, the principal relevant factors that a Tribunal may consider when deciding whether to allow the amendment include the nature of the amendment, time limits and the timing and manner of the application. NATURE OF THE AMENDMENT 7. It is accepted that the nature of the amendment proposed is not minor, nor trivial. To the extent that the Claimant did not, in his originating ET1(s) specify the nature of the reasonable adjustments which it is alleged were not made, did not set out the facts upon which the claim of a failure to make reasonable adjustments was premised and did not confirm the statutory basis of the claims, it is accepted that the proposed amendment does indeed constitute a new cause of action, and one which cannot reasonably be said to arise out of the same facts as the originating claim/s. TIME LIMITS 8. It is accepted that the claims which are the subject of the current amendment application have been brought out of time. The Claimant maintains that the alleged failure to make reasonable adjustments forms part of a continuing act of discrimination for the purposes of s123 (3) (a) of the Equality Act 2010. The last act of discrimination took place on 25 August 2016. The claim in respect of the failure to make reasonable adjustments should therefore have been brought within 3 months of 25 August 2016. 9. The EAT in Selkent stated at p843 that ‘if a new complaint or cause of action is proposed to be added by way of amendment it is essential for the tribunal to consider whether that complaint is out of time and, if so, whether the time limit should be extended under the applicable statutory provisions’. 10. As outlined in paragraph 8 above, it is accepted that the claims have been brought out of time, and therefore the Tribunal need not direct its mind to the question of whether the claims have been brought in time. Rather, the question for the Tribunal to ask itself is whether the time limit for the lodging of those claims should, in all the circumstances, be extended under the applicable statutory provision. 11. In the Claimant’s submission, the time limit should be extended under the applicable statutory provision. The applicable statutory provision is s123(1)(b) of the Equality Act 2010. It is submitted that it would be just and equitable for the Tribunal to extend time for the lodging of the claims for the reasons set out at paragraphs 14 - 18 below. 12. In the alternative however, if the Tribunal is of the view that it cannot determine whether it is just and equitable to extend time for the lodging of the claims without further evidential investigation, the Claimant would submit that the decision as to whether to extend time can and should be postponed until all the evidence has been heard. Although Selkent makes clear that ‘if a new complaint or cause of action is proposed to be added by way of amendment it is essential for the tribunal to consider whether that complaint is out of time and, if so, whether the time limit should be extended under the applicable statutory provisions’, Judge Hand QC in paragraph 109 of Galilee noted that Lord Justice Mummery’s use of the word ‘essential’ in Selkent ‘should not be taken in an absolutely literal sense and applied in a rigid and inflexible way so as to create an invariable and mandatory rule that all out of time issues must be decided before permission to amend can be considered’. 13. Judge Hand further points out at paragraph 109 of Galilee that sometimes it may not be possible or sensible to deal with the time limit matter at a preliminary hearing, and such decisions may need to be postponed until all the evidence has been heard. In such cases, permission to amend can precede decisions relating to time limits. TIMING AND MANNER OF APPLICATION / JUST AND EQUITABLE 14. Applications to amend pleadings can of course be made at any stage in the proceedings and any application to amend should not be refused solely because there has been a delay in seeking the amendment. 15. Although the current amendment application is being made more than two years late (the last act of discrimination in the continuing act of discrimination complained of in the ET1 having allegedly taken place on 25 August 2016), consideration should be given by the Tribunal to a number of very important factors which together explain the reason for the delay. 16. In the first instance, the Claimant was, at the time of raising the proceedings and for long periods of time thereafter, without the benefit of legal representation. The claims which he sought to raise were factually and legally very complex. He did, in the course of the Paper Apart to claim number 4106122/2015, state at paragraph 4 of same that ‘as at Sunday 12 April 2015, reasonable adjustments have not been put in place during which time the Claimant has returned to work for 3 months, ie back into the work environment in which stress and associated issues are foreseeable’. Although no more detail than this was given, the Respondent has, to some extent, been on notice since April 2015 that the Claimant believed that reasonable adjustments (albeit unspecified at the time of lodging the claim) had not been made. 17. Secondly, the Claimant did in fact make an amendment application in December 2015, in terms of which he sought to introduce claims in respect of a failure to make reasonable adjustments. That amendment application was however, never considered by the Tribunal, and was superseded by further process, specifically the fresh amendment application made by the Claimant’s then representative, Mr Booth in October 2017 (following a lengthy sist in the proceedings). The point, once again, is that the matter of reasonable adjustments, and the alleged failure on the part of the Respondent to make same, has been on the Respondent’s radar for at least three years. It is not the case that the Claimant’s current amendment application of 10 September 2018 represents something of an ambush – it does not. Whilst it is accepted that the factual basis of the claims had not been clearly set out until 10 September 2018 (following the instruction of fresh legal representation by the Claimant) the fact that the Claimant wishes to amend his ET1 to pursue such a claim has been known to the Respondent for a very long time. 18. In deciding whether it is just and equitable to extend time to permit an out of time discrimination claim (such as the claims which are the subject of the amendment application) to proceed, the Tribunal is entitled to take into account anything that it deems to be relevant, and the Claimant invites the Tribunal to take the factors set out at paragraphs 16 and 17 above into account. 19. In terms of the prejudice which would be suffered by the Respondent if the amendment were allowed, the Claimant maintains there would be very little. The Respondent, as it stands, and before any decision on the amendment application is made, is facing a lengthy Tribunal hearing, which would last 12 days at the very least (5 days for evidence in chief for the Respondent’s witnesses, 5 days for cross of the Respondent’s witnesses, and 2 days for evidence in chief from and cross of, the Claimant). 20. In the course of his email to the Tribunal dated 8 November 2018, Mr Ettles for the Respondent has confirmed that if the Claimant’s amendment application is allowed by the Tribunal, it may be that the Respondent will not require to call any additional witnesses. On this basis, it simply cannot be said, in the Claimant’s submission, that the Respondent will be put to significant additional time or effort in defending the reasonable adjustment claims if the amendment is allowed. Although the Respondent has indicated that three of its witnesses ‘may’ require to give a ‘substantial’ amount of additional evidence, the straightforward nature of the claims which form the proposed amendment is such that this, in the Claimant’s submission, is unlikely, particularly given that the Tribunal has now confirmed that witness statements are to be used. 21. The Claimant, on the other hand, would indeed be prejudiced if the amendment application was refused, primarily because what might otherwise be good claims in law would be defeated before they could be heard and considered. 22. The application should therefore be, in the Claimant’s submission, granted.

BACKGROUND

[32]In opening her oral submissions, Ms Dalziel stated that while her amendment application, dated 10 September 2018, had stated that the amendment was not a new cause of action, but was “there to put meat on the bones of a pre-pled claim for reasonable adjustments”, she was now saying, at this Preliminary Hearing, as per her skeleton, that she had revisited her earlier position, and she had concluded that, in real terms, that she was asking the Tribunal to allow the amendment as a new cause of action.

[33]Having looked at the 4106122 claim, at paragraph 4, referring to reasonable adjustments, Ms Dalziel stated that, having looked at it again, and with the other ET1s in the other cases, she could not reasonably contend that the claim was pled properly in the course of those 4 ET1s, and that it is “not more meat on the bones”, and she accepted that it is a new cause of action. Further, as she agreed that it is a new cause of action, she conceded it is clearly out of time, and, having looked at Mr Ettles’ submissions, and his arguments about new cause of action, and whether it is in time, she has limited her submissions to the Tribunal at this Preliminary Hearing.

[34]Ms Dalziel then asked the Tribunal to do two things. Firstly, given the application is out of time, she invited the Tribunal to use its discretion to extend time, although very late, in comparative terms, as she submitted it is just and equitable to do so. Thereafter, secondly, she invited the Tribunal to grant the amendment and allow the new head of claim in.

[35]Conceding that it is a new cause of action, she referred to Selkent, at page 843, and that it is essential for the Tribunal to consider whether it is out of time. She also referred to the statutory test under Section 123(1)(b) of the Equality Act 2010, and the very wide discretion available to the Tribunal to extend time, on a just and equitable basis, and take into account all relevant factors.

[36]Referring to paragraph 16 of her written submission, Ms Dalziel focused on how the claimant was without benefit of legal representation, or indeed representation, when he presented his claims, and that these are complex claims, not just a straightforward unfair dismissal claim, but multi-facetted, yet the claim had referred, in his claim 122, to reasonable adjustments, which she submitted was evidence that he had that claim in his contemplation at that point.

[37]Further, she submitted, it was the claimant’s “best effort” to make the Tribunal and the respondents aware of his complaint of the respondents’ failure to make reasonable adjustments, so that the respondents had been put on notice, albeit without sufficient detail.

[38]Referring then to paragraph 17 of her written submission, Ms Dalziel stated that the claimant had made an amendment application in December 2015, and Mr Booth had done so, as the claimant’s representative, in October 2017. She felt the respondents’ position, as per Mr Ettles’ submissions, was very misleading, in referring to it as “an ambush”, as there had been a long and winding road to get to this point in these Tribunal proceedings.

[39]As per her paragraph 19, Ms Dalziel submitted that more hardship would be caused to the claimant, if the amendment was refused, than would be caused to the respondents if the amendment were allowed. If not allowed, she referred to the claimant’s reasonable adjustments claim “dies today”, and that, she added, was not just and equitable in all the circumstances.

[40]Further, Ms Dalziel disputed that the respondents were being “ambushed”, and added that the respondents seek to “hang their hat on procedural matters”, but that is not a fair line of argument, and much of the respondents’ submissions fall away given she has conceded that the application involves a new cause of action, and she had conceded it is time-barred, but argued that time should be extended on a just and equitable basis.

[41]Ms Dalziel added that she did take “considerable issue” with suggestions that the respondents would be put to more effort, time and expense, if the Tribunal granted the amendment application, and referring to paragraph 20 of her submissions, she noted how Mr Ettles’ email of 8 November 2018 had said a further 2 days evidence might be required by the respondents, which she described as an “awful long time” for 3 witnesses to speak to reasonable adjustments, in a case where witness statements are to be used, as ordered by the Tribunal.

[42]Nowhere, in any of the respondents’ objections to this amendment, Mr Dalziel submitted, does it suggest that the claim’s reasonable adjustments claim does not have force, or no legal or factual basis. The respondents’ whole objections, she stated, circles around it being out of time, and a new cause of action. If, however, the respondents believe the reasonable adjustments claim has no basis, then they are not prejudiced, she added, because they can easily disprove his allegations of failure to make reasonable adjustments, and the respondents’ hardship cannot be said to be greater than the claimant’s, where the respondents have throughout always been legally represented.

[43]Further, added Ms Dalziel, when Mr Booth was “de-instructed” by the claimant, that is he was no longer instructed by him, there was no undue delay by her, as the claimant’s new legal representative, in making this application for amendment, and the respondents’ solicitor, Mr Ettles, had replied to the claimant’s conjoined paper apart, and she invited the Tribunal to extend time, and grant the amendment that she had requested on the claimant’s behalf.

[44]On the matter of her reply to Mr Ettles’ written outline submissions for the respondents, Ms Dalziel stated that there was little further for her to say, other than, referring to Galilee, she felt there was enough information before this Tribunal to decide matters at this Preliminary Hearing, and to grant an extension of time.

[45]She further stated that Galilee was her “backstop position”, if I wished to reserve the time-bar point until after all the evidence had been heard at a Final Hearing, as it would be open to the Tribunal to follow Galilee, and the judgment of the Scottish EAT in Amey did not prevent me from falling Galilee.

[46]In closing, Ms Dalziel argued that there was sufficient information before the Tribunal to allow the extension of time, and the amendment, on the basis of her oral and written submissions, and she invited me not to refuse her application. Oral Submissions for the Respondents

[47]It then being 10.53 am, I invited Mr Fettles to address the Tribunal. In his oral submissions to the Tribunal, Mr Ettles spoke to the terms of his full written outline submission, the terms of which I reproduce below, in full, as follows: - Part One – Executive Summary 1. The basis of the Respondent’s objection to the present amendment application in so far as it seeks to add new claims not reflecting the originating pleadings in the above 4 claims is set out in the Respondent’s email of 17 September 2018, as further referred to in Part 2B below. In summary, the Respondent’s position in terms of the factors the Tribunal must consider per Selkent Bus Co v Moore

[1996] ICR 836

is:(a) The proposed amendment seeks to add considerable new matters, generally with new facts with new legal basis of claim, as more fully detailed in section 2B below.

(b) As such, in terms of the first question required to be answered by the Selkent analysis – categorisation of the proposed amendment – it is submitted that these claims are in the 3rd category as set out in Argyll & Clyde Health Board v Foulds [2006]

UKEAT/0009/06

, especially at paragraph 39 on page 13: namely, new causes of action requiring new facts to be pled.

(c) The Tribunal is required, as such, to consider whether these new claims, sought to be added by way of amendment, are timebarred (the second question required to be answered by the Selkent analysis). The Respondent’s submission is that they are severely time-barred, being raised more than 3 years after the termination of the Claimant’s employment on 24 September 2015, and in many cases referring to facts preceding that by some way. As set out in Part 2A below, with reference to paragraph [311.02] of Division PI of Harvey on Industrial Relations and Employment Law: ‘Where the Claimant proposes to include any new claim by way of amendment, the Tribunal must have regard to the relevant time to grant leave to amend (per Transport and General Workers Union v Safeway Stores Ltd.

UKEAT/0092/07

).’

(d) The Respondent is entitled not only to clarity of the claims it faces and would have to answer at any hearing, but to finality of litigation. The Claimant seeks to add a raft of new claims considerably out of time.

(e) Esto, the Tribunal considers that any of these new matters fall into category 2 (adding or substituting a new cause of action, but one which arises out of the same facts as an originating claim) – which is denied – reference is made to:

• At paragraph [312.01] of Harvey – Tribunal’s may allow a Claimant to amend to allege a different type of claim from the one pleaded provided this can be justified by the facts set out in the original claim);

• At paragraph [312.02] of Harvey – only if the new claim arises out of facts that have already been pleaded, it will not be scrutinised for time limits (otherwise it must be); and

• At paragraph [312.04] of Harvey (with reference to Abercrombie v Aga Rangemaster Ltd

[2013] EWCA Civ 1148

): Lord Justice Underhill explained that when considering applications which arguably raise a new cause of action, a key focus is not on formal classification, but is: whether the new pleadings are likely to involve substantially different areas of inquiry than the old – the greater the difference between the factual and legal issues raised by the new claim and the old, the less likely it will be permitted.

(f) As the new causes of action raised by the Claimant plainly go far beyond the originating claims, to a whole raft of new matters requiring different and new inquiry, not reflective of the claims in the originating pleadings, the Tribunal should refuse to allow them by way of amendment, whether it views them as being in Category 2, Category 3, or some in each category. (The Respondent submits that they are not matters with facts the same as those in the originating claims, and are thus Category 3 and time-barred; but even if any are considered to be Category 2, they would by definition expand extensively the factual basis of enquiry and so be at the extreme end of the spectrum i.e. of those claims so different vis-à-vis the originating claims as to be inappropriate for amendment to be permitted).

(g) The Respondent would be seriously prejudiced in having to face this whole raft of new claims, in addition to the claims that do reflect the originating pleadings. It would have to investigate and respond to this raft of new matters years after they occurred and over 3 years after the Claimant’s employment has ceased. A number of the claims contained in the originating pleadings are themselves timebarred and cannot in any case be used as a basis for amendment.

(h) By contrast, the Claimant would not be relatively prejudiced, as he would be able to pursue those claims which do reflect those of the originating pleadings. He would simply be prevented from bringing in an additional raft of further matters. The balance of justice is thus significantly in favour of rejecting the amendment application. Part Two – Legal and Factual Position on Amendment Application A – Legal Position 2. The Respondent makes reference to Division PI of Harvey on Industrial Relations and Employment Law, with reference to the legal position on amendment applications, and to the case law as specified below. 3. Per paragraphs [311] and [311.01] of Harvey, the Employment Tribunal has a discretion to determine whether or not to allow the amendment of claims, which under Rule 29 of the 2013 Tribunal Rules is a general case management power; and, per Selkent Bus Co v Moore

[1996] ICR 836

• The power is a judicial discretion, to be exercised in a manner satisfying the requirements of relevance, reason, justice and fairness inherent in all judicial decisions; and,

• The way in which the discretion will be exercised will largely be governed by the nature of the application itself. 4. Per paragraph [311.02] of Harvey, the Tribunal should consider the relevant circumstances of the particular case, and in each case must consider the core issues set out in Selkent Bus Co v Moore

[1996] ICR 836

. 5. At pages 843 and 844 of the Selkent case, the EAT set out the procedure and practice to be applied in respect of amendments: “(4) Whenever the discretion to grant an amendment is invoked, the Tribunal should take into account all the circumstances and should balance the injustice and hardship of allowing the amendment against the injustice and hardship of refusing it. (5) What are the relevant circumstances? It is impossible and undesirable to attempt to list them exhaustively, but the following are certainly relevant: (a) “The nature of the amendment”. Applications to amend are of many different kinds, ranging, on the one hand, from the correction of clerical and typing errors, the addition of factual details to existing allegations and the addition or substitution of other labels for facts already pleaded to, on the other hand, the making of entirely new factual allegations which change the basis of the existing claim. The Tribunal have to decide whether the amendment sought is one of the minor matters or is a substantial alteration pleading a new cause of action. (b) “The applicability of time limits.” If a new complaint or cause of action is proposed to be added by way of amendment, it is essential for the Tribunal to consider whether that complaint is out of time… (c) “The timing and manner of the application”. An application should not be refused solely because there has been a delay in making it. There are no time limits laid down in the Regulations of 1993 for the making of amendments. The amendments may be made at any time - before, at, even after the hearing of the case. Delay in making the application is, however, a discretionary factor. It is relevant to consider why the application was not made earlier and why it is now being made: for example, the discovery of new facts or new information appearing from documents disclosed on discovery. Whenever taking any factors into account, the paramount considerations are the relative injustice and hardship involved in refusing or granting an amendment. Questions of delay, as a result of adjournments and additional costs, particularly if they are unlikely to be recovered by the successful party, are relevant in reaching a decision.” 6. Paragraph [312.06] of Harvey emphasises that the determination (of whether or not to allow an amendment to add new causes of action) is a single stage process, assessing all the relevant factors (including those above, and anything else relevant to the case) in determining the balance of injustice and hardship. 7. (a) The first question required to be answered by the Selkent analysis is categorisation of the proposed amendment – the 3 categories of amendment being noted at Paragraph [311.04] of Harvey. (b) In the present case, the new matters going beyond the consolidation of existing claims may either be in 3rd category as set out in Argyll & Clyde Health Board v Foulds [2006]

UKEAT/0009/06

, especially at paragraph 39 on page 13: namely, new causes of action requiring new facts to be pled; or in the 2nd category (a new cause of action, but arising from the same facts as the originating claims). (c) In terms of categorisation, if the Tribunal considers that any new cause(s) of action may fall into category 2 (adding or substituting a new cause of action, but which arises out of the same facts as an originating claim):

• paragraph [312.01] of Harvey sets out that Tribunal’s may allow a Claimant to amend to allege a different type of claim from the one pleaded provided this can be justified by the facts set out in the original claim.

• paragraph [312.04] of Harvey, (with reference to Abercrombie v Aga Rangemaster Ltd

[2013] EWCA Civ 1148

) – when considering applications which arguably raise a new cause of action, the key issue is whether the new pleading is likely to involve substantially different areas of inquiry than the old: the greater the difference between the factual and legal issues raised by the new claim and the old, the less likely it will be permitted.

• paragraph [312.02] of Harvey – only if the new claim arises out of facts that have already been pleaded, it will not be scrutinised for time limits (thus, otherwise it must be). (d) Per paragraph [312.07] of Harvey, with reference to Housing Corp v Bryant

[1999] ICR 123

[2005] IRLR 201

. The Court of Appeal in Ali confirmed that different forms of discrimination claim (e.g. direct and indirect) of a particular sort (i.e. sex or race or disability) are not the same basis of claim simply because they are covered by the same discrimination legislation; and so, where a claim for one type of such discrimination (e.g. direct) has been stated in the ET1 claim form, a subsequent attempt to add another head(s) of claim for discrimination (e.g. indirect) could not be considered within the rubric of the original claim, but is an application to add a new head of claim. (f) This line of authority has been re-enforced in other case law. For example:

• Skinner v Leisure Connection plc (

UKEAT/0059/04

[2004] All ER (D) 330

confirmed that a claim for one form of disability discrimination (e.g. less favourable treatment) does not include one for another type of disability discrimination (e.g. alleged failure to make reasonable adjustments), and the EAT refused to allow an amendment to add what would be a different and additional cause of action. Simply because a claim(s) at Tribunal contained discrimination claims does not mean that any application to amend to add new claims of disability discrimination can be categorised as other than new claims requiring new facts to be pled if that is what they are.

• Lewis v Blue Arrow Care Ltd. (

EAT/0694/99

) confirmed that seeking (in that case, out of time), to add victimisation to a claim for another type of discrimination claim (e.g. direct discrimination) is an application to make an entirely new claim.

• Smith v Zeneca (Agrochemicals) Ltd.

[2000] ICR 800

confirmed that a claim for e.g. direct discrimination on particular protected grounds is different to, and separate from, other types of such discrimination e.g. indirect and victimisation, and cannot be deemed to include the same. 8. (a) For any new claims not arising from facts already pled, the Tribunal must consider whether these are time-barred (the second question required to be answered by the Selkent analysis). Per paragraph [311.02] of Harvey: ‘Where the Claimant proposes to include any new claim by way of amendment, the Tribunal must have regard to the relevant time to grant leave to amend: Transport and General Workers Union v Safeway Stores Ltd.

UKEAT/0092/07

).’ (b) Per paragraph [312.05] of Harvey, even in these Category 3 cases an amendment may still be allowed out of time in exceptional circumstances. However, per Transport and General Workers Union v Safeway Stores Ltd. (

UKEAT/0092/07

[2007] All ER (D) 14

, the EAT confirmed that, when a Tribunal is considering exercising a discretion to allow an amendment which introduces a new clam, the greater the difference between the factual and legal issues raised by the proposed new claim and the original claim the less likely it is to be permitted (paragraph 13). 9. In Cocking v Sandhurst (Stationers) Ltd.

[1974] ICR 650

, Sir John Donaldson explained (at 656) that Tribunals considering amendment applications involving changing the basis of a claim should first determine whether the unamended claim complies with the Tribunal Rules which govern the presenting of claims. (Thus, for example, if a Claimant is relying on originating claims that were themselves time-barred, those could not be used as the basis for arguing that the same or related factual basis of the new claims sought to be introduced by way of amendment was already before the Tribunal in the originating pleadings). 10. Per paragraph [312.09] of Harvey, with reference to Gillett v Bridge 86 Ltd,

UKEAT/0051/17

(6 June 2017), a factor that may be taken into account when determining whether a new claim(s) should be allowed by way of amendment is an assessment of the merits of that new claim(s), and the Tribunal may refuse to allow the amendment if it considers the new claim(s) lack reasonable prospect of success. 11. In Ahuja v Inghams

[2002] EWCA Civ 192

, the Court of Appeal overturned a decision of the EAT, and found that the jurisdiction of the Tribunal was limited to hearing complaints of unlawful discrimination contained in the originating application, and that since those complaints had not been proven (and no amendment application had been made for other complaints to be added), the Tribunal did not have jurisdiction to find that other discrimination than was pled had taken place. Lord Justice Mummery comments (at paragraph 43) that the Tribunal had a wide and flexible jurisdiction to do justice, and he makes reference to the specific case of evidence coming out at a hearing differently from what was pled, in which case parties should not be discouraged only by it being at that stage from making an amendment application (or Tribunals from allowing this) in appropriate circumstances and where there was no prejudice to the Respondent. Neither this case, nor that comment, are applicable, however, in this instance: as an amendment application has been made, and as the circumstances are not the same. It does not, in any case, suggest that there being a wide and flexible jurisdiction is reason for either allowing or not allowing any particular amendment application, which must be individually assessed (although it was suggesting that this route might have been taken at an appropriate stage of that particular case). 12. In Mr A Chandhok, Mrs P Chandhok v Ms P Tirkey [2015]

UKEAT/0190/14/KN

at paragraph 16 the EAT observes that “The claim, as set out in the ETI, is not something just to set the ball rolling, as an initial document necessary to comply with time limits but which is otherwise free to be augmented by whatever the parties choose to add or subtract merely upon their say so. Instead it serves not only a useful but a necessary function . It sets out the essential case”. 13. In Ladbrokes Racing Ltd v Mr Lawrence Stephen Traynor [2007]

UKEATS/0067/07

at paragraph 40, in the context of amendment, the EAT emphasises the distinction between the Respondent knowing the facts and knowing that the Claimant is seeking to rely on those facts in his claim. B – Factual Position Nature of the proposed amendment 14. The Respondent’s position on this application is as set out in its email of 17 September 2018. The proposed amendments go extensively beyond the consolidation of the originating pleadings and seek to add new causes of action, which involve considerable new facts with a new legal basis of claims relative thereto. 15. As referred to in paragraph 7(d) above, with reference to paragraph [312.07] of Harvey and Housing Corp v Bryant

[1999] ICR 123

, CA, the question of whether the amendment amounts to a wholly new claim requires an examination of the case set out in the originating pleadings, against that of the proposed amendment, to see if there is sufficient causal link. In that case (as, it is submitted, in this): “the proposed amendment was not a rectification or expansion of the original claim, but an entirely new claim brought well out of time”, and the Court of Appeal accordingly re-instated the Tribunal’s Judgment rejecting the amendment. 16. In any event, however, whether these new causes of action are considered Category 3 or Category 2 amendments (or some Category 3 and others Category 2), the new pleadings are clearly and very extensively of the type that they would involve substantially different areas of inquiry than the old: and, since the greater the difference between the factual and legal issues raised by the new claim and the old, the less likely it will be permitted, it would accordingly be perverse (in the Respondent’s respectful submission) for these additional matters to be allowed to be added in this manner by way of amendment. 17. The Claimant’s originating pleadings do not contain a claim(s) for reasonable adjustments. Yet, the Claimant seeks to introduce a whole range of claims for alleged failure to make reasonable adjustments, which also require the pleading of new facts in support thereof. These are new claims and would also be time-barred. Categorisation of the proposed amendment 18. Comparison of the factual basis of the new matters (now sought to be included by way of amendment) clearly shows (in the Respondent’s respectful submission) that these are new causes of action not reflecting the same facts as are pled in the originating grounds of these claims. 19. These new causes of action raise new factual matters and do not arise from claims stated in the originating pleadings. The Claimant seeks to introduce a whole range of claims for alleged failure to make reasonable adjustments, with the pleading of new facts in support thereof – thus extending the field of inquiry for the claim (were these allowed) significantly. These are new claims and would also be timebarred. 20. In the Respondent’s submission, these are therefore, new matters going beyond the consolidation of existing claims, with a new factual and legal basis, and accordingly:

• Are in 3rd category as set out in Argyll & Clyde Health Board v Foulds [2006]

UKEAT/0009/06

, especially at paragraph 39 on page 13: namely, new causes of action involving considerable new facts pled.

• As referred to in paragraph 11(d) above, with reference to paragraph [312.07] of Harvey and Housing Corp v Bryant

[1999] ICR 123

, CA, looking at the question of whether the amendment amounts to a wholly new claim requires an examination of the case set out in the originating pleadings, against that of the proposed amendment, to see if there is sufficient causal link. In that case (and, it is submitted, in this): “the proposed amendment was not a rectification or expansion of the original claim, but an entirely new claim brought well out of time”. 21. Time-limits Per Paragraphs 12(a) & 12(b) above, the Tribunal must consider, for Category 3 proposed amendments, whether these new causes of action are time-barred (the second question required to be answered by the Selkent analysis). The Respondent’s submission is that they are severely time-barred, being raised more than 3 years after the termination of the Claimant’s employment on 24 September 2015, and in many cases referring to facts preceding that by some way. Per paragraph [311.02] of Harvey: ‘Where the Claimant proposes to include any new claim by way of amendment, the Tribunal must have regard to the relevant time to grant leave to amend: Transport and General Workers Union v Safeway Stores Ltd.

UKEAT/0092/07

).’ 22. Per paragraph [312.05] of Harvey, even in these Category 3 cases, an amendment may be allowed out of time in exceptional circumstances. However, per Transport and General Workers Union v Safeway Stores Ltd. (

UKEAT/0092/07

[2007] All ER (D) 14

, the EAT confirmed that, when a Tribunal is considering exercising a discretion to allow an amendment which introduces a new claim, the greater the difference between the factual and legal issues raised by the proposed new claim and the original claim the less likely it is to be permitted (paragraph 13). As the difference in this case is very extensive and substantial, it should not, in the Respondent’s submission, be allowed for these new causes of action. 23. If (in the alternative) the Tribunal considers that any new cause(s) of action may fall into category 2 (adding or substituting a new cause of action, but which arises out of the facts of an originating claim(s)), then in respect of any such cause of action, it is submitted that allowing the Claimant to amend to add these would not be justified by comparison with the facts set out in the original claim. Per paragraph [312.04] of Harvey, (with reference to Abercrombie v Aga Rangemaster Ltd

[2013] EWCA Civ 1148

), the key issue (or focus) is whether the new pleading are likely to involve substantially different areas of inquiry than the old: the greater the difference between the factual and legal issues raised by the new claim and the old, the less likely it will be permitted. 24. As such, whether these new causes of action are considered Category 3 or Category 2 amendments (or as some Category 3, and others Category 2), the new pleadings are in the Respondent’s submission clearly and very extensively of the type that they would involve substantially different areas of inquiry than the old: and, since the greater the difference between the factual and legal issues raised by the new claim and the old, the less likely it will be permitted, it would accordingly be perverse (in the Respondent’s respectful submission) for these additional matters to be allowed to be added in this manner by way of amendment. 25. However, the Respondent’s primary submission is that these are wholly or largely new claims, not arising from the facts in the originating pleadings, sought to be brought substantially out of time. The Respondent is entitled not only to clarity of the claims it faces and would have to answer at any hearing, but to finality of litigation. Conclusion 26. The balance of injustice in allowing the new causes of action to be allowed by way of amendment would be significantly against the Respondent, which would be seriously prejudiced in having to face this whole raft of new claims, in addition to the claims that do reflect the originating pleadings. It would have to investigate and respond to these new causes of action years after they occurred and over 3 years after the Claimant’s employment ceased. A number of the claims contained in the originating pleadings are themselves time-barred and cannot in any case be used as a basis for amendment. 27. By contrast, the Claimant would not be relatively prejudiced, as he would be able to pursue those claims which do reflect those of the originating pleadings in these claims which the Claimant seeks to pursue. He would simply be prevented from bringing in an additional raft of further matters. The balance of justice is thus significantly in favour of rejecting the amendment application and in the Respondent’s submission the application should accordingly be refused.

Conclusion

[48]In light of Ms Dalziel’s position, Mr Ettles stated that he did not depart from anything in his outline submission for the respondents. While some of it was not now necessary, on the basis of Ms Dalziel’s concessions, he had noted that the claimant’s solicitor accepts it is a new cause of action, and out of time, and that therefore there is an issue for the Tribunal whether it is just and equitable to grant an extension of time.

[49]In addition, Mr Ettles stated that he did not accept that what was given to the respondents was proper notice of a reasonable adjustments claim, as there was not sufficient specification given by the claimant. His claim was pled in such a way, stated Mr Ettles, that it was of no assistance to the respondents, as they could not understand the nature of his claim.

[50]He described the claimant’s pleadings, at that point, as being “in such a mess”, and that it was not the respondents’ responsibility to plead the case for the claimant, although maybe they could have sought further and better particulars of any claim they felt was totally lacking in specification. He added that the claimant’s use, in the 4106122 claim, of the words “reasonable adjustments”, does not amount to proper notice that it was a claim for failure to make reasonable adjustments.

[51]Further, added Mr Ettles, the claimant now accepts that the nature of this amendment is neither minor, not trivial, but significant, and it cannot be said to arise out of the same facts, and it seemed to him that even the claimant was now accepting that the respondents had not been given fair or proper notice of a reasonable adjustments claim.

[52]Next, referring to paragraph 8 of Ms Dalziel’s outline submissions for the claimant, Mr Ettles noted that she had referred to 25 August 2016 as being the last act of discrimination, but Mr Ettles stated that, assuming it was established that there was a continuing act, that last act must be 24 September 2015, the date of termination of the claimant’s employment.

[53]In that regard, Mr Ettles stated that 25 August 2016 is the date on which the claimant’s internal appeal against dismissal was concluded by the respondents, and as there is no alleged discrimination between dismissal and conclusion of the appeal, he argued that the relevant date is 24 September 2015, which adds about another 11 months on to the time delay.

[54]Referring then to paragraph 16 of the claimant’s outline submissions, saying that the claimant was without the benefit of legal representation, Mr Ettles stated that that was the claimant’s choice, when he has been represented by a trade union, and he chose to instruct solicitors after claims 1 and 2, and he was found liable to pay the respondents’ expenses in those earlier claims. He was not later averse to instructing solicitors on his behalf, and he could have done that for this “second batch” of claims against the respondents, submitted Mr Ettles.

[55]Further, added Mr Ettles, the claimant was clearly aware of the concept of reasonable adjustments, as he had mentioned it in his pleadings, at paragraph 4 of the claim 122. While he knew of the concept, and it could form the basis of a claim, Mr Ettles stated that you would have thought that might have alerted the claimant to take legal advice and get his claim properly inserted into his pleadings, but, given the lack of specification then, Mr Ettles submitted that it cannot be said that the respondents were on notice that the claimant believed reasonable adjustments had not been made by the respondents.

[56]Next, referring to paragraph 17 of the claimant’s outline submissions, Mr Ettles stated that the December 2015 amendment application by the claimant was of no relevance, as it was not proceeded with, and he added that he felt it was for the claimant to explain why it had not been proceeded with then, and that it is not for the respondents to enquire into it now. He further stated that it was “of little or no value if the claimant did not procced with it then”, although he accepted that the claimant had never expressly withdrawn that earlier amendment application.

[57]To clarify his position, Mr Ettles then stated that he was “not saying there is an ambush”, simply that there were now a series of claims that are very out of time, and that “using the words “reasonable adjustments” does not give the respondents fair notice” of claims to be made at any Hearing. He added that “it cannot be said that reasonable adjustments were on the respondents’ radar, for these last 2 years”, which is what he felt Ms Dalziel was arguing at her paragraph 17.

[58]Turning again to her submissions, Mr Ettles stated that he felt her paragraphs 16, 17 and 18 are not relevant matters to be taken into account, but he clarified that he did not go as far as to say the Tribunal should exclude them from its field of vision, but he did say the weight to be attached to these factors is “minimal.”

[59]Next, looking at Ms Dalziel’s paragraphs 19 and 20, Mr Ettles submitted that while the claimant’s solicitor argues there is very little prejudice to the respondents, he stated that that is not the case, as there is a “whole raft of new claims” for the respondents to investigate, and it is now over 3 years since termination of the claimant’s employment, and “so inevitably memories will have faded, and documents needed now may not be found”.

[60]By way of further submission, Mr Ettles stated that 3 of the respondents’ witnesses (whom he identified as Paul McGowan, Lynn Hughes and Jean Mulvenna, all ex HR employees) had all left the respondents’ employment, making investigations of them “difficult”, and that 2 of those 3 are the witnesses most likely to have to speak to these new claims.

[61]Further, Mr Ettles added, a Tribunal Hearing in these claims will be “understandably large”, and while he could see Ms Dalziel disagreed, he insisted that “the claims brought are not straightforward” with alleged failures to make reasonable adjustments, and that that head of complaint is now particularised in new pleadings for the claimant, where it was not before.

[62]As all 3 witnesses are ex-employees, Mr Ettles stated that they do not have access to files, and so as solicitor for the respondents, he will need to get them to focus on what happened many years ago, which would be “difficult”.

[63]While accepting, as per Ms Dalziel’s paragraph 21, the claimant will be prejudiced if the amendment is refused, Mr Ettles stated that the claimant could still pursue his other claims, whereas, if the amendment were to be allowed by the Tribunal, the respondents will lose the limitation issue that it relies upon to oppose the amendment being sought.

[64]Mr Ettles then referred to the Harvey extracts, on just and equitable extension, at paragraph [277.01], and submitted that the claimant has not really explained why his reasonable adjustments complaint was not brought within 3 months of termination of employment, and that now 3 years plus has passed.

[65]Looking at the Keeble factors, in British Coal Corporation v Keeble,

[1997] IRLR 336

, discussed at Harvey [279], Mr Ettles submitted that the claimant has not made out a good cause taking into account the Keeble factors (a) to (e), and he referred, in particular, to Harvey [279.01], and its reference to Miller v MoJ [2016]

UKEAT/0003/15

[66]Mr Ettles then submitted that it is “to some extent inevitable that there will be fading memories, and there could be other problems as well”. He submitted that the main “forensic prejudice” founded upon by him was fading memories, and he accepted that “access to documents may assist to an extent.”

[67]Referring to Harvey [279.05], Mr Ettles stated that the cause of the claimant’s failure to bring this type of claim earlier has “not been properly identified”

[68]It then being 11.31 am, Mr Ettles turned his attention to his own written outline submissions and commented that much of it had been superseded given the concessions made by Ms Dalziel for the claimant. That said, he referred me to his page 2, and the reference there to the Court of Appeal judgment in Abercrombie v Aga, in particular per Lord Justice Underhill at paragraph 48. He submitted that the new issues now pled by the claimant are “entirely different from what had been pled before”, and that should make the Tribunal “reluctant to allow the amendment.”

[69]When I asked him to comment on the very next paragraph of that judgment, at paragraph 49, where Lord Justice Underhill refers to “a legal bear-trap”, Mr Ettles replied stating that he was not convinced a failure by a claimant to present their claim properly means a bear-trap has been created, and that it is “simply a failure then to plead a case that has now been pled, ad pled with specification” by the claimant.

[70]Referring then to paragraph 5 of his own outline submission, and the reference there to the Selkent factor (5)(c), he posed the question “why now?”. He also commented that “it’s too early for the respondents to say that a reasonable adjustment claim has no force”, as that complaint is in the form of a proposed amendment, and so the respondents have not replied to it as yet.

[71]If the amendment is allowed, Mr Ettles then stated that the respondents seek time to reply to that particularisation by the claimant, but they do not accept that there is validity to his reasonable adjustments claim. He added that he felt a reply from the respondents might take time to investigate, where 2 of the main witnesses had left the respondents’ employment, and he sought a period of 4 weeks, or 6 weeks, if I was to allow the amendment there and then at that Hearing.

[72]While Ms Dalziel had suggested that if time-bar was not considered at this Hearing, then I should continue the just and equitable extension to the end of evidence at the Final Hearing, as per the EAT in Galilee, Mr Ettles stated that he could see no reason why I would want to do that and queried what evidence there would be to lead then.

[73]He further stated that matters were not in dispute, and the time-bar issue could be dealt with without evidence, unless the claimant was proposing to give evidence at this Hearing. In reply, Ms Dalziel confirmed that there would be no evidence on this point led at this Hearing, just her submissions on behalf of the claimant.

[74]Mr Ettles commented that the Galilee option was not appropriate in this case, where the facts and circumstances were different as regards an alleged continuing act, and he described the issues here as “more straightforward.”

[75]In concluding his submissions, Mr Ettles stated that it was not fair or just to allow the proposed amendment, and to do so would be contrary to the overriding objective, looking at it not being fair or just to the respondents to allow the amendment, with hardship and prejudice to them, if it were to be allowed by the Tribunal. Reply for the Claimant

[76]It then being 11.48am, I invited Ms Dalziel to reply to Mr Ettles’ objections. She did so saying that he had said he was not clear what evidence would be led at the Final Hearing to determine whether it was just and equitable to extend time.

[77]It seemed to her that would be appropriate, if I could not determine this factor at this Hearing, but the claimant says the respondents’ failure to make reasonable adjustments is part of a continuing act, and she saw that the last act was September 2016, and not the effective date of termination as argued by the respondents.

[78]She then described Galilee as her “backstop only” and accepted that the matter could go to the Final Hearing if I felt there was a difference between 2 &1/2 years late, and 3 years late.

[79]Ms Dalziel then referred to Harvey on just and equitable extensions, and the Keeble factors at paragraph [279] of Harvey. On factor (a), the length and reason for delay, she submitted that much of it was outwith the claimant’s control. He did what he thought was the right thing to do in April 2015, and he did not unduly delay.

[80]While there was an amendment application, in December 2015, and thereafter a delay, things did not progress as the cases were sisted for a longtime, related to the first 2 claims brought, and the claimant did not withdraw that December 2015 amendment application. Proceedings were sisted due to an order of the Tribunal.

[81]Next, as regards Keeble factor (e), steps taken by the claimant to get proper advice, matters were addressed by Ms Dalziel, without delay, after she was first instructed by the claimant.

[82]Turing then to “forensic prejudice” to the respondents, and Harvey at [279.01], Ms Dalziel noted how Mr Ettles had referred to 3 witnesses who would have fading memories, but as those witnesses had been inherently involved in Mr Gourlay’s case, she did not think that he would have readily escaped their memories, and as these witnesses are being called by the respondents to speak to other matters anyway, they will be aware that there is some litigation ongoing between the parties.

[83]Further, she added, the respondents clearly have not lost touch with their witnesses, as they had intimated that they would be attending the Final Haring as witnesses for them. As regards documents, she imagined that there will be documents held, and it is not likely that they will have ben disposed off over the last 3 years given the litigation ongoing between the parties, rather than future litigation contemplated. These combined claims were existing and known about by the respondents. Similarly, no issue had been raised by Mr Ettles about the location of witnesses being a concern.

[84]While Mr Ettles had submitted that he did not accept that reasonable adjustments claim were on the respondents’ radar for years, as she argued, she took issue with his position, as while they cannot have known the factual basis that underpins the reasonable adjustments claim, it is now well pled, and they will have until the Final Hearing in June 2019 “to get their house in order.” Reply for the Respondents

[85]It then being 12 noon, Mr Ettles made a brief reply, stating that Ms Dalziel had made much about matters outwith the claimant’s control, but he did not accept that point, as the claimant had sought legal advice at the outset, and he had sought legal advice on other matters, and so he is not blameless in that regard.

[86]Further, while she had stated that the claimant would not have escaped the memories of the respondents’ witnesses, he was sure they will, and he added that what concerns him is how much detail they will recall. He further stated that he does not accept that a reasonable adjustments claim was on the respondents’ radar, but it was different sorts of claims that were then on their radar, and not this matter. Reserved Judgment

[87]At the conclusion of this Preliminary Hearing, at 12:03pm, I thanked both parties’ representatives for their attendance and contribution and advised them that I was reserving Judgment to be issued in writing in due course, hopefully within around 4 weeks. I apologise for the delay in issuing my Judgment within that period, on account of the festive holiday closures, and other judicial business.

[88]While Mr Ettles had suggested I might wish to adjourn, and deliver an oral judgment, later that same day of this Preliminary Hearing, I indicated that I did not consider that appropriate, as there were many issues for me to carefully consider, arising from both parties’ agents’ oral and written submissions, and so I required time for private deliberation in chambers.

[89]Ms Dalziel stated that, if her amendment application were to be allowed, she accepted that the respondents needed to reply, and she added that 4 weeks seemed a perfectly reasonable period for the respondents to do so. Issue for the Tribunal

[90]The issue for determination by the Tribunal at this Preliminary Hearing was whether or not to allow the claimant’s opposed application to amend the consolidated ET1 claim form intimated by Ms Dalziel, on 10 September 2018, and, if so, to regulate further procedure. Relevant Law: Amendments

[91]In terms of Rule 29 of the Employment Tribunals Rules of Procedure 2013, the Tribunal may at any stage in the proceedings, on its own initiative or on the application of a party, make a Case Management Order. This includes an Order that a party is allowed to amend its particulars of claim or response. The usual starting point for consideration of any application to amend is the guidance given by the Employment Appeal Tribunal in the seminal case of Selkent.

[92]In many instances where there is an application to amend a claim form, it is done because a particular head of claim has not been fully explored or clarified in the initial claim. Harvey on Industrial Relations and Employment Law (“Harvey”) at section P1, paragraph 311.03 distinguishes between three categories of amendments: -(1) amendments which are merely designed to alter the basis of an existing claim, but without purporting to raise a new distinct head of complaint;

(2) amendments which add or substitute a new cause of action but one which is linked to, arises out of the same facts as, the original claim; and

(3) amendments which add or substitute a wholly new claim or cause of action which is not connected to the original claim at all.

[93]In Transport and General Workers Union v Safeway Stores Ltd

UKEAT/009/07

, Mr Justice Underhill, President of the Employment Appeal Tribunal, noted that although Rule 10(2) (q) of the then Employment Tribunal Rules of Procedure 2004 gave Tribunals a general discretion to allow the amendment of a claim form, it might be thought to be wrong in principle for that discretion to be used so as to allow a claimant to, in effect, get round any statutory limitation period. He went on to say that the position on the authorities however is that an Employment Tribunal has discretion in any case to allow an amendment which introduces a new claim out of time.

[94]In a detailed review of the case law, Mr Justice Underhill considered the appropriate conditions for allowing an amendment. In particular, he referred to the guidance of Mr Justice Mummery (as he then was) in Selkent Bus Company Ltd v Moore

[1996] IRLR 661

where he set out some guidance. I do not reproduce that guidance here, as Mr Ettles incorporated in his objections on behalf of the respondents, which I have reproduced above, earlier in these Reasons, to which I refer back for ease of reference.

[95]In that Safeway judgment, Mr Justice Underhill also referred to the judgment of the Court of Appeal in England and Wales in Ali v Office of National Statistics

[2005] IRLR 201

where Lord Justice Waller referred to Mr Justice Mummery’s guidance in Selkent, pointing out that, in some cases, the delay in bringing the amendment where the facts had been known for many months made it unjust to do so. He continued: “There will further be circumstances in which, although a new claim is technically being brought, it is so closely related to the claim already the subject of the originating application, that justice requires the amendment to be allowed, even though it is technically out of time.”

[96]Further, Mr Justice Underhill also considered the relevant extract from Harvey in relation to the threefold categorisation of proposed amendments. He referred to the fact that the discussion in Harvey points out that there is no difficulty about time-limits as regards categories 1 and 2, since one does not involve any new cause of action and while it may formally involve a new claim, it is in effect no more than “putting a new label on facts already pleaded”. He went on to clarify that the decision in Selkent is inconsistent with the proposition that in all cases which cannot be described as “relabelling” an out of time amendment must automatically be refused; even in such cases he stated that the Tribunal retains a discretion.

[97]A further authority that is of assistance to a Tribunal considering an amendment application is Ahuja v Inghams

[2002] EWCA Civ 192

. At paragraph 43 of the Court of Appeal’s judgment in Ahuja, Lord Justice Mummery stated that: "the tribunal has a very wide and flexible jurisdiction to do justice in the case, as appears from [old] Rule 11 of their regulations and they should not be discouraged in appropriate cases from allowing applicants to amend their applications, if the evidence comes out somewhat differently than was originally pleaded. If there is no injustice to the respondent in allowing such an amendment, then it would be appropriate for the Employment Tribunal to allow it rather than allow what might otherwise be a good claim to be defeated by the requirements that exist - for good reasons - for people to make clear what it is they are complaining about, so that the respondents know how to respond to it with both evidence and argument."

[98]Further, there is the Judgment of the Employment Appeal Tribunal in Chandhok –v- Tirkey

[2015] IRLR 195

, and in particular at paragraphs 16 to 18 of Mr Justice Langstaff’s Judgment in Chandhok, where the learned EAT President referred to the importance of the ET1 claim form setting out the essential case for a claimant, and that not being found not elsewhere, as otherwise a case proceeds on “shifting sands”, and that is not permissible.

[99]It is also appropriate for me to take into account earlier judicial guidance from Mr Justice Langstaff, then President of the Employment Appeal Tribunal in the unreported Judgment by him on 14 May 2014 in the Secretary of State for Health v Mrs K Vaseer & Others UK

EAT/0096/14

[100]At paragraph 3 of that Judgment, the learned President of the EAT stated as follows: - “Where an amendment is sought, it relates to the way in which a claim is presented to a Tribunal. In the course of the discussion before me it is plain both that Judge had to deal with a lot of assertions as to the facts of the case, which had yet to be established in evidence if ever they might be and asked to consider as if fact and as if part of “the case” that which had never actually been put in writing. It should not be thought that an ET1 or, for that matter an ET3 is simply a document there to set the ball rolling and that what really matters is in some way only hinted at in the words which are used. The document has a real purpose to fulfil, which should not be undervalued. It sets out the nature of the case so that a Respondent or, for that matter, the Claimant may understand the case of the other. It enables a Court of Appeal, the Tribunal in the first instance, to see essentially what is being alleged. It is particularly useful for advance preparation by a Judge and Tribunal Members. It helps the administration to know how long might be needed for the case so that it may make appropriate arrangements to ensure that justice is best done. It is right that Tribunals have a degree of informality which is not true of civil courts. That owes a lot to their historical origin. It makes them more amendable to litigants who have no legal experience and may be presenting their cases in person. For that reason it is important not to be so technical about the wording of an originating application as to lose sight of the context in which it necessarily will be set. A Judge or reader is entitled to have regard to context in so far as it is familiar or known to the parties, or must be known to the parties, in understanding what is alleged, but it is still the job of the document to make those allegations. The parties cannot expect the Tribunal or, for that matter, each other to understand that a case is being made which has not in fact been referred to in the document concerned or sufficiently indicated by that document albeit taken in context.”

[101]Having noted the Judgment of Mr Justice Langstaff in the Secretary of State for Health v Vaseer, as detailed above, it is also appropriate to have regard to further judicial guidance available to this Tribunal, this time from the Court of Appeal, on appeal from a Judgment of Mr Justice Langstaff at the Employment Appeal Tribunal, in the case of Patricia Davies v Sandwell Metropolitan Borough Council

[2013] IRLR 374

, where Lord Justice Mummery (himself a former President of the EAT), at paragraph 28 of the Court of Appeal’s Judgment, stated that :- “Employment Tribunals should use their wide ranging case management powers, both before and at a Hearing, to exclude what is irrelevant from the Hearing and to do what they can to prevent the parties from wasting time and money and from swamping the ET with documents and oral evidence that have no bearing, or only a marginal bearing, on the real issues.”

[102]Further, Lord Justice Mummery agreed, at that same paragraph 28, with the constructive comments of Lord Justice Lewison, set forth at paragraph 33 of the Davies Judgment from the Court of Appeal, where that learned Court of Appeal Judge stated that: - “If the parties have failed in their duty to assist the Tribunal to further the overriding objective, the ET must itself take a firm grip on the case. To do otherwise wastes public money; prevents other cases from being heard in a timely fashion, and is unfair to the parties in subjecting them to increased costs and, at least in the case of the employer, detracting from his primary concern, namely to run his business.”

[103]I also note the judicial guidance from Mrs Justice Slade DBE, sitting in judgment in the Employment Appeal Tribunal, on 20 March 2012, in Fairbank v Care Management Group and Evans v Svenska Handelsbanken AB (PUBL) UKEAT/0139-141/12.

[104]As Mrs Justice Slade DBE, sitting alone, held in that EAT judgment, parties need to specify the claims they are making: Chapman v Simon

[1994] IRLR 124

. Without being prescriptive, at paragraph 13 of her judgment, she stated that the essentials to be pleaded are likely to be: (1) the legal basis of the claim;(2) what the act or omission complained of was;(3) who carried out the act; (4) when the act or omission complained of occurred; (5) why complaint is made of the act/omission; (6) anything affecting remedy.

[105]Further, at paragraphs 15 and 16, the learned EAT Judge held that it is an error of law / perverse for an Employment Judge to limit what there is in an ET1, but if some paragraphs set out irrelevant matters etc. there could be an application to strike out the offending paragraphs. Further, she held, at the end of a Hearing questions of costs may arise if the ET1 or ET3 is unreasonably prolix leading to waste of costs.

[106]She also identified (at paragraph 19) that the appropriate way of dealing with prolix pleadings is by identifying issues at a Case Management Discussion, as they were then known, now Case Management PH, (see Lord Justice Mummery in Commissioner of Police of the Metropolis v Hendricks

[2003] ICR 530

, at paras 53 & 54), and (at paragraph 23) that issues must not be over elaborate or numerous (see Mummery LJ in St Christopher’s Fellowship v Walters-Ennis

[2010] EWCA Civ 921

[107]Also, of assistance to a Tribunal considering any amendment, there is the Court of Appeal’s Judgment in Abercrombie & Others v Aga Rangemaster Ltd

[2013] EWCA Civ 1148

;

[2013] IRLR 953

, and in particular, the Judgment of Lord Justice Underhill, at paragraphs 42 to 57. As Lord Justice Underhill pointed out in Abercrombie, at paragraph 47, the Selkent factors are neither intended to be exhaustive nor should they be approached in a tick-box fashion. There is nothing in the Rules or the caselaw to say that an amendment to substitute a new cause of action is impermissible.

[108]Further, at paragraphs 48 and 49 of the Abercrombie judgment, Lord Justice Underhill went to say as follows: - 48.Consistently with that way of putting it, the approach of both the EAT and this Court in considering applications to amend which arguably raise new causes of action has been to focus not on questions of formal classification but on the extent to which the new pleading is likely to involve substantially different areas of enquiry than the old: the greater the difference between the factual and legal issues raised by the new claim and by the old, the less likely it is that it will be permitted. It is thus well recognised that in cases where the effect of a proposed amendment is simply to put a different legal label on facts which are already pleaded permission will normally be granted: see the discussion in Harvey on Industrial Relations and Employment Law para. 312.01-03. We were referred by way of example to my decision in Transport and General Workers Union v Safeway Stores Ltd (

UKEAT/0092/07

), in which the claimants were permitted to add a claim by a trade union for breach of the collective consultation obligations under section 189 of the Trade Union and Labour Relations (Consolidation) Act 1992 to what had been pleaded only as a claim for unfair dismissal by individual employees. (That case in fact probably went beyond "mere re- labelling" – as do others which are indeed more authoritative examples, such as British Printing Corporation (North) Ltd v Kelly (above), where this Court permitted an amendment to substitute a claim for unfair dismissal for a claim initially pleaded as a claim for redundancy payments.) 49. It is hard to conceive a purer example of "mere re-labelling" than the present case. Not only the facts but the legal basis of the claim are identical as between the original pleading and the amendment: the only difference is, as I have already said, the use of the section 34 gateway rather than that under section 23. In my view this factor should have weighed very heavily in favour of permission to amend being granted. As the present case only too clearly illustrates, some areas of employment law can, however regrettably, involve real complication, both procedural and substantial; and even the most wary can on occasion stumble into a legal bear-trap. Where an amendment would enable a party to get out of the trap and enable the real issues between the parties to be determined, I would expect permission only to be refused for weighty reasons – most obviously that the amendment would for some particular reason cause unfair prejudice to the other party. There is no question of that in the present case.

[109]As is evident from the observations of Mr Justice Mummery, as he then was, in Selkent, in the case of the exercise of discretion for applications to amend, a Tribunal should take into account all the circumstances and balance the injustice and hardship of allowing the amendment against the injustice and hardship of refusing it. Factors to be taken into consideration include the nature of the amendment, so that for example an amendment which changed the basis of an existing claim will be more difficult to justify than an amendment which essentially places a new label on already pleaded facts; the question whether the claim is out of time and if so, whether time should be extended under the applicable statutory provision; and the extent of any delay and the reasons for it.

[110]Further, despite it being unreported, there is also Lady Smith’s EAT judgment in the Scottish appeal of Ladbrokes Racing Ltd v Traynor [2007]

UKEATS/0067/07

. It is detailed in chapter 8 of the IDS Handbook on Employment Tribunal Practice and Procedure, at section 8.50. At paragraph 20 of her judgment, Lady Smith, as well as noting the Selkent principles, stated as follows: “When considering an application for leave to amend a claim, an Employment Tribunal requires to balance the injustice and hardship of allowing the amendment against the injustice and hardship of refusing. That involves it considering at least the nature and terms of the amendment proposed, the applicability of any time limits and the timing and the manner of the application. The latter will involve it considering the reason why the application is made at the stage that it is made and why it was not made earlier. It also requires to consider whether, if the amendment is allowed, delay will ensue and whether there are likely to be additional costs whether because of the delay or because of the extent to which the hearing will be lengthened if the new issue is allowed to be raised, particularly if they are unlikely to be recovered by the party who incurs them. Delay may, of course, in an individual case have put a respondent in a position where evidence relevant to the new issue is no longer available or is of lesser quality than it would have been earlier.”

[111]Further, there is also the unreported judgment of the EAT President, Mr Justice Langstaff, in Thomson v East Dunbartonshire Council & Another [2014]

UKEATS/0049/13

, where some 5 months after filing an ET1, the claimant sought to amend his existing claim to add a complaint of dismissal, arguing that it was intrinsic to his existing claim, and arose out of the same facts. An Employment Judge refused the amendment, on the basis of the principles in Selkent, and the claimant argued that the discretion was flawed in law, in part because the Judge had applied a “balance of prejudice” test whereas referred in Selkent there was reference to balancing “injustice and hardship”,

[112]The EAT President, in Thomson, held that the Employment Judge had directed himself appropriately, and he did not take into account any irrelevant factor or leave out of account any relevant factor. There was meaningful difference between “prejudice” on the one hand and “injustice and hardship” on the other. In dismissing the claimant’s appeal in that case, Mr Justice Langstaff stated, at paragraph 13 of the EAT judgment, that: “… It seems to me that the balance of prejudice, essentially, is intended to convey the same concept. It may perhaps be helpful to return to the words used by Mummery J in future considerations of a case such as this, though frequently “balance of prejudice” is the lawyers’ shorthand for the necessary exercise, purely because it may focus more closely on the two separate questions: injustice on the one hand, hardship on the other. But balance of prejudice is capable of including matters which might not strictly be described as unjust or hard but may nonetheless be relevant. All the circumstances have of course to be taken into account. I do not see using this phrase as an error of law in the Judge’s approach. In my view, he correctly approached the exercise of his discretion. “ Relevant Law; Time Bar

[113]Section 123(1) of the Equality Act 2010 governs the time limit for the making of discrimination claims to the Employment Tribunal: “(1) Proceedings on a complaint within section 120 may not be brought after the end of -(a) the period of 3 months starting with the date of the act to which the complaint relates, or

(b) such other period as the employment tribunal thinks just and equitable.”

[114]Then Section 123 (3) provides, so far as material for present purposes, as follows: “(3) For the purposes of this section – (a) conduct extending over a period is to be treated as done at the end of the period;”

[115]In considering whether it is just and equitable to extend time the Tribunal should have regard to the fact that the time limits are relatively short. Robertson v Bexley Community Centre (t/a Leisure Link)

[2003] IRLR 434

is commonly cited as authority for the proposition that exercise of the discretion to apply a longer time limit than three months is the exception rather than the rule.

[116]In Chief Constable of Lincolnshire Police v Caston

[2010] IRLR 327

Lord Justice Auld noted that the comments in Robertson were not to be read as encouraging Tribunals to exercise their discretion in a liberal or restrictive manner. The Tribunal should take all relevant circumstances into account and consider the balance of prejudice of allowing or refusing the extension.

[117]The Tribunal may, where appropriate, gain assistance by looking at the factors applied in personal injury actions, see British Coal Corporation v Keeble

[1997] IRLR 336

. The Tribunal may wish to consider the length and reason for the delay, the extent to which the cogency of the evidence is likely to effected by the delay, the extent to which the parties pursued has cooperated with any request for information, the promptness with which the claimant acted once he or she knew of the facts giving rise to the cause of action and the steps taken by the claimant to obtain appropriate professional advice.

[118]The fact that an employee is pursuing an internal grievance or other procedures is a factor that may be taken into account in determining whether time should be extended: Apelogun-Gabriels v Lambeth London BC

[2002] ICR 713

. In the present case, after being dismissed from the respondents’ employment, the claimant pursued an internal right of appeal against dismissal which was, after a delay caused by many hearings before elected councilors of the respondents, rejected.

[119]When a claim is brought out of time and the Employment Tribunal is considering whether it is just and equitable to extend time, the relevant principles are as set out by the EAT in British Coal Corporation v Keeble

[1997] IRLR 336

EAT: “8. … It requires the court to consider the prejudice which each party would suffer as the result of the decision to be made and also to have regard to all the circumstances of the case and in particular, inter alia, to –(a) the length of and reasons for the delay;

(b) the extent to which the cogency of the evidence is likely to be affected by the delay;

(d) the promptness with which the plaintiff acted once he or she knew of the facts giving rise to the cause of action;

(e) the steps taken by the plaintiff to obtain appropriate professional advice once he or she knew of the possibility of taking action.”

[120]However, as per Mr Justice Langstaff, then President of the EAT, in Abertawe Bro Morgannwg University Local Health Board v Morgan

UKEAT/0305/13/LA

, those principles are to be read as guidance and not a statement of statutory requirements. It has, further, been held to be necessary for Tribunals, when considering the exercise of such a discretion, to identify the cause of the claimant’s failure to bring the claim in time; see Accurist Watches Ltd v Wadher

UKEAT/0102/09

, and Morgan, where the EAT ruled: “52. Though there is no principle of law which dictates how sparingly or generously the power to enlarge time is to be exercised (see Chief Constable of Lincolnshire Police v Caston

[2009] EWCA Civ 1298

at para 25, per Sedley LJ) a tribunal cannot hear a complaint unless the applicant convinces it that it is just and equitable to do so, and the exercise of discretion is therefore the exception rather than the rule (per Auld LJ in Robertson v Bexley Community Centre

[2003] IRLR 434

CA). A litigant can hardly hope to satisfy this burden unless he provides an answer to two questions, as part of the entirety of the circumstances which the tribunal must consider. The first question in deciding whether to extend time is why it is that the primary time limit has not been met; and insofar as it is distinct the second is reason why after the expiry of the primary time limit the claim was not brought sooner than it was.”

[121]On the matter of time-bar, as the Employment Appeal Tribunal recognised in Miller and others v Ministry of Justice [2016]

UKEAT/003/15

, per Mrs Justice Elisabeth Laing DBE, at paragraph 12: “…. There are two types of prejudice which a Respondent may suffer if the limitation period is extended. They are the obvious prejudice of having to meet a claim which would otherwise have been defeated by a limitation defence, and the forensic prejudice which a Respondent may suffer if the limitation period is extended by many months or years, which is caused by such things as fading memories, loss of documents, and losing touch with witnesses… “ Discussion and Deliberation

[122]Mr Ettles, solicitor for the respondents, argued strongly against allowing the amendment sought by Ms Dalziel, for the claimant, while the latter argued with equal strength of conviction that the proposed amendment should be allowed, to properly address all relevant matters, in a way that the claimant was better specifying his reasonable adjustments case against the respondents in greater detail.

[123]In considering, in the present case, whether it is appropriate to allow the amendment, I have considered the Selkent principles, as well as the more recent case law authorities referred to earlier in these Reasons, and I have to take into account not just the interests of the claimant but also those of the respondents. So too have I considered the matter of time-bar, as also hardship and injustice to both parties in allowing or refusing the amendment, as also the wider interests of justice in terms of the Tribunal’s overriding objective to deal with the case fairly and justly.

[124]Having considered parties' oral and written submissions, and having considered this matter most carefully, and also my own obligations under Rule 2 of the Employment Tribunals Rules of Procedure 2013, I consider that it is in the interests of justice and in accordance with the Tribunal’s overriding objective to allow this amendment of the consolidated ET1 claim form.

[125]Further, I am satisfied that it is in the interests of justice, and in accordance with the Tribunal’s overriding objective, to allow this amendment, and further being satisfied that it is just and equitable to extend time, under Section 123(1) (b) of the Equality Act 2010, to allow the claimant to bring this new cause of action, in respect of the respondents’ alleged failure to make reasonable adjustments, contrary to Section 20 of the Equality Act 2010.

[126]I accept Mr Ettles’ point that the relevant date should run from 24 September 2015, being the effective date of termination of employment, and not 25 August 2016, the date of the respondents’ refusal of the claimant’s internal appeal against dismissal. The claimant ceased to be an employee of the respondents on the former date, and so he could not have been the subject of any failure by the respondents to make reasonable adjustments after his employment had been terminated by them.

[127]An amendment can be proposed at any time in the course of a claim before the Tribunal, and the applicability of time-limits only relates to the situation where a new complaint or cause of action is proposed to be added by way of amendment. Ms Dalziel has conceded here that the amendment proposed by her, on behalf of the claimant, is category 3, being a wholly new head of claim, rather than category 2 seeking to add to an existing claim, linked to and arising out of the same facts as the original claim.

[128]I have considered the timing and manner of the application to amend. It is, of course, correct to say that a significant amount of time has elapsed between the claims having been lodged and the application to amend being made.

[129]Further, this is a third application to amend, the first amendment, intimated in December 2015, by the claimant, when acting on his own behalf, not progressing, due to sist of the Tribunal proceedings, while the second amendment submitted, via Mr Booth, in October 2017, was ultimately withdrawn, when the claimant withdrew his instructions for Mr Booth to act on his behalf, and the claimant then secured new legal representation through Ms Dalziel.

[130]Ms Dalziel, in her oral and written submissions, has provided me with a cogent explanation for why she feels it necessary for the claim to be amended, to bring in the reasonable adjustments claim, and in so doing she has addressed the delay in lodging this application to amend.

[131]However, as is made clear in Selkent, an application to amend should not be refused solely because there has been a delay in making it, and there are no time limits for considering an application to amend. Of paramount consideration is a relative injustice or hardship involved in refusing or granting the application.

[132]While there has been delay between the issue of the proceedings and the lodging of this application to amend, a significant factor in considering the timing of the application is that this litigation is not yet at a stage where a Final Hearing has started. On that basis, I consider that it is unlikely that the respondents will be seriously prejudiced because of the timing of this application.

[133]I recognise, of course, there has been some prejudice to the respondents to date in that they have had to deal with this on-going litigation, where the pleadings have been set since 24 April 2015, when the first of these 4 combined claims was presented to the Tribunal, but I think it also relevant that, for much of that period, proceedings have been sisted, on account of the then ongoing proceedings addressed by the Gall Tribunal.

[134]While Mr Ettles spoke of the respondents being unsure about the factual and legal basis of the reasonable adjustments head of claim, the respondents have, to date, taken no pro-active steps to seek to clarify matters via the Tribunal. He sought to explain that that was because this was a proposed amendment, and so was not part of the pleadings. That is a very technical approach, rather than pragmatic.

[135]However, I do not criticise him for not having done so, because these cases have been a complex and interweaved set of claims, running back some 4 plus years now, involving not just these 4 combined claims, but the earlier first and second claims, disposed of by Employment Judge Gall’s Tribunal, which resulted in proceedings in these combined claims being sisted, while the respondents progressed the claimant’s internal appeal against dismissal, and later sisted as there was an appeal to the EAT against the Gall Tribunal’s Judgment, although that appeal was later withdrawn by the claimant.

[136]Further, sist of these proceedings continued thereafter, as Judge Gall’s Tribunal dealt with and disposed of an expenses application by the respondents against the claimant. There was then earlier Preliminary and Expenses Hearing before this Tribunal in connection with these present Tribunal proceedings, all of which has taken time to progress.

[137]I recognise that it has taken a considerable amount of time and procedure to reach the stage that the parties are now at. If anything, however, allowance of the amendment makes the claimants’ position clearer, and this, it would be reasonable to anticipate, should serve to prevent further unnecessary procedure. Further, any prejudice to the respondents is, in my view, offset, in that if the amendment is allowed, as I have decided it shall be, the respondents are not being asked to face a wholly new head of claim of which they have no prior knowledge.

[138]Further, the amendment having now been allowed by me, the respondents retain the right to defend the claim as amended in its entirety. I do not accept that it can be held that there has been an element of surprise in this further head of claim as far as the respondents are concerned – their radar should have detected the reasonable adjustments claim as an incoming item long ago, and they should have sought to take steps to deal with it as a likely further addition to the existing claims.

[139]Nor do I accept that this is a “raft of new claims”, not that it will “prolong the hearing in this case significantly”, as per Mr Ettles’ objections of 17 September 2018.

[140]A reasonable adjustments claim has been there, lurking about in the backgrounds, for a number of years, since the claimant first sought to amend in December 2015.

[141]His application to amend, dated 21 December 2015, in claim 4106155/15, was made to amend that ET1, superceding the ET1 previously submitted on 12 April 2015. He added some details of a Section 20, failure to make reasonable adjustments claim, to which Gavin Walsh, then the respondents’ solicitor on record, intimated objections on 29 December 2015.

[142]On 5 January 2016, I instructed that no arrangements would be made meantime to list the opposed amendment application for a Preliminary Hearing, as his cases 1 and 2 were still ongoing before EJ Gall’s Tribunal, and the claimant’s internal appeal against dismissal was to be considered by the respondents.

[143]Both parties were instructed to update the Tribunal, when the internal appeal outcome was intimated, and, at that stage, to advise the Tribunal of what further procedure was being proposed by them. The sist I put in place remained in place, and claims 3 and 4, being 122 and 137/15, were sisted, pending the outcome of the then EAT appeal in claims 1 and 2. That December 2015 amendment application by the claimant was never withdrawn, nor was it ever adjudicated upon by the Tribunal. Equally, the respondents took no steps to recall the sist, and seek to progress their objections to that amendment.

[144]I have considered all the relevant factors and balanced the injustice and hardship to the claimant in refusing the application, against the injustice and hardship to the respondents in allowing the application. I have done so having regard to the whole procedural history to these Tribunal proceedings.

[145]This is not a case where there has been an inordinate and inexcusable delay on the part of the claimant or the representatives acting for him in progressing his claims.

[146]For a substantial period, these four combined claims were sisted, as regards further procedure, by order of this Tribunal, because of the two earlier claims brought by the claimant against the respondents and determined by the Gall Tribunal.

[147]Against such a background, which is clearly a relevant factor for me to take into account, I cannot find that such delay results in prejudicial unfairness to the respondents.

[148]In my view, this amendment should have been refused only if I was satisfied that there is at least a substantial risk that justice cannot be done, or, to put it another way, that a fair trial cannot occur, if the amended proceedings are allowed to continue.

[149]In these Tribunal proceedings, I am satisfied that, with the amended consolidated claim, and the respondents’ response to come, the issues in dispute will be clarified, and a fair trial remains possible in a realistic sense, as justice requires a determination of the issues at stake even if some unfairness which the respondents anticipate as a possibility may find it difficult to remedy has entered the process.

[150]Justice between the parties is still possible, and the issues between them, in these combined claims, can still be adjudicated upon fairly by the Tribunal at the Final Hearing assigned for 16 days in June 2019.

[151]While, in his oral submissions, Mr Ettles, solicitor for the respondents, made much of “forensic prejudice”, he did not identify that any specific evidence had been lost over time, nor any specific prejudice. A delay of the length that has occurred in this case will inevitably create difficulties for all parties to a litigation.

[152]In many cases, after a passage of time, witnesses may be difficult to trace, but that is not put forward by Mr Ettles as a factor in these cases. Further, it is well recognised that any witnesses’ memory may have faded with the passage of time and become unreliable. To the extent that these difficulties affect the presentation of the respondents’ defence, I accept that they may introduce an element of unfairness into the proceedings. Despite this, I am not persuaded that the circumstances of this case are such that there is a substantial risk that justice cannot be done.

[153]Mr Ettles raised with me only possibilities, not probabilities, or certainty of known disadvantages to the respondents, by way of the banner of “forensic prejudice”. While some of his witnesses have left the respondents’ employment, he has been able to contact them about their availability, and presumably precognosce them. He confirmed to me that they are all still alive, and he did not indicate that any had moved away, so as to make their location a difficulty in terms of them attending to give evidence at the Final Hearing.

[154]Although there may still be difficulties in fading memories, that impacts as much on the claimant as on the respondents’ witnesses, and I agree with Ms Dalziel that the claimant is a memorable individual, and given many Council officers have given evidence before the Gall Tribunal, including some of those to be led on the respondents’ behalf in this forthcoming Final Hearing, I do not foresee that being a significant problem for the respondents.

[155]While there is always a possibility, in any large organisation, that papers may be lost, or perhaps even destroyed, after a passage of time, no specific issue was flagged up by Mr Ettles, and I agree with Ms Dalziel that, given the ongoing Tribunal litigation before the Gall Tribunal, and these further, sisted claims, the respondents, as a public authority, with specific legal duties as regards document storage and retention, are not likely to have disposed of papers that are relevant and necessary for a fair hearing of these claims.

[156]Officers of the Council, whether still serving or now former employees of the respondents, can be given access to documents that will be in the Joint Bundle prepared for the merits hearing at Final Hearing, and so could refresh their memories from contemporary personnel records made by them years ago relating to the claimant.

[157]The factual issues likely to be canvassed at the Final Hearing are in narrow compass, and assessment of the credibility and reliability of witnesses does not appear to me to be an unduly difficult task for the full Tribunal which will take that merits hearing. It is an everyday part of the job that any Tribunal performs sitting as an industrial jury.

[158]Given that the respondents have been on notice of the proposed amended claim from 10 September 2018, at latest, I do not believe that they are prejudiced in any meaningful way by including the amended parts of the claim or that there is any question of hardship to the respondents. The respondents are simply going to have to address another aspect of a claim which has already been indicated to them, but that is unfortunately a fact of life in industrial relations claims.

[159]In my view, there would undoubtedly be a greater hardship to the claimant if he was unable to pursue the full extent of his claim as amended, and I consider that the potential injustice to him in refusing the amendment, in full, is greater than a potential injustice to the employer if this matter is allowed to continue with the claim as amended.

[160]The claim, as now amended, is still closely related to the claim originally lodged, and, in my view, the amendment allows the issues in dispute to be better focussed, and looking at the Final Hearing before the Tribunal, on dates now assigned, both parties will be on an equal footing in that all relevant information has been disclosed so as to allow preparation for a Final Hearing to progress on the basis that all the claimant’s cards are now on the table.

[161]The amendment will, in my view, have little impact on the cogency of the evidence to be heard at a Final Hearing as a result of the delay in applying to make this amendment, and the Final Hearing can proceed to be listed, for the 16 days mutually agreed and identified at this Preliminary Hearing, and it is likely to proceed with the same number of witnesses as originally envisaged.

[162]Further, in my view, the amendment does not seek to change the basic argument that the claimant submits that he was the subject of an unfair dismissal by the respondents, as also the subject of unlawful discrimination on grounds of his disability, but it does helpfully provide clarity around the alleged acts and omissions of the employer and its staff named by the claimant, which allegations the claimant is offering to prove.

[163]Finally, this amendment as allowed does not affect the ability of the Employment Tribunal to conduct a fair hearing of the case, on the dates now assigned by the Tribunal for the Final Hearing. In all of these circumstances, I have decided to allow the amendment sought by the claimant. I have so ordered at paragraph (1) of my Judgment. Further Procedure

[164]Further, having allowed this amendment for the claimant, I have decided that it is likewise in the interests of justice to allow the respondents an opportunity to lodge further and better particulars with the Tribunal on their own behalf, if so advised.

[165]Any such further and better particulars should seek to answer the claimant's amended paragraphs of the conjoined paper apart to the ET1 claim form, so as to fully specify the respondents’ grounds of resistance to that amended part of the claim, and so augment the grounds of resistance originally set forth in their consolidated ET3 response form presented on 20 September 2018.

[166]As discussed with parties’ representatives, at this Preliminary Hearing, when Mr Ettles sought 6 weeks, if I orally allowed the amendment there and then, to take account of the forthcoming festive holiday period, or 4 weeks otherwise, and Ms Dalziel not objecting to 4 weeks, I consider that 4 weeks is a fair and reasonable period of time from date of issue of this Judgment for Mr Ettles to arrange for lodging any such further and better particulars for the respondents. I have so ordered at paragraph (2) of my Judgment.

[167]Finally, at paragraph (3) of my Judgment, I have ordered that combined claim and response, as so amended, shall proceed to the listed 16-day Final Hearing, before a full Tribunal panel, at the Glasgow Tribunal office, on the dates mutually agreed and assigned by the Tribunal at this Preliminary Hearing.

[168]Neither party’s representative suggested, at the close of this Preliminary Hearing, that there should be a further Case Management Preliminary Hearing, arranged before the start of the now listed Final Hearing. I have not so ordered, as I consider that unnecessary.

[169]It seems to me that the case has been case managed at the last Case Management Preliminary Hearing, on 29 October 2018, in my supplementary Note and Orders of 5 December 2018, and at this Preliminary Hearing, followed up by my further Note and Orders dated 24 December 2088, but, of course, I recognise that in any case, things can emerge, where a further Case Management Preliminary Hearing might be appropriate.

[170]Accordingly, should any other matters arise between now and the start of the Final Hearing, on Monday, 3 June 2019, then written case management application by either party’s representative should be intimated, in the normal way to the Tribunal, by e-mail, with copy to the other party’s representative, sent at the same time, and evidencing compliance with Rule 92, for comment / objection within seven days.

[171]Dependent upon subject matter, and any objection / comment by the other party’s representative, any such case management application may be dealt with on paper by me as the allocated Employment Judge, or a Case Management Preliminary Hearing fixed, either in person, or by telephone conference call, as might be most appropriate. Closing Remarks

[172]The case is now listed for Final Hearing. On 11 January 2019, the claimant’s solicitor, Ms Dalziel, indicated to the Tribunal, with copy sent to Mr Ettles for the respondents, that the claimant is interested in exploring Judicial Mediation as an alternative dispute resolution.

[173]However, on 25 January 2019, Mr Ettles advised the Tribunal, with copy to Ms Dalziel, that the respondents are nor interested in exploring Judicial Mediation. No specific reason is given by the respondents’ solicitor.

[174]In issuing this Judgment, I remind both parties that, as per Rule 3 of the Employment Tribunals Rules of Procedure 2013: Alternative dispute resolution 3. A Tribunal shall wherever practicable and appropriate encourage the use by the parties of the services of ACAS, judicial or other mediation, or other means of resolving their disputes by agreement.

[175]I encourage both parties to use ACAS, or Judicial Mediation, as a means of resolving their disputes by agreement. As against the prospect of a 16-day Final Hearing, and the time and costs for the claimant, a disabled person, and the time and costs that will be associated with that Hearing for the respondents as a public authority, the respondents may wish to reflect again on Judicial Mediation.

[176]Any application, which requires approval by the Vice President, would be supported by me, as the cases clearly fall within the parameters of cases suitable for Judicial Mediation. Given the Final Hearing is now listed, any joint request for Judicial Mediation should be made at the earliest opportunity.

Relevant Law

[177]Although a dismissal for gross misconduct will often fall within the range of reasonable responses, this is not invariably so, as was made clear by the Employment Appeal Tribunal in Brito-Babapulle v Ealing Hospital NHS Trust

[2013] IRLR 854

, upheld by the Court of Appeal at

[2014] EWCA Civ 1626

. The test for unfair dismissal requires consideration of whether the employer acted reasonably in the circumstances, under Section 98(4) of ERA, so a Tribunal should give consideration to whether any mitigating factors render the dismissal unfair, notwithstanding the gross misconduct, and such factors might include, amongst others, an employee’s long service, general work record, work experience, position, and any previous unblemished disciplinary record.

[178]In his submissions to the Tribunal, Mr Ettles, the respondents’ solicitor, at paragraph 4.47, stated that: “I invite members to carefully look at all the statements of the Respondent made about colleagues which led to his dismissal. It is submitted that the Respondent’s decision to dismiss is one which, in the circumstances, clearly falls well within the band of reasonable responses test that you all will be familiar with. (See Iceland Frozen Foods -v- Jones

[1982] IRLR439

and Tayeh -v- Barchester Healthcare Ltd

[2013] IRLR387

). Given the nature of the Claimant’s continued attacks on his colleagues, and the lack of any significant mitigation, it was open to a reasonable employer to dismiss the Claimant summarily. Indeed given the seriousness of the behaviour notwithstanding instructions to stop and the lack of acknowledgement that his behaviour was unacceptable I would question whether any employer would come to a different decision.”

[179]Mr Burnett, in the minority, considers that summary dismissal was appropriate in all the circumstances of the present case. The claimant’s behaviour at work has escalated to unacceptable levels in the eyes of the respondents’ management, and despite Angela Wilson’s “warnings” to the claimant about his language and correspondence with colleague officers of the Council, the claimant’s behaviour had not modified, and rather than abating, it had escalated to what were seen as “attacks” on colleague officers.

[180]The majority of the Tribunal, being the Employment Judge and Mr O’Hagan, considered that the respondents did not take into account all of the circumstances of the case, as they had pursued the disciplinary process against the claimant without allowing his grievances to be concluded and determined first, and their disciplinary investigation was not complete and thorough. In their view, it was not reasonable for the respondents to consider that the claimant was guilty of gross misconduct, i.e., conduct that could justify his summary dismissal. Even if there was gross misconduct, which the majority do not accept was the case relating to the claimant’s conduct complained of by the respondents, the majority consider that the decision to dismiss the claimant, in all the circumstances of this case, and taking account of the size and administrative resources of the respondents, equity and the merits of the case, was unreasonable, and fell outwith the range of reasonable responses open to a reasonable employer.

[181]Further, the respondents had not sat down formally with the claimant, in a structured 1:1 interview with an appropriate senior officer of the Council, to see why it was that he was behaving as he was, and what they might be able to do, through the grievance and D@W procedures to address his concerns about how he was being treated by the respondents, and HR in particular, and to bring to his attention appropriate standards of behaviour under the Employee Code of Conduct, and likely consequences if he failed to act within the Code of Conduct.

[182]While Mr Burnett, in the minority, regarded Angela Wilson’s letters to the claimant as a “warning”, and the respondents’ dismissal letter refers to the claimant’s “serious insubordination” in failing to comply with a reasonable management instruction, the majority of the Tribunal does not regard Mrs Wilson’s letter as giving a reasonable management order, or instruction, as the claimant is requested to act appropriately. Further, the majority is not satisfied that the respondents took proper account of all relevant matters, in particular those prayed in aid in issue (23), which we deal with next. 23. Was and should the Respondent have taken account of: (a) His disability – including his psychological state and the exacerbating effect of his physical conditions;

[183]The respondents have accepted that the claimant is a disabled person in respect of his MS, but that relates to his physical rather than mental condition. While there was some evidence before us that the claimant was diagnosed with depression, we have not made any specific finding that he had any specific psychological state, as we simply do not have the evidence before us to make any such finding.

[184]However, we do note and record that in the Occupational Health report of 3 October 2014 the extent of the claimant’s progressive relapsing condition, with weakness effecting limbs and mild-moderate anxiety and moderate depressive state, are recorded, and adjustments of ergonomically assessed workstation/desk is still being recommended, and that it is stated that the “fourth floor is not the best designated level for a person with disability”.

[185]Further, while we are satisfied that the claimant’s disability status was known to both Mr West and the Appeals Committee in coming to their respective decisions to summarily dismiss the claimant and uphold that dismissal, what is less clear to us is to what extent Mr West, and the Appeals Committee, took proper account of the claimant’s disability as a mitigating factor.

[186]The Tribunal is satisfied, on the evidence we heard at the Final Hearing, that Mr Duffy, as the claimant’s line manager, was aware that the move to the fourth floor had created difficulties for the claimant, and that his health had deteriorated after the move, as implementation of reasonable adjustments was delayed.

[187]However, the Tribunal is much less clear about Mr West and the Appeal Committee’s position, although the claimant’s grievances, D@W complaint, and letter of appeal against dismissal, all set out not only his issues and frustrations at work, but how there was a link between his worsening MS, and his treatment at work. (b) His grievances and frustrations relating to reasonable adjustments, Occupational Health and his treatment by OH and HR?

[188]On the evidence before us, it must have been crystal clear to the disciplining manager, Mr West, and the Appeals Committee, that the claimant was aggrieved and frustrated with a number of matters arising from his employment with the respondents, and we are satisfied that these grievances and frustrations were taken into account by both Mr West, and the Appeals Committee, in coming to their respective decisions to summarily dismiss the claimant and uphold that dismissal. As the Appeals Committee decision is not provided with reasons, the Tribunal is unable to assess to what extent, if at all, these matters were taken into account on appeal. (c) His clean disciplinary record?

[189]In considering this aspect of the case, against the evidence led before the Tribunal, we have reminded ourselves of the terms of paragraph 11.1 of the respondents’ Disciplinary Policy and Procedure relating to “Disciplinary Action”, where it is provided as follows : “ In every case when determining disciplinary action, and / or deciding whether a disciplinary penalty is appropriate and what form it should take, the Manager must bear in mind the need to satisfy the test of reasonableness in all the circumstances. So far as is possible, account shall be taken of the employee’s current disciplinary record and all other relevant factors.”

[190]While this specific question asks about a clean disciplinary record being taken into account, the Tribunal has had regard to the fact that, as made clear in the Court of Appeal’s judgment, in Strouthos v London Underground Ltd

[2004] IRLR 636

, length of service is a factor to be taken into account, but it is not determinative of the issue whether or not there has been a fair dismissal. As Lord Justice Pill made clear, at paragraphs 29 to 31 of the Court of Appeal’s judgment in Strouthos, in cases of serious misconduct length of service will not save the employee from dismissal. That is trite law, but it all depends on the circumstances.

[191]Certainly, there will be conduct so serious that, however long an employee has served, dismissal is an appropriate response. However, considering whether, upon a certain course of conduct, dismissal is an appropriate response is a matter of judgment and, in that judgment, length of service is a factor which can properly be taken into account.

[192]On the evidence heard at the Final Hearing, the Tribunal is satisfied that the respondents did take into account the claimant’s length of service with them, and it was undisputed that his disciplinary record was clear of default, but, at the end of the day, that was not a factor which the employer felt merited a response to the claimant’s gross misconduct, other than what the respondents’ Disciplinary Policy had clearly forewarned employees that, if the employer was satisfied that gross misconduct had occurred, summary dismissal may result.

[193]The fact that Mr West’s dismissal letter of 24 September 2015, and indeed his own witness statement for this Tribunal, did not expressly mention it as a factor taken into account by him at the material time is most curious, but it does not negate his clear evidence to us that he did so, at the time, and that is evidence from him which we believed. As the Appeals Committee decision is not provided with reasons, the Tribunal is unable to assess to what extent, if at all, the claimant’s length of service and clean disciplinary record were taken into account on appeal.

[194]The Tribunal recognises that another employer, in similar circumstances, may well have decided to dismiss for misconduct, and pay notice to an employee being dismissed, to reflect previous good service, as that is an option lying within the range of reasonable responses for the respondents here to have adopted, but they summarily dismissed, and accordingly gave no payment in lieu of notice to the claimant, where they considered he was guilty of gross misconduct, and Mr West had stated to the Appeals Committee that the employment relationship could not possibly continue.

[195]The Employment Judge and Mr O’Hagan, in the majority, consider that the respondents could and should have imposed a lesser sanction, short of dismissal, given the absence of any proper warning to the claimant about breach of the Code of Conduct being likely to lead to his dismissal, and the respondents could have further explored whether the claimant’s case was suitable for ill health retirement. As such, the majority are satisfied that there were alternative disposals open to the respondents, which do not appear to have been considered. That is why the majority of the Tribunal consider that summary dismissal was not appropriate or proportionate in all the circumstances, and that the decision to summarily dismiss was outwith the range of reasonable responses open to a reasonable employer.

[196]Notwithstanding the claimant’s view that the employment relationship was not broken irretrievably, the respondents’ Appeals Committee appear to have had that view, although the lack of reasons for their decision makes that matter less than transparent. As the industrial jury looking at this case independently and objectively, the Tribunal can see why they came to that view, given Mr West’s position at the appeal before them. Mutual trust and confidence between employer and employee, which is an essential ingredient to any employment relationship, was gone, and not likely to be restored in a situation where the claimant continued to feel aggrieved, and the felt that there was some sort of conspiracy to get rid of him from the Council’s employment. This however was a conduct related dismissal, and the respondents did not argue otherwise before us, by, for example, suggesting if not conduct, then there was some other substantial reason for dismissing Closing Remarks

[197]We note how the ACAS Code, at paragraph 29, refers to the “results of the appeal hearing” being advised to the appellant as soon as possible – the ACAS Code says nothing about the need to provide reasons for the appeal decision, and this paragraph 29 stands in contrast to paragraph 45 of the Code, relating to grievance appeals, which requires “the outcome of the appeal should be communicated to the employee in writing without unreasonable delay.” Again, the Code does not require the employer to provide reasons for the grievance appeal outcome. Further, the respondents’ own procedures do not require reasons to be provided for a disciplinary or grievance appeal hearing.

[198]In his submissions to the Tribunal, the respondents’ solicitor, Mr Ettles, at paragraph 4.48 of his closing submission, stated: “The Claimant appealed against the decision to dismiss him and his Appeal was heard by a Committee of independent Councillors. The Appeal Hearing lasted for six days. The Appeals Committee upheld the original decision to dismiss on the basis of the same misconduct as that relied upon by the dismissing manager. The letter dated 26 August 2016 from Peter Hessett to the Claimant is in Bundle 3B, Page 862; and Core Documents, Page 977. The Appeals Committee did not make any new findings or any findings which were different from those of Stephen West. They simply upheld Mr West’s decision. The Appeals Committee did not require to state any more than was stated in the letter of 26 August 2016.”

[199]In considering that submission from the respondents, we pause to note and record that the Appeals Committee made no findings. The outcome was a short oral statement by Councillor Rainey, followed up by Mr Hessett’s confirmatory letter, and the formal committee minutes, stating that the grounds of appeal had not been substantiated and so they did not uphold the

[200]Although it was not stated expressly, the respondents suggest that the necessary implication is that the Appeals Committee upheld Mr West’s decision to dismiss, for the reasons he had given. The claimant, through his counsel, Mr John, disputes that that is the necessary implication, and specifically submits, at paragraph 156, that: “If it is to be said that the appeal must have simply found every aspect of all allegations proved, that simply cannot be inferred, nor on what basis, nor if it was reasonable. The burden of proving the reason for dismissal, and that it was for one of the listed reasons and was arrived at as a genuine belief after a suitably thorough investigation, remains with R. They have not done so.

[201]As part of the Tribunal’s consideration, we have taken into account the then EAT President’s judgment by Mrs Justice Simler, in Elmore v Governors of Darland High School [2017]

UKEAT/0209/16

, cited in the IDS Employment Law Handbook excerpt provided by Mr John, counsel for the claimant, at closing submissions. The IDS Brief states, at paragraph 3.103, that: “The ACAS Guide recommends that an employer should confirm in writing the results of an appeal and the reasons for the decision. However, failure to provide a reasoned appeal decision does not necessarily mean that the appeal was unfair.”

[202]In Elmore, despite the absence of a reasoned appeal decision or live evidence from a member of the appeal panel, the ET inferred that the appeal panel had upheld the employee’s capability dismissal for the same reasons as those relied upon by the dismissal panel itself. In the EAT, Mrs Justice Simler accepted that the ET had drawn a permissible inference that the appeal panel dismissed the appeal on the same grounds and for the same reasons as those identified by the dismissing panel, and that context was important when looking at the appeal stage.

[203]Firstly, there was neither any fresh evidence nor any new or alternative arguments put before the appeal panel that had not been advanced before the original panel. Secondly, the minutes of the appeal hearing were produced and made available to the Claimant and the Tribunal. The discussion reflected in those minutes was inconsistent with any suggestion that the appeal hearing was a mere formality or rubber-stamping exercise. Thirdly, the Employment Judge had found that it was implicit that by upholding the original decision, the appeal panel accepted not only the decision made by the capability hearing panel but also its reasons.

[204]In our view, it is to be considered that a 6-day appeal hearing, in the present case, where the claimant had trade union representation, cannot be construed as being a mere formality or rubber-stamping exercise, and the fact that the claimant perceives that that is what it is does not make it a reality.

[205]There was no credible evidence before this Tribunal to demonstrate that the Appeals Committee had acted other than independently and impartially, and while their reasoning was not explained, their decision was clear and unequivocal. It is the lack of a reasoned decision that makes it impossible for this Tribunal to come to a view on whether any procedural unfairness in the investigation and / or disciplinary hearing stages of the claimant’s case were cured on appeal. No appeal decision maker gave evidence to the Tribunal, and there is no decision with reasons for us to consider.

[206]Further, it was well within their remit to have not upheld the claimant’s dismissal, if they had felt there were grounds to do so. They did not uphold his appeal, and their view must be given respect, as they are the respondents’ appointed internal appeals body.

[207]The ACAS Guide to Discipline and Grievances at Work is, of course, not the ACAS Code, and it is only the Code that the Tribunal should have regard to. Nonetheless, as a public sector employer, we would expect the respondents as a local authority to take on board both the Code, and the Guide, and use both documents as a reference point in drafting any new policy or procedure or reviewing any existing policy or procedure.

[208]Based on our collective industrial experience, and with a view to improving the openness and transparency of their decision-making process, the Tribunal suggests to the respondents that they may wish to consider revising their disciplinary appeal procedure to impose a clear and unequivocal obligation on the Appeals Committee to give a statement of written reasons for their decision, rather than just briefly state the results / outcome.

[209]After all, as a matter of natural justice, and fair play, it is important that any unsuccessful appellant knows why their appeal has not been upheld, and what aspects of their appeal have not been considered as substantiated by the Appeals Committee. Further Procedure: Remedy Hearing

[210]This Final Hearing was held into liability only, with remedy reserved, in the event that any of the pled heads of complaint were upheld by this full Tribunal.

[211]The Tribunal directs that, unless parties can, within 28 days of issue of this Judgment, mutually agree the quantum of compensation payable by the respondents to the claimant, in respect of the successful failure to make reasonable adjustments, victimisation and unfair dismissal heads of complaint, and agree matters extra-judicially between themselves, through ACAS, or application to the Tribunal, under Rule 64 of the Employment Tribunals Rules of Procedure 2013, for a Consent Judgment to be made by the Tribunal, the Tribunal will assign a Remedy Hearing before the same Tribunal on a date to be hereinafter assigned, after the issue of date listing stencils to both parties.

[212]At that stage, parties’ representatives will be invited to advise the Tribunal, and each other, whether they intend to lead any evidence in that regard, if so who, and with estimated duration of the Remedy Hearing, and whether or not they consider it should be conducted in person, or remotely via CVP, giving reasons for their choice of type of Hearing. Directions will also be given by the Tribunal, in advance of any Remedy Hearing, about preparation of an updated Schedule of Loss for the claimant, and Counter Schedule from the respondents.

[213]While the Tribunal received, as part of both parties’ closing submissions at this Final Hearing, some limited arguments about the extent to which any compensation for unfair dismissal should be reduced to reflect any contributory conduct by the claimant, and any uplift or downlift for any unreasonable failure by either party to comply with the ACAS Code of Practice, we have decided that both parties’ representatives should address us further thereon, in light of this Judgment, by way of supplementary written submissions at any Remedy Hearing, and as such, we say nothing further at this stage.

[214]It will suffice, for present purposes, to note and record here that, when Mr John, counsel for the claimant, intimated his written claimant’s reply to Mr Ettles’ respondents’ closing submissions, on 29 June 2020, he stated as follows:71. C was not asked at disciplinary about future conduct or about a means of resolving his strong concerns, but at appeal he was and expressed a conciliatory attitude. R had not reasonable basis to view an irretrievable breakdown. The ET submission would be a very questionable “turning point” as it seemed to be in R’s view of C, especially as it constitutes victimisation. In the premises, it was simply not reasonable for R to categorise C’s conduct as gross misconduct, nor reasonbly (sic) warranting summary dismissal. It is not possible to divine what the appeal panel’s reasoning was, nor to say that it cured earlier flaws. R has for reasons which remain undisclosed, called no decision maker. it is simply not possible to say that it was a fair conclusion reached upon reasonable evidence, or how it dealt with C’s evidence and submissions.

72. C disputes that there should be a reduction for contributory conduct. In the absence of any investigation into his grievances and/or context of his complaints it is not possible to prejudge that C was unreasonable. A proper analysis of his position would have likely revealed an understandable frustration on what are legitimate concerns. A resolution of his issues, or a proper management of them had the potential to resolve them. Also his aggravated disability and stress and shut down grievances are not a backdrop against which it is easy to tar C as culpable of blameworthy conduct. Further oral submissions will be made on this point if invited.

73. In fact, the failure to follow a fair or policy compliant complete or sufficiently thorough investigation or fair procedure (i.e. inviting requested witnesses) renders it just and equitable to increase any award (up to the 25% limit) for unreasonable failure to follow the ACAS Code.

[215]Further, we also note and record here that in his oral submissions to us, on 3 July 2020, Mr Ettles, solicitor for the respondents, stated that he was inviting us to find the claimant’s dismissal was not unfair, but if the Tribunal were to find it unfair, as the majority of the Tribunal has done, then he submitted that the Tribunal should find “a large element of contributory, blameworthy conduct” on the part of the claimant, and it should be for the Tribunal to assess the level of his contribution, as he did not intend to put a precise figure on it, other than to suggest it should be “at the greater end of the spectrum”, then adding “it could be taken as 100% contribution as the claimant brought dismissal on himself.”

[216]On an uplift for failure to follow the ACAS Code, Mr Ettles stated that the respondents did not fail to follow that Code, while, in reply, the claimant’s counsel, Mr John, submitted that there should be no contributory conduct reduction of compensation for the claimant, there were “core failures”, and “fundamental flaws” by the respondents, and while the range for the Tribunal was to consider an uplift of up to 25% of the compensatory award for unfair dismissal, he accepted it would not necessarily be at 25%, but submitted as there were not limited failures, it should be more than half-way up the scale. 20 15 10 30 25 E.T. Z4 (WR) of Rule 52, dismissed the following claims, or parts of claims, as follows:- 51, the Tribunal, on the unopposed application of the respondents’ solicitor, in terms no longer being pursued, and they are withdrawn by the claimant, in terms of Rule the Tribunal, which have been previously pled by the claimant, but such claims are withdrawn certain claims, or parts of claims, in these combined proceedings the claimant, Tribunal is that: such a Judgment, the Employment consent of both parties, and the Employment Having heard parties’ solicitors, at Case Management West Dunbartonshire Council Mr Brian F. Gourlay Case by written note from his solicitor dated 10 September Nos:

Remedies

[217]Dr Kinniburgh provided his opinion in clear terms. He said “I believe that the failure to make reasonable adjustments at work in response to Mr. Gourlay’s needs and requests has precipitated a significant depressive illness, which resulted in him being off work at various points from 2013 onwards. This depressive illness worsened over time, especially after his unfair dismissal and the rejection of his appeal. These events were extremely traumatic for Mr. Gourlay and he continues to have trauma symptoms in the form of intrusive memories to the present day.”

[218]The Tribunal noted that, as pointed out by Mr John, there was no probative evidence before the Tribunal that the claimant’s MS was deteriorating before the move to the 4th floor, and no evidence that it has materially deteriorated since his dismissal. The Tribunal also noted that Dr Kinniburgh had described it as a mild progression of MS and that he considered the reason for the claimant’s unfitness squarely as the claimant’s mental condition. He stated in his report that “These mental health sequelae, namely, depression, anxiety and traumatic symptoms have been of a severity, such that Mr. Gourlay has been completely unfit for work since September 2015.”

[219]However, the Tribunal considered that the impact of the claimant’s combined health conditions meant that there was a significant chance that he would not have worked until normal retirement age. The claimant has MS. By the time of his dismissal, it had become secondary progressive, and the claimant accepted in evidence that he had ongoing problems with his health (although he considered good autonomy in his job was helpful in managing his MS). He had also been diagnosed with type 2 diabetes in May 2015. While everyone would hope that the progression of both diseases would be slow, the Tribunal considered that it was unlikely that, setting aside the unlawful acts, the claimant would have remained fit for work to the age of 67.

[220]The Tribunal was supported in this assessment by the fact that the respondents had been making enquiries about the possibility of ill health retirement prior to 2015. We note from our factual findings in our liability judgment (para 49) that, at a meeting on 14 January 2015, the claimant indicated that he would be interested in the possibility of ill health early retirement as he was mindful of the deterioration of his health. This was before the claimant was dismissed when his mental health significantly deteriorated.

[221]The Tribunal considered it possible that this option could have been offered to the claimant and he could have applied for it at some point before retirement age. The Tribunal also notes that the claimant himself said at paragraph 48 of the conjoined paper apart to ET1 that “Had not the Claimant been suspended and dismissed for a discriminatory reason, he would almost certainly been retired on the grounds of ill-health”. Although when that was put to the claimant he said that things had moved on, the Tribunal considered that such a statement was an indication that ill health retirement was a likely outcome if the discriminatory dismissal had not happened. As such, the Tribunal does not see how the claimant can argue now that he would have remained fit for work to the age of 67.

[222]While the claimant, in his evidence to the Tribunal, stated that he held a belief that he would have been capable of continuing to work until his normal retirement age, at age 67, the Tribunal is not so satisfied that he would have so continued. The Tribunal has preferred the expert psychiatric evidence from Dr Kinniburgh, in his supplementary report, that the claimant is “now to all intents and purposes permanently unfit for work.”

[223]Further, the Tribunal considers that the deterioration of the claimant’s relationship with his senior managers made it likely that, even if the claimant did not apply for early ill health retirement, his employment would have been lawfully terminated before his normal retirement age.

[224]We refer to our findings in fact at paragraph 49(92) to (100) above, earlier in these Reasons. On the evidence available to us, we find that had the claimant not been dismissed by the respondents on 24 September 2015, or had his internal appeal been upheld by the Appeal Committee on 25 August 2016, and he had been reinstated to his post, then it is more likely than not that the claimant would not have continued in their employment after 31 March 2017.

[225]We find that, by no later than 31 March 2017, the claimant’s employment with the respondents would more likely than not have terminated, either by dismissal by the respondents on the basis of an irretrievable breakdown in working relationships between the claimant and the respondents, or by a mutually agreed termination of employment on agreed terms.

[226]We noted at paragraph 196 of the liability judgment that “Mutual trust and confidence between employer and employee, which is an essential ingredient to any employment relationship, was gone, and not likely to be restored in a situation where the claimant continued to feel aggrieved, and he felt that there was some sort of conspiracy to get rid of him from the Council’s employment.”

[227]It is worth stressing here that the Tribunal considers that the claimant bore some responsibility for this breakdown in relations due to his own conduct. Although we found the dismissal to be unfair, that was not because the claimant’s conduct was not deserving of some sanction. For example, we commented in the liability judgment (page 103-104, at paragraph 29 i. f) that it seemed to us, in respect of his relationships with other colleagues within the Council, that if a person did not agree with the claimant, then he saw them as being in the wrong, and he did not appear to be able to accept that there could be a different view held by others. We consider there is a strong possibility that had the claimant not been dismissed unlawfully, his employment may well have been terminated fairly because of this breakdown in relationships with colleagues.

[228]Indeed, as we recorded at paragraph 28(225) of our liability judgement, at page 89, Mr West’s dismissal letter to the claimant, dated 24 September 2015, referred to “an irretrievable breakdown of trust and confidence in the employment relationship”. We also recall how, as we recorded at paragraph 196 of our liability judgement, at pages 192 and 193, that this was a conduct related dismissal, and the respondents did not argue otherwise before us, at the Final Hearing, by, for example, suggesting if not conduct, then there was some other substantial reason for dismissing the claimant.

[229]We note that Mr Miller invites us to make a firm finding that the claimant would have retired on grounds of ill health and the date on which that would have occurred. At paragraph 6.1 of his skeleton submission for the respondents, Mr. Miller stated that: “Had he not been dismissed the Claimant would successfully have applied for ill-health early retirement at some point between 1 April 2016 and 31 March 2017.”

[230]At paragraph 9 of his skeleton submission for the respondents, when Mr Miller then suggests we invite parties to assess the loss of pension accordingly, he “The Employment Tribunal is invited to draw on the evidence and its combined industrial experience and make a finding about the date when the Claimant, but for the dismissal, would have been retired on ill-health grounds and therefore access Tier 1 benefits. Parties should thereafter be allowed the opportunity to assess the consequential compensation due. This is consistent with the ratiocination in Chagger v Abbey National plc

[2010] IRLR 47

, Elias LJ delivering the combined judgment of the Court of Appeal.”

[231]We do not consider that we are in a position to make such firm findings, especially so long after the event. In any event, the claimant has, since his dismissal by the respondents, secured a deferred pension on the grounds of ill-health from the Local Government Pension Scheme backdated to 12 November 2016. With backdating and interest, and as vouched by the document from the claimant, lodged with the Tribunal, on 2 June 2023, by Mr Woolfson, the claimant has been in receipt of pension payments and lump sum, since 2 May 2018.

[232]We consider that a percentage reduction is a more appropriate and fair way to reflect what we consider to be a strong possibility that the claimant may have either retired early by way of ill health retirement or that his employment may have been lawfully terminated due to a breakdown in relationships. We accept this is inevitably a broad-brush assessment and may over or undercompensate the claimant for economic loss but that is the nature of such determinations.

[233]The Tribunal has assessed the chance that the claimant’s employment would have come to an end before the age of 67 (his normal retirement age) at 80 % and so any award for loss of earnings or pension loss should be reduced by this amount. Calculation of economic loss

[234]The calculation for past loss of earnings, as per the claimant’s schedule of loss, includes £13,495.68 for 26/09/2015 to 02/04/2016, shown as 27 weeks @ £499.84 per week (net), then assumed gross annual salaries for each following financial years, from 03/04/ 2017 to 10/03/2023, multiplied by 71.53% to give an assumed net loss of pay.

[235]Future loss of earnings to retirement is calculated using an assumed annual gross salary, again multiplied by 71.53% to give an assumed net loss of pay, assuming a 2.3% annual increase on salary, based on an asserted average increase of the last 8 years’ increase.

[236]Although not shown as a sub-total on the schedule of loss, at pages 204 and 205 of the Joint Bundle, the total of the 8 past loss of earnings entries to 10 March 2023 is actually £205,659.49, and not the stated net loss of earnings to date of hearing shown in column 5 as £181,214.10. That is the net loss, after deduction of estimated State benefits of £24,445.38, shown in column 4.

[237]Turning then to the claimed future loss of earnings to retirement of £221,713.69, that is the total of the 8 future loss of earnings entries to 25 November 2029, his 67th birthday. From that falls to be deducted the estimated amount of state benefits received over that period being £21,469.86.

[238]Those amounts (£205,659.49 plus £221,713.69), leave a total figure for loss of earnings (past and future) of £427,373.18, less total of £45,915.24 (deduction for State benefits of £24,445.38 plus £21,469.86) and before any reduction or interest.

[239]Pension loss, as per Dr Pollock’s report, is £197,430. While we note that the respondent questions the accuracy of aspects of the report in submissions, in the absence of detailed questioning of Dr Pollock (we understand by agreement) we consider the report should be accepted as a reasonably accurate assessment of the claimant’s pension loss resulting from his dismissal.

[240]The total of £624, 803.18 (£427,373.18 plus £197,430) for economic loss then has to be reduced by 80%. That provides a figure for economic loss, before interest, of £124,960.64.

[241]Applying interest to that sum at 8% from 27 November 2019 (being the midpoint of the 3050 days between 24 September 2015 to 29 January 2024, the date of calculation) gives £41,767.67 (being £124,960.64 x 0.08% x 3050/365/2 days). The total award for economic loss is therefore £166,728.31.

[242]The Tribunal considers that this award also encompasses the economic loss that would be attributable to the respondents’ failure to make reasonable adjustments and the compensatory award for unfair dismissal and so no additional award is made in respect of these elements of the claim.

[243]The reduction of 80% takes account of the contributory conduct of the claimant as noted above to the breakdown of relations and the principles of Polkey. See our further discussion and deliberation later in these Reasons, under Compensation for Unfair Dismissal. Injury to Feelings

[244]On the claimant’s behalf, Mr John has sought an award for injury to feelings.

[245]We have heard evidence from the claimant, and in considering this matter, we have reminded ourselves of the unreported EAT judgment of His Honour Judge David Richardson, in Esporta Health Clubs & Anor v Roget

[2013] UKEAT 0591/12

, which makes it clear that a Tribunal has to have some material evidence on the question of injury to feelings.

[246]Here, we have the claimant’s own evidence, but no partner, or friend’s supporting testimony, nor any evidence from any other person outwith his workplace with knowledge of the precise nature and extent of the claimant’s injured feelings, so it has been difficult for us to differentiate between any stressors caused by the respondents, any other non-work related stressors, and any other or additional stressors caused by the claimant’s decision to prosecute this claim before the Tribunal, a feature common to all litigants.

[247]As recorded earlier in these Reasons, at our findings in fact, we recall that in his letter of 7 January 2022 to the Tribunal, about pension matters, the claimant detailed the 9 distinct phases so far in regard to him trying to progress and obtain his entitlements from the local government pension, describing it as “a very protracted, frustrating and stressful period of my life.”

[248]Further, we recognise that people can be externally calm in demeanour and appearance, when giving evidence, yet internally in turmoil, and so we recognise that claimants may not show their true feelings in a public Hearing, and indeed not everybody has the personality to express their true feelings in front of a Tribunal. The claimant’s statements, in his witness statement, written with time for reflection, were, we felt, at points a little melodramatic, but nonetheless genuinely expressed by him.

[249]At paragraph 54 of his written closing submission, Mr John submitted that: “The respondent accepts that the failure to make reasonable adjustments and victimisation merit separate awards. The pleaded counter offer is £10,000 for this head (page 209 para 2.5).”

[250]As per Mr Miller’s Counter Schedule, at paragraph 1.7, reproduced at page 208 of the Joint Bundle, the respondents accept that the claimant is entitled to separate awards for the failure to make reasonable adjustments and for the victimisation.

[251]In deciding upon an appropriate amount for each award, we first of all have had to address the appropriate band as per Vento.

[252]At paragraph 60 of his written closing submission, Mr John submitted that: “The impact of failure to make reasonable adjustments merits an award in the region of £20,000-£25,000 and the discriminatory disciplinary aspects around £20,000. Alternatively a £40,000 award combined is reasonable.”

[253]It is our judgment that, for the failure to make reasonable adjustments, this is a case that appropriately falls into the low band, and around the upper quartile of that band. Mr Miller’s proposal is that we award £10,000 (as per his Counter Schedule, at paragraph 2.5, reproduced at page 209 of the Joint Bundle). Doing the best we can, to put things against a monetary value, and taking account of failures over a two-year period, from September 2013 to September 2015, we assess the claimant’s injured feelings, arising from the respondents’ failure to make reasonable adjustments, at £8,500. To that has to be added interest at 8% from the date of the failure, being from, say 1 September 2013.

[254]Applying interest to that sum of £8,500 at 8% from 1 September 2013 to 29 January 2024, the date of calculation, gives £7,085.04 (being £8,500 x 0.08% = £680pa x 3803/365 days), so a total award for injury to feelings for failure to make reasonable adjustments of £15,585.04.

[255]For the victimisation aspects, covering the claimant’s suspension, summary dismissal, and unsuccessful appeal, these are individual, discrete acts, but they build up over time, and we can readily acknowledge that they have had continuing consequences for the claimant, where his dismissal reinforced and exacerbated the claimant’s feelings consequent upon the suspension, and it did not simply extinguish it.

[256]Put another way, his upset because of the earlier suspension was not simply rubbed out by the greater upset caused by the later treatment of his dismissal. Likewise, as we see it, with his later appeal, that exacerbated the claimant’s feelings consequent upon his dismissal, and it did not simply extinguish it.

[257]In this case, we are not satisfied that there was any concerted campaign against the claimant, although we recognise that that was his perception, but equally these were not isolated incidents, as there were various issues in the way the claimant was treated throughout the last 6 months or so of his employment with the respondents, particularly in what happened with his suspension, and dismissal, and thereafter with the subsequent appeal process.

[258]Mr Miller’s proposal that we award £3,000 for the victimisation claims (as per his Counter Schedule, at paragraph 2.6, reproduced at page 209 of the Joint Bundle) is rejected by us, as being too low. He states that sum is the appropriate figure as it “reflects the marginal aspect of the victimisation when combined with the other substantive reasons.”

[259]The claimant’s reply to that paragraph 2.6, as reproduced at page 219 of the Joint Bundle, stated that: “We do not agree that the victimisation can reasonably be stated as being a “marginal aspect” of the victimisation, given that it involved not only the claimant being suspended from work, but also being dismissed (and having his appeal rejected).”

[260]We agree with the claimant’s reply, and it is our judgment that, for the victimisation, this is a case that appropriately falls into the middle band, but around the first quartile of that band. Doing the best we can, to put these things against a monetary value, and taking account of all of the victimisation, we assess the claimant’s injured feelings, arising from the victimisation, at a global figure of £15,000.

[261]As these awards of injury to feelings are awards made in a discrimination case, the interest provisions of the Employment Tribunals (Interest on Awards in Discrimination Cases) Regulations 1996, SI 1996 No. 2803, apply, as the claimant’s discrimination complaints against the respondents are brought under applicable provisions of the Equality Act 2010.

[262]At paragraph 54 of his written closing submissions, Mr John submitted that: “The claimant pleads an injury to feelings award of £40,000 plus interest at 8% from September 2013 (date of reasonable adjustments failures).”

[263]We do not believe that date range to be appropriate, as we are making separate awards for injury to feelings arising from failure to make reasonable adjustments, and discrete acts of victimisation.

[264]Accordingly, while we have awarded interest from September 2013 to the injury to feelings award arising from failure to make reasonable adjustments, the Tribunal has decided that interest for the award arising from victimisation should be calculated from the date of dismissal being the most significant element of the victimisation.

[265]By way of apportionment, and applying a broad-brush approach, from that global award of £15,000, we would allocate £2,500 for the suspension, £7,500 for the dismissal, and £5,000 for the rejected appeal.

[266]Applying interest to that global sum of £15,000 at 8% for the 3050 days between 24 September 2015 to 29 January 2024, the date of calculation, gives £10,027.40 (being £15,000 x 0.08% = £1,200 pa x 3050/365), so a total award for injury to feelings for victimisation of £25,027.40. Compensation for Unfair Dismissal

[267]The claimant’s basic award for unfair dismissal is agreed between the parties as arithmetically correct, as per Mr Miller’s Counter Schedule, at paragraph 1.15, reproduced at page 208 of the Joint Bundle, and it was paid as part of the interim payment made by the respondents to the claimant on 20 December 2022.

[268]In his oral submissions to the Tribunal, when asked by the Judge to clarify what had been stated in paragraph 10 of his written submission, Mr Miller clarified that in asking the Tribunal to reduce the basic unfair dismissal award for the claimant’s contributory conduct, the respondents were asking for a reduction to the compensatory award only for unfair dismissal, and not the basic award.

[269]The Tribunal therefore awards £4987.50 as a basic award for unfair dismissal (calculated as 7 x £475 x 1.5) .

[270]Looking then at a compensatory award for unfair dismissal, from date of dismissal (24 September 2015) to close of Remedy Hearing (9 March 2023) is 389 weeks. If proceeding only under compensation for “ordinary” unfair dismissal, calculated in terms of Section 123 of the Employment Rights Act 1996, the statutory cap of 52 weeks would amount to £25,991.68, being £499.84 per week net, multiplied by 52.

[271]However, the claimant’s Schedule of Loss sought an amount far in excess of the statutory cap, and sought compensation for financial loss in terms of Sections 119 and 124 of the Equality Act 2010, comprising past loss of salary, future loss of salary, and pension loss.

[272]As regards loss of statutory rights, which often forms a component part of any compensatory award for unfair dismissal, the claimant’s response to the respondents’ Counter-Schedule, at paragraph 1.16, reproduced at page 215 of the Joint Bundle, stated that: “As the Claimant did not pursue alternative employment he did not have to wait two years to re-acquire protection against unfair dismissal and so he has no loss under this head.” This submission was agreed by Mr Miller when replying on behalf of the respondents. As such, this Tribunal makes no award for loss of statutory rights.

[273]As stated above, at paragraphs 242 and 243 of these Reasons, the Tribunal considers that its award of compensation for economic loss for the discrimination complaints also encompasses the economic loss that would be attributable to the respondents’ failure to make reasonable adjustments and the compensatory award for unfair dismissal and so no additional award is made in respect of these elements of the claim. The reduction of 80% takes account of the contributory conduct of the claimant as noted above to the breakdown of relations and the principles of Polkey.

[274]There were also before us questions on uplifts and deductions argued for by the respondents as set out in the agreed List of Issues, namely what should be awarded for adjustment to reflect non-compliance with the ACAS Code of Practice (issue 8 (e) in the agreed List of Issues) and should there be any reduction in the compensatory award by reason of contributory fault and / or on Polkey grounds (issue 10).

[275]In respect of that unfair dismissal by the respondents, the Tribunal finds that the claimant did not unreasonably fail to mitigate his losses, by failing to try and secure new employment with another employer after the respondents dismissed him on 24 September 2015, and up to and including 25 August 2016, when his internal Appeal against dismissal was rejected by the respondents’ Appeal Committee, as he was certified not fit to work, and he continued after 25 August 2016 to be certified not fit to work. We have made that finding in our findings in fact, earlier in these Reasons, at paragraph 49(32) above.

[276]In the respondents’ counter schedule of loss, at paragraph 1.3, at pages 210 and 211 of the Joint Bundle, Mr Miller stated that: “Had he been able to search for work he would have found it within at least six months of his dismissal. In local government alone the West of Scotland has over ten councils with large health and safety departments within a reasonable commuting distance of the Claimant’s home.”

[277]That was an assertion made by the respondents, but no evidence was led before us to attempt to prove that as a fact.

[278]In the claimant’s reply to the respondents’ counter schedule, at paragraph 1.1, it was stated that: “It is the claimant’s position that he is currently unfit to work, and has been unfit to work since September 2015. Reference is made to the report of Dr Kinniburgh, and in particular the answer to question 2. Therefore, the duty to mitigate does not arise.”

[279]Further, in answer to the respondents’ paragraph 1.3, it was stated on behalf of the claimant that: “Please see the response above to 1.1. In any event, it is not agreed that the claimant would have found new employment within six months (bearing in mind his appeal process took 11 months), and the above has no regard to the claimant being a disabled person and having been dismissed for alleged gross misconduct. However, this is academic given the response above to 1.1.”

[280]While this matter of mitigation of loss was not expressly covered in parties’ closing submissions, given the EAT authority of Cooper Contracting Limited v Lindsey [2015]

UKEAT/0184/15

, [2016] ICR D3, on mitigation of loss, the Tribunal notes and records that, on the respondents’ behalf, no evidence had been led of other jobs that the claimant could have applied for, other than the respondents lodging the “historic vacancy report”, as document 25, at pages 176 to 178 of the Joint Bundle.

[281]Cooper, a judgment of the then EAT President, Mr Justice Langstaff, holds that the burden of proof is on the alleged wrongdoer, the respondents, and that the respondents have to prove that the claimant acted unreasonably; a claimant does not have to prove that he has mitigated loss. The test may be summarised by saying that it is for the wrongdoer to show that the claimant acted unreasonably in failing to mitigate.

[282]We have made a finding in fact, earlier in these Reasons, at paragraph 49(27) above, that that “historic vacancy report”, running to 3 pages, had job titles only and in some, but not all cases, location outwith West Dunbartonshire), for 301 headcount jobs, but no other data was included as to where and when these vacancies had arisen, nor as to the nature and extent of the job, and salary placing, etc.

[283]Further, we have made a separate finding in fact, earlier in these Reasons, at paragraph 49(28) above, that this report, which was also not spoken to in evidence by any witness from the respondents, was of no practical assistance to the Tribunal. It contains raw data, with no detail as to individual job vacancies. It was not put to the claimant, in cross-examination, that he unreasonably failed to mitigate his losses by failing to apply for any of these listed vacancies.

[284]In these circumstances, the respondents have not satisfied this Tribunal that the claimant unreasonably failed to mitigate his losses, post termination of employment with the respondents.

[285]Further, in respect of that unfair dismissal by the respondents, the respondents invited the Tribunal to find that the dismissal was to an extent caused or contributed to by the actions of the claimant, and so it would be appropriate to reduce the amount of any compensatory award by a proportion of up to 25% as the Tribunal might consider just and equitable, having regard to any such finding, in terms of Section 123 (6) of the Employment Rights Act 1996.

[286]We had competing submissions on this matter from both Mr John for the claimant, and Mr Miller for the respondents. In his written skeleton submission for the respondents, Mr Miller submitted, at his paragraph 10, that the Tribunal should reduce the unfair dismissal award to reflect the claimants' contributory conduct. He referred, in particular, back to the terms of his paragraph 6.3, which we reproduce here, along with the following paragraphs 6.4 and 6.5, reading as follows: 6.3. There was conflict at every turn with every conflict generating complaints and / or grievances and /or claims and a further terminal deterioration in relationships was therefore the most likely outcome had employment continued. Even at ET he enjoyed mixed success. His section 15 application failed as did three of his six allegations of victimisation. His earlier public interest disclosure claims (S/4100134/2014 and S/4102906/2014) were dismissed in their entirety after a 21-day hearing, with ten of those dates occurring before his dismissal. The Claimant bears a great deal of responsibility himself for the deterioration in working relationships. As early as 2014 when presenting an amendment application he directed unfounded allegations of untruthfulness against the Respondent. 6.4. As ET noted, at the appeal it was expressly acknowledged by the Claimant’s representative that his conduct had left him “worthy of sanction” (ETJ para165 p183) and the decisive majority of ET as part of its reasoning said that the Respondent “should have imposed a lesser sanction” (ETJ para195 p192). 6.5. Most significantly, the full tribunal could see why the Appeals Committee appeared to have formed the view that the working relationship had “broken irretrievably” (ETJ para 196 p192).

[287]For the claimant, Mr John’s written closing submissions, at his paragraphs 80 to 83, stated that: “81. Is the Claimant’s conduct blameworthy in the circumstances? No. Context is important. The Claimant was operating against the aforesaid, evidenced, background of suffering physically and mentally because of physical changes at work, and his pleas for a proper assessment of which were being ignored. His MS was flaring and he was stressed. This was caused by the respondent’s failures. His grievances were being shut down and not resolved. He also took issue with how his conduct was being unfairly categorised in the disciplinary process. There was never an investigation into what he had said or the context of it, to see whether it was ‘unfounded criticism’ as alleged. The claimant said that there was significant context and mitigation for his comments. He was frustrated and had no resolution. He was known to be disabled and the respondent knew that he was suffering.82. The claimant had never been abusive. His position was reasoned. S. West accepted that it was legitimate for the claimant to raise the twitter submission as part of his case.

83. In the liability judgment the ET found (p.188 para 181) that the respondent should have sat the claimant down formally in order to find out why he was behaving as he was and how they could assist and that they could have brought his attention to the appropriate standards in the code of conduct.

84. Further, the respondent made no challenge to this point and called no witnesses and put no conduct to the claimant in XX at the remedies hearing.”

[288]The Tribunal regards both parties as having contributed to the situation where the claimant was dismissed, and relationships breaking down, and the respondents were as much at the heart of that breakdown in relationships, and mutual trust and confidence, as was the claimant. ACAS Uplift

[289]In the claimant’s schedule of loss, as at 20 February 2023, reproduced at pages 204 and 205 of the Joint Bundle, an ACAS uplift was sought between 20% to 25%, and using the figures in that schedule of loss, the uplift, assumed at 20%, was calculated as being £149,511.77.

[290]We have, in this Judgment, awarded the claimant considerably less than the “bottom line” sought of £882,058.13, taking account of the interim payment of £20,000 already paid to the claimant, as shown in his schedule of loss at pages 204 and 205 of the Joint Bundle.

[291]In the respondents’ original Counter Schedule, dated 9 September 2022, at paragraph 1.19, as reproduced at page 208 of the Joint Bundle, Mr Miller had stated that: “Nothing is due under this heading as the ACAS Code was not breached. Esto the tribunal holds that the Code was breached the value claim [sic] is a patently and wholly disproportionate measure of the breach.”

[292]When the claimant replied to that paragraph 1.19, as reproduced at pages 217 and 218 of the Joint Bundle, it was stated that: “In summary there was:(a) a failure to consider documents provided by the claimant to Annabel Travers on 26 May 2015 (breach of paragraph 5 of the Code);

(b) a failure to have regard to a recording and transcript provided by the claimant (breach of paragraph 5 of the Code);

(d) a failure to ensure the suspension was as brief as possible and kept under review (breach of paragraph 8 of the Code);

(e) a failure to allow the claimant to call witnesses (breach of paragraph 12 of the Code),

(f) a failure to hear the claimant’s appeal without unreasonable delay (breach of paragraph 26 of the Code),

(g) a failure to investigate the claimant’s grievances (breach of paragraph 4 of the Code); and

(h) a failure to hear the claimant’s grievances which had been raised prior to the disciplinary allegations being made (breach of paragraph 33 of the Code). In our submission it was unreasonable for the respondent to have failed to comply with the Code. With regard to the amount of the percentage uplift, it is the claimant’s position that the breaches of the Code were unreasonable, numerous and significant and that an uplift in the region of 20% to 25% would be warranted, having regard to proportionality and the amount of the underlying award.”

[293]When thereafter, Mr Miller finally responded on behalf of the respondents, as reproduced at page 218 of the Joint Bundle, he submitted that: “The Code breaches are disputed. If the Claimant succeeds to the full extent of his Schedule of Loss then applying the percentage which he seeks would be “manifestly too high”, the description used by the EAT (Langstaff, P presiding) in Bethnal Green & Shoreditch Education Trust v Dippenaar [2015]

UKEAT/0064/15

.”

[294]In his closing submissions for the claimant, his counsel, Mr John set forth his position in the claimant’s written closing submissions on remedy, at paragraphs 61 to 63, in answer to issue 8(e) in the agreed List of Issues, as “61. The claimant sets out the 8 examples of breach of the ACAS Code in the counter-schedule with consolidated replies (p.217) along with the paragraphs of the Code breached.62. The failures were numerous and are reflected in the judgment on liability. The core failure to investigate the claimant’s grievances in advance of any misconduct process, or to investigate them at all in this case, to reduce the scope of the investigation are fundamental failures, indicative of a closed mind and denial of the claimant’s right to be properly heard and to defend himself. Limiting the scope of the investigation even in the face of the investigating officer’s recommendations to investigate the claimant’s claims of defence/mitigation in respect of the alleged misconduct is an aggravating aspect worthy of a significant uplift.

63. Subject to the tribunal’s discretion to consider the proportion of the value compared to the measure of breach, the claimant would contend for more than halfway up the 25% limit, and will expand in oral submissions.”

[295]Mr Miller, the respondents’ solicitor, in his written skeleton submission, dealt with this matter very briefly at his paragraph 8.5, reading as follows: “8.5. There has been no breach of the ACAS Code. Esto the tribunal concludes otherwise see the four-stage approach suggested by the EAT (Griffiths, J) in Slade v Biggs

[2022] IRLR 216

at paragraph 77.”

[296]In paragraphs 15 and 16 of the claimant’s supplementary closing submissions on remedy, intimated on 13 March 2023, counsel for the claimant further “15. The ACAS uplift, can consider, (separately and distinctly), the nature of the Code breaches (as previously submitted upon) and can serve as both a punitive measure and a measure to encourage fair process compliance. The claimant contends for 20% uplift to reflect the nature of the procedural flaws as found in the main judgment, in terms of a fair investigation and a fair consideration of the claimant’s grievances. 16. Although ultimately it is a matter for the tribunal, the claimant contends that the totality of award is reflective of the circa 2 years of failures to make reasonable adjustments between around September 2013 – September 2015 dismissal and the obviously damaging effects of those failures plus the dismissal, upon the Claimant in a now chronic and significantly impacting mental health disorder.”

[297]We have carefully considered both parties’ submissions to us, as also the EAT judgment in Dippenaar, as also the EAT judgment in Slade & Hamilton v Biggs and others, as mentioned by us earlier under Relevant Law. In his PH Note dated 28 September 2022, following the Case Management PH held the previous day, the Judge had referred both parties’ solicitors to Dippenaar, and Slade, as also Allma Construction Limited v Laing [2012]

UKEATS/0041/11

[298]In all the circumstances, the Tribunal has decided that while there were breaches of the Code and these were unreasonable, to award an uplift in this case would not be just, bearing in mind that many of the breaches themselves have been founded on successfully for other complaints. We also consider that given the sums that the Tribunal has awarded, an uplift would be disproportionate in all the circumstances. We consider that it would be “manifestly too high” as per the EAT in Dippenaar.

[299]We therefore refuse to award any uplift in the region of 20% to 25%, as sought on the claimant’s behalf. Indeed, in the circumstances of this case, the Tribunal makes no uplift adjustment to any of the awards under Section 207A of the Trade Union and Labour Relations (Consolidation) Act 1992.

[300]On this point, we make further comment regarding two of the listed breaches, (d) and (f). As regards “(d) a failure to ensure the suspension was as brief as possible and kept under review (breach of paragraph 8 of the Code)”, the Tribunal recalls, from its finding in fact, at paragraph 28(200) of the original liability judgment, that Stephen West’s letter of 17 June 2015 to the claimant, confirming his suspension, advised him that the period of paid removal from duty was a temporary measure which would not be recorded on his personal record, it was not an assumption of guilt, and it was not considered a disciplinary sanction.

[301]There was no evidence presented to us at the Final Hearing, or at this Remedy Hearing, to show that the claimant’s suspension was kept under review by any senior officer of the Council nor, if it was reviewed, who by, when, and on what basis.

[302]As regards “(f) a failure to hear the claimant’s appeal without unreasonable delay (breach of paragraph 26 of the Code)”, the Tribunal recalls, from its finding in fact, at paragraph 28(233) of the original liability judgment, at page 91, that claimant’s internal appeal hearing took place over six days between 18 February 2016 and 25 August 2016. From the appeal being lodged by the claimant, on 8 October 2015 (as per our finding in fact, at paragraph 28(230) of the liability judgment, at page 90, to it being concluded, on 25 August 2016, was a period of 323 days (or 10 months, 18 days). From first day of the appeal to the last was a period of 190 days (or 6 months, 8 days).

[303]Further, as we recorded at paragraphs 156 to 158 of our liability judgement, at page 180, while, in our collective experience, a 6-day internal appeal is quite exceptional, the fact that it took place over a six month period needs to be viewed in context, in that the appeal hearing was constituted to be held on set dates, agreed between the parties, where the claimant enjoyed the benefit of trade union representation, through the GMB, and on account of the need to adjourn, and relist for additional dates.

[304]The delay was not, of itself, evidence of any procedural or substantive unfairness to the claimant, as he was provided with the opportunity to appeal, and he did so, submitting detailed grounds of appeal, he and his union representative were heard, and the Tribunal was satisfied that it was a fair and impartial process, not simply a rubber stamping of Mr West’s decision to summarily dismiss the claimant.

[305]Further, as we recorded at paragraph 204 of our liability judgement, at page 195, a 6-day appeal hearing, where the claimant had trade union representation, cannot be construed as being a mere formality or rubberstamping exercise, and the fact that the claimant perceived that that is what it does not make it a reality.

[306]We went on to say, at paragraph 205, there was no credible evidence before this Tribunal to demonstrate that the Appeals Committee had acted other than independently and impartially, and while their reasoning was not explained, their decision was clear and unequivocal.

[307]It was the lack of a reasoned decision from the Appeals Committee that made it impossible for this Tribunal to come to view on whether any procedural unfairness in the investigation and / or disciplinary hearing stages of the claimant’s case were cured on appeal, as no appeal decision maker (i.e. no elected councillor) gave evidence to the Tribunal, at the Final Hearing, and there was no decision with the reasons for us to consider. Grossing Up

[308]In Mr Woolfson’s email of 22 August 2023, he updated the Tribunal on the claimant’s tax position, stating that, with regard to personal allowance, it may be helpful for the Tribunal to know that the claimant's expected earnings for this tax year 2023/24 are £14,732.24. Therefore, it was confirmed that the claimant will again use up the annual personal allowance, as he did in the last tax year, though this is subject to the level of the Tribunal award. He submitted a revised grossing up table.

[309]The Tribunal does not consider it appropriate that it proceed, on its own, to compute a grossed-up figure for compensation. Accordingly, we have ordered that payment of the awards we have made in the claimant’s favour, giving credit for the balance of £15,012.50, arising from the payment to account of £20,000 made to the claimant on 20 December 2022, is sisted by the Tribunal, acting in terms of its powers under Rule 66 of the Employment Tribunals Rules of Procedure 2013, pending the outcome of parties’ co- operation to agree the final (grossed-up) figure to be paid by the respondents to the claimant.

[310]A separate calculation will also be required to be agreed between them to take account of the £20,000 interim payment already paid in advance to the claimant.

[311]In relation to the awards of compensation set out by the Tribunal, in our Judgment above, we have also decided that it is appropriate to direct the parties’ representatives to co-operate and jointly agree, within 14 days of issue of this Judgment, a calculation showing how parties have agreed the final (grossed-up) total to offset any tax liability to the claimant, and notify the Tribunal of the agreed sums and invite the Tribunal to incorporate them into a Judgment by Consent in terms of Rule 64 of the Employment Tribunals Rules of Procedure 2013. Closing Remarks : Financial Penalty and Expenses

[312]In writing up this our reserved judgment, the Tribunal has had cause to reflect, in our final private deliberation, upon whether or not this is an appropriate case to consider making a financial penalty order against the respondents, in terms of Section 12A of the Employment Tribunals Act 1996, as amended by the Enterprise and Regulatory Reform Act 2013, Section 16.

[313]A financial penalty order can be made by a Tribunal, in circumstances where, in determining a claim involving an employer and a worker, the Tribunal concludes that the employer has breached any of the worker’s rights, and the Tribunal is of the opinion that the breach has one or more “aggravating features”.

[314]Our liability Judgment of 17 September 2021 found that the respondents had breached the rights of the claimant, in several respects, and, in these circumstances, we note and record that the claimant’s Schedule of Loss never flagged up such an application being sought by the claimant, nor did his counsel in his closing submissions to this Remedy Hearing invite us to consider any financial penalty order against the respondents.

[315]In these circumstances, we have not considered it appropriate that we should consider the matter, acting on our own initiative. We considered, but in the end discounted, the possibility of inviting written representations on financial penalty from both parties, but we decided not to do so, as it could have been raised on the claimant’s behalf at a much earlier stage, and it would simply add further delay and expense if it were to be raised at this late stage.

[316]While, as detailed earlier in these Reasons, at paragraph 20 above, the question of any expenses arising from day 1’s renewed application by the respondents’ counsel to postpone the Remedy Hearing was reserved for future determination by the Tribunal, no application for expenses was advanced by the claimant’s counsel in his closing submissions to the Tribunal.

[317]In these circumstances, in terms of Rule 77 of the Employment Tribunal Rules of Procedure 2013, if any such application is to be made on the claimant’s behalf, then it should be intimated by written application made to the Tribunal, and copied to the respondents’ representative, within no more than 28 days from of issue of this Judgment.

[318]In that event, if there is to be any expenses application by the claimant, then the respondents will be afforded a reasonable opportunity to make written representations in response to the application, within no more than 14 days after any such intimation from the claimant’s solicitor.

[319]Subject to the views of both parties, to be thereafter sought by the Tribunal, in the event of any opposed expenses application, the Tribunal would propose to make a reserved decision, on the papers only, and do so without the need for any attended Expenses Hearing, unless either party, on good cause shown, requested to be heard at an oral Hearing. G. Ian McPherson RECONSIDERATION JUDGMENT The judgment of the Tribunal is as follows.(1) It would not be appropriate or just to revisit the award of the original Tribunal on 30 January 2024 in respect of pain, suffering and loss of amenity (solatium) caused by unlawful discrimination. The claimant’s application for an extension of time for reconsideration of that decision is refused, and the application for reconsideration accordingly fails.

(2) The parties are now agreed that interest on the sum awarded by the original Tribunal on 30 January 2024 as compensation for injury to feelings is governed by the Employment Tribunals (Interest) Order 1990 (as amended). That is the claimant’s entitlement, but it is not appropriate to issue any further judgment on that issue.

(3) Awards of interest on compensation for personal injury are not taxable and should not be grossed up, whereas awards of interest on compensation for injury to feelings are taxable, and should be grossed up. That also applies to interest on compensation for injury to feelings suffered because of a failure to make reasonable adjustments prior to dismissal.

(4) Given the current positions of the parties on pension loss arising in the context of a CARE scheme, I reconsider and vary my original judgment of 14 November 2025 to the following extent. While I would have been prepared to adopt Dr Pollocks’ use of current salary as a proxy for revaluation of historic salary, I now direct that the parties should each prepare a detailed calculation of pension loss based on annual CPI revaluation instead, as illustrated by the Gaynor example in the current edition of the Principles for Compensating Pension Loss. The parties are free to agree a suitable deadline for that, otherwise it should be done 3 working days before the next hearing. As always, they should seek to reach agreement if possible.

(5) The award for future loss of earnings should be discounted both for the standard risk of mortality and also for accelerated receipt. I will hear further submissions on the size of the appropriate reductions, but provisional approaches are suggested below.

(6) The grossing up calculation cannot properly be carried out until all other issues have been resolved, and I have not considered it further at this stage.

Remedies

[1]Following the remission of some remedy issues by the EAT, a remedy hearing took place on 6 October 2025. My first judgment on remedy was sent to the parties on 14 November 2025. A resumed remedy hearing was listed for 1 December 2025 to decide any remaining issues that the parties were unable to resolve by agreement. One of several reasons for that was the parties’ joint wish to seek expert input to the question of grossing up to allow for the effect of taxation on the Tribunal’s award of compensation.

[2]However, several other new and unexpected issues arose at the hearing on 1 December 2025, which resulted in the agreed approach summarised in a case management order made on 1 December 2025 and sent to the parties the following day.

[3]The parties would provide an agreed list of issues and written submissions on all outstanding issues before the holiday period began, and I would then produce a further judgment before the end of the calendar year. This is that judgment. It is intended to deal with remedy issues raised for the first time on 1 December 2025 as well as some points raised by way of applications for reconsideration of the judgment sent to the parties on 14 November 2025.

Issues

[4]The agreed list of the issues I must now decide is as follows.a. Personal injury award. Whether it would be appropriate to revisit the question of interest on compensation for pain, suffering and loss of amenity (i.e. “solatium” in Scotland), further to paragraph (1) of the original remedy judgment dated 30 January 2024 (EJ I McPherson and members), by way of reconsideration or otherwise.

b. Injury to feelings. Whether it would be appropriate to revisit the question of interest on compensation for injury to feelings, further to paragraphs (2) and (3) of the original remedy judgment dated 30 January 2024, by way of reconsideration or otherwise, having regard to the existence of “judgment debt interest”, as a matter of right under the Employment Tribunals (Interest) Order 1990 (as amended).

c. Grossing up interest. Whether interest on awards of compensation for personal injury and/or injury to feelings should be grossed up.

d. Pension loss. Whether the approach to pension loss under a CARE scheme adopted by Dr Pollock is appropriate, or whether some other method of allowing for the revaluation of “slices” of salary year by year would be fairer, by example by applying compounded CPI increases as the scheme itself would have done.

e. Future loss of earnings. i. Whether the parties’ agreement of the figure for future loss of earnings envisaged a further reduction for accelerated receipt. ii. Should the future loss figure be discounted for the mortality contingency?

f. The tax calculation. What calculation needs to be carried out to ensure that the claimant receives the correct net sum awarded by the tribunal? Submissions

[5]Since Mr Woolfson (solicitor) made written submissions on behalf of the claimant, and Mr Miller (solicitor) made written submissions on behalf of the respondent, I will not set them out in full or even summarise them here. They are available if either side wishes to refer to them elsewhere. I will deal with their arguments in my reasoning below. (1) Personal injury award – reopening the issue of interest

[6]The original Tribunal (EJ I McPherson and members) dealt with this in their judgment of 30 January 2024. That aspect of the judgment was not appealed by either side, and therefore it was not within the scope of the remitted issue, which the EAT defined as, “past and future wage loss and pension loss”. It is impossible to construe that as including interest on an award for psychiatric injury caused by unlawful discrimination. The question is therefore whether I should reopen that issue and, if so, by what procedural route?

[7]The claimant’s point is that the original Tribunal was wrong to decide not to award any interest on compensation of £35,000 for psychiatric injury. To an extent I agree because, respectfully, I do not follow the original Tribunal’s logic, as expressed in paragraph (1) of the summary judgment, and in paragraph 213 of that Tribunal’s reasons. It is certainly true that the Judicial College Guidelines for the Assessment of General Damages in Personal Injury Cases (i.e. “solatium” in Scotland) are updated for inflation, though in my experience practitioners would normally carry out additional calculations to update for inflation between editions. However, any equivalence between that and an award of interest is, in my respectful view, false. The purpose of an award of interest is not to update for inflation, but rather to compensate the receiving party for having been kept of out their money since the date on which the loss was suffered. Any correlation between the statutory interest rate and CPI or RPI based measures of inflation is coincidental, and historically they have often been very different.

[8]However, all of that is subject to two qualifications:a. the parties are free to make whatever agreements they wish on a remedy issue, even if agreement is reached on an erroneous basis, and a party is similarly free not to seek interest if they wish;

b. the general principle of finality of proceedings, and the way in which the statutory time limits for challenge reflect that principle.

[9]As for the first of those points, the original Tribunal’s judgment records that the parties agreed that the Judicial College Guidelines were updated for inflation (which they are), and that the claimant sought no interest under the Employment Tribunals (Interest on Awards in Discrimination Cases) Regulations 1996. The implication appears to be that the claimant did not seek interest because the Judicial College Guidelines were updated for inflation. Either way, the original Tribunal recorded a decision by the claimant not to seek interest. That is now disputed by the claimant.

[10]As for finality of proceedings, the time limit for any application for reconsideration was 14 days from the date on which the original remedy judgment was sent to the parties (13 February 2024), and the time limit for appeal was 42 days from the date on which the original remedy judgment was sent to the parties (12 March 2024). Both sides had engaged experienced specialist representatives, and both sides appealed to the EAT within time. Despite the scrutiny which must have been given to the original remedy judgment, this point was not taken by the claimant on appeal.

[11]The claimant’s initial oral submission on 1 December 2025 was that the question of interest is always “at large” at a discrimination remedy hearing, and that gave me the freedom to revisit the original Tribunal’s failure to award interest. I do not accept that submission because the issue of interest is no longer “at large” once a Tribunal has given a judgment on it. That is what the original Tribunal did. It expressly declined to award any interest. The issue did not remain at large. In those circumstances I decided that the only options open to the claimant would be to challenge the original decision by way of a very late application for reconsideration, or a similarly late appeal. The claimant has now raised it by way of an application for reconsideration.

[12]In support of that application for reconsideration of the judgment sent to the parties on 30 January 2024, the claimant now argues that the original Tribunal made a mistake and was wrong to think that the claimant did not seek interest, whether for the implied reason or any other reason. The claimant accepts that the alleged mistake should have been the subject of an immediate application for reconsideration within time and apologises for the “oversight” which has led to that application being made about 22 months late.

[13]As I indicated on 1 December 2025, I did not think that the claimant’s application for reconsideration failed the merits test in rule 70(2), and it deserved full argument.

[14]The claimant requires a very substantial extension of the time limit for an application for reconsideration under rule 69 of the Employment Tribunal Procedure Rules 2024, and argues that it would be in accordance with the overriding objective to do so under rule 5 because:a. the issue of compensation is still being considered by the Tribunal, and the final award has not yet been made.

b. The prejudice to the claimant of not receiving interest outweighs any prejudice to the respondent in allowing a late application for reconsideration, and the respondent should not benefit from a mistake on the part of the original Tribunal. It is important and in the interests of justice that the claimant should be properly compensated. The amount of interest at stake was calculated at £27,831.23.

c. The matter had not been addressed earlier due to a genuine oversight on the part of Mr Woolfson in what he described as a “long-running and complex case with many moving parts and various issues needing to be considered and addressed”. That was candidly put forward as an explanation rather than an excuse.

[15]I accept the respondent’s submission that the fact that some remedy issues remain live following remission by the EAT has little bearing on the appropriateness of re-opening a different remedy issue which was not even appealed. The claimant seeks a very late reconsideration indeed, and the principle of finality of proceedings carries great weight in those circumstances. Until very recently, the respondent had been entitled to think that the issue of interest on compensation for personal injury had been the subject of a final and binding adjudication.

[16]The respondent is also correct to point out that there is normally a strong public interest in the finality of litigation. It is not simply a question of the respondent’s own private interest in avoiding the possibility that the claimant might be awarded additional compensation.

[17]Importantly, the respondent does not agree that the original Tribunal made the alleged mistake, so evidence would be required if the issue were now to be reopened. There would be significant obstacles to achieving a fair hearing of that issue. By the earliest date on which it would now be possible to list a reconsideration hearing with evidence EJ I McPherson would have been retired for around 2 years. I have no idea whether his notes of the remedy hearing in March 2023 would still be available, but there must be a serious doubt about that. Even more troublingly, the respondent’s solicitor at the time, Mr Ettles, has very sadly passed away since the original remedy hearing, so the respondent would be at a significant disadvantage in giving evidence regarding agreements allegedly reached or decisions allegedly made at a hearing in March 2023. Those specific difficulties exist in addition to the general forensic prejudice that inevitably arises from a 22-month delay in seeking reconsideration, where the live issue would concern things said and done at a remedy hearing on 6, 7 and 9 March 2023. That would be more than three years prior to the earliest date on which a hearing of the issue could now be arranged.

[18]So far as the interests of the claimant are concerned, his professional representative will be insured, and the claimant may therefore have other remedies. I am careful to go no further in case these comments are thought to trespass on issues which fall aside the jurisdiction of this Tribunal. It would be for another body to decide whether the admitted oversight on the part of the claimant’s solicitor amounted to something which would give the claimant an alternative remedy for the loss suffered. I am also aware that the pursuit of alternative remedies against professional representatives is not necessarily straightforward and would entail additional litigation risks and funding from the claimant’s point of view.

[19]Having carried out a balancing exercise, I have decided that the interests of justice weigh firmly in favour of refusing to extend the time limit for the claimant’s application for reconsideration of the part of original remedy judgment that dealt with interest on compensation for personal injury.

[20]The application for reconsideration is accordingly refused because it was made out of time.

[21]The position will therefore remain that the Tribunal awards no interest on compensation for personal injury. (2) Updating the award of interest on compensation for injury to feelings

[22]The rules of procedure envisage that awards of compensation will be complied with within 14 days, unless the judgment provides for a different date or is sisted or stayed. The current position is set out in rule 64 of the Employment Tribunal Procedure Rules 2024, although it was not in force when the original Tribunal promulgated its judgment on remedy. Nothing turns on that, since the wording of rule 66 of the Employment Tribunal Rules of Procedure 2013 was the same.

[23]The position after judgment is dealt with by the Employment Tribunals (Interest) Order 1990 (as amended), effectively giving the successful party a right to the Employment Tribunal equivalent of judgment debt interest, either by agreement or by way of enforcement. That is the claimant’s remedy for late payment of sums awarded long ago.

[24]The claimant now accepts this, but the implication of the claimant’s written submissions appears to be that the Tribunal should make a separate award under that legislation. I do not think that is the correct approach, because this concerns interest which arises as a matter of statutory right after the Tribunal has completed its task. A further judgment is neither necessary nor appropriate. Conspicuously, the Employment Tribunals (Interest) Order 1990 (as amended) confers an entitlement to interest on a claimant, but it does not give a power to award interest to the Tribunal. The clear thrust of the legislation is to provide an incentive for prompt payment, and a mechanism for the calculation of interest on the judgment debt if that judgment has to be enforced.

[25]This is therefore a matter for agreement between the parties or, failing that, enforcement by the usual means. It is not appropriately a matter for a Tribunal judgment, or reconsideration. (3) Whether awards of interest on compensation for personal injury and/or injury to feelings should be subject to “grossing up”

[26]Section 369 of the Income Tax (Trading and Other Income) Act 2005 sets out the general rule that income tax will be charged on interest, but there is a specific exception in section 751(1)(a) of the same Act for “interest on damages for personal injury or death if it is included in a sum awarded by a court”. Section 751(3) expressly includes “solatium” within the definition of damages for that purpose.

[27]As the authors of Harvey note at Div BII, N [421], “The exemption from tax does not extend to the Employment Tribunal’s limited power to award interest on compensation under the Employment Tribunals (Interest on Awards in Discrimination Cases) Regulations 1996, save to the extent that it relates to interest on compensation for a deterioration in the claimant’s physical or mental condition which amounts to personal injury.”

[28]I accept the claimant’s submission, and the view of the authors of Harvey. Consequently:a. none of the interest awarded on compensation for personal injury caused by unlawful discrimination is subject to tax, and so it should not be grossed up;

b. interest awarded on compensation for injury to feelings is subject to tax and should therefore be subject to grossing up.

[29]I do not accept the respondent’s submission that interest on compensation for injury to feelings in summary paragraph (3) of the original remedy judgment is not subject to tax and should not therefore be subject to grossing up. On the contrary, I find that it should be treated in the same way as the other interest on injury to feelings – it is subject to tax and should be subject to grossing up.

[30]I reject the respondent’s submission that, “On any measure, the McPherson Employment Tribunal Order (3) in respect of injury to feelings was not connected with termination and the sum in question need not be grossed up.” While the respondent is correct that the relevant award of compensation for injury to feelings was not connected with termination and should not be grossed up (see also paragraph 76 of the judgment of 14 November 2025), the relevant provision for interest on that award is the general rule in s.369 of the Income Tax (Trading and Other Income) Act 2005 that interest is liable to income tax. The situation does not fall within the exception to that general rule for personal injury in section 751 of the 2005 Act and the respondent has not identified any other potentially applicable exception. Chapter 3 of the 2003 Act does not apply at all, but that has no bearing on the general rule in s.369 of the 2005 Act, or the exceptions to that general rule.

[31]While this result might seem to be in tension with Wealmoor Ltd v Poniatowski

[2025] EAT 48

, HHJ Tayler’s judgment in that case was not concerned with interest and therefore there was no need to consider the provisions of the 2005 Act on which my decision is based. (4) Pension loss – revaluation calculations for loss of pension in a CARE scheme

[32]The joint Presidential Guidance provides that Tribunals should have regard to the Principles for Compensating Pension Loss (currently 4th edition, 3rd Revision, 2021) when calculating compensation for pension loss.

[33]I will use the common acronym “CARE” for Career Average Revalued Earnings pension schemes.

[34]A useful summary of the way in which CARE schemes generally operate is provided in paragraphs 5.13 to 5.19 of the Principles. I highlight in particular paragraphs 5.14(a) and 5.15(d). Those paragraphs outline the practice of “uprating” each year’s pay for inflation when calculating the career average, and the Government’s “preferred scheme design” in which “banked slices” would be revalued in line with CPI (or in some schemes, a rate tracking CPI).

[35]Neither side has adduced evidence or made submissions that the respondent’s CARE scheme operated in a materially different way. Revaluation is a core principle of any such scheme, and that is reflected in the nomenclature.

[36]The original position of the parties was that:a. the claimant invited me to adopt Dr Pollock’s methodology, which entailed using projected current salary as a proxy for the revaluation of “banked slices” of salary; whereas

b. the respondent argued that it was incorrect to use the claimant’s projected salary at the date of this remedy hearing, suggesting that the calculation should instead be carried out on the basis of the claimant’s salary in 2022. That argument was rejected in the judgment of 14 November 2025 and the respondent now seeks reconsideration.

[37]At paragraphs 68 to 72 of the judgment and reasons sent to the parties on 14 November 2025 I explained why I thought that Dr Pollock’s methodology was sound, and why I accepted it. See in particular paragraph 69(m). In essence, Dr Pollock’s approach used annual salary increases as a proxy for revaluation of historic pension earnings to reflect changes in the CPI. That seemed fair to me, and certainly much more logical than the respondent’s submission, which failed to offer any cogent alternative method for the full revaluation of “banked slices”. The respondent was effectively arguing for no revaluation at all since 2022, which ignores a core feature of a CARE scheme. The respondent’s approach puts forward an arguable figure for average earnings, but it does not provide an acceptable answer to the need to revalue those earnings, year by year, for changes in the CPI.

[38]I observed during oral submissions on 1 December 2025 that any inaccuracy in Dr Pollock’s method was likely to favour the respondent rather than the claimant. That is because real terms earnings have generally fallen over the ten-year history of this litigation, especially in the public sector. With limited exceptions, wage increases have generally tended to lag behind increases in CPI over the period 2015-2025. Consequently, a method of revaluation that tracked salary increases rather than CPI was likely to undercompensate the claimant. However, it was the method suggested by the claimant, it was supported by the evidence of an impressive expert, it had the advantage of simplicity. The respondent’s suggested use of 2022 salary instead seemed arbitrary and had no real logic to it, since the only certainty was that it failed to revalue 2015-2022 contributions in 2023, or 2015-2023 contributions in 2024, or 2015-2024 contributions in 2025. I am not aware of any example in the Principles that adopts an approach to revaluation equivalent to that put forward by the respondent, nor is there any expert evidence which supports that approach.

[39]It remains the case that neither side has yet put forward a more sophisticated calculation than that suggested by Dr Pollock, but the respondent maintained its stance when seeking reconsideration.

[40]However, given the respondent’s objection, the claimant now wishes to abandon projected salary as a proxy for CPI-based revaluation, and to carry out an accurate CPI-based revaluation instead. Since the respondent continues to contest Dr Pollock’s simpler methodology, I will direct an accurate CPI-based revaluation instead. This method of doing things will cause some delay and will be more complicated, but it will be more accurate. I reconsider and vary the judgment sent to the parties on 14 November 2025 to that extent.

[41]My rejection of the respondent’s suggested alternative method stands, because, for the reasons set out above and in my previous judgment, the respondent has not persuaded me that it is a fair method for dealing with the revaluation of “banked” earnings.

[42]In additional written submissions sent after the deadline, the claimant invited me to carry out the CPI revaluation myself. I am not prepared to do that unless the respondent first has a fair chance to put forward its own calculation of CPI revaluation, and it seems unlikely that the respondent will have seen the claimant’s correspondence in sufficient time to do that. Since the claimant has the burden of proof of loss, and is professionally represented, I would expect him to provide a calculation too.

[43]The parties should now carry out a calculation of pension loss which includes a CPI revaluation of “banked slices” of salary. They have permission to instruct an expert on that issue (and grossing up, but no other issue) if they wish. As always, I would hope that it could be agreed. If not, I will hear submissions on it at the next hearing.

[44]Essentially, I am asking the parties to consider the Gaynor example at page 155 of the current edition of the Principles. It illustrates possible responses to many of the points raised in this case, including withdrawal factors and revaluation. The Gaynor example also includes a table setting out a revaluation calculation at page 156. I direct that the parties should carry out an equivalent calculation with a view to agreement. (5)(i) Future loss of earnings – whether to be discounted for accelerated receipt

[45]This is really a dispute about what was agreed between the parties. At paragraph 94 of my last judgment I assumed that the figure agreed by the parties included an agreed discount for accelerated receipt. It turns out that this is contentious.a. The claimant’s position is that the parties reached agreement on a figure for future loss of earnings without qualification, and that there should not be any further reduction for accelerated receipt.

b. The respondent’s position is that the agreement was subject to further argument about discounts including one for accelerated receipt.

[46]If the respondent is correct, then I would certainly make a discount for accelerated receipt if the parties are unable to agree it, although it is likely to be modest given the modest degree of acceleration.

[47]The claimant has provided a collection of communications between the representatives between 1 and 3 October 2025 leading to the agreement. The respondent has not provided any additional similar documents so I assume that the respondent is content that I have seen all that I should have seen. So far as the respondent is concerned, no issues arise from the “without prejudice” nature of the correspondence.

[48]The two most important emails are:a. 3 October 2025 14:52, Mr Miller to Mr Woolfson including the passage, "We suggest that we agree the net future earnings loss at £140,000 (before discounting and any grossing up) as representing a reasonable compromise between our calculations. Is that acceptable?”

b. The reply at 3 October 2025 16:20, Mr Woolfson to Mr Miller, including the sentence, “Yes, we can agree £140,000 as suggested”.

[49]I have applied the usual objective test embodied in the line of cases which includes Reardon Smith Line Limited v Yngvar Hanser-Tangen

[1976] 1 WLR 989

, HL, Investors Compensation Scheme Limited v West Bromwich Building Society

[1998] 1 WLR 896

, HL, BCCI v Ali

[2001] UKHL 8

, Chartbrook v Persimmon Homes

[2009] UKHL 38

, Rainy Sky SA v Kookmin Bank

[2011] UKSC 50

, SC, Arnold v Britton

[2015] UKSC 36

, SC, and Wood v Capita Insurance Services Ltd

[2017] AC 1173

[50]The principles set out below clearly apply in Scotland: see for example Fife Council v Royal and Sun Alliance Insurance Plc

[2017] CSOH 28

and Ashtead Plant Hire Co Ltd v Granton Central Developments Limited [2020] CISH 2. In the latter case the Inner House of the Court of Session referred to the principles of contractual construction derived from those cases as "well established”. I will borrow and adapt the summary of relevant principles set out by Lord Drummond Young in Ashtead.

[51]The aim of interpreting a provision in a contract is to determine what the parties meant by the language used, which involves ascertaining what a reasonable person would have understood the parties to have meant. The hypothetical reasonable person is someone who has all the background knowledge which would reasonably have been available to the parties in the situation they were in at the time of contracting.

[52]Two important principles follow from that.a. A contract must be construed contextually, because language can be ambiguous and a proper view of the meaning of a passage can only be reached by placing that passage in context. It is necessary to consider all the relevant surrounding circumstances.

b. The correct approach to construction is objective. It seeks to establish the meaning that a reasonable person in the position of the parties would have understood the contract to have. The meaning of a contract cannot be determined by the subjective intentions or understandings of one of the parties and declarations of subjective intent are irrelevant. A court or tribunal must instead take an objective view, based on what would have been known to a reasonable person at the time the contract was entered into.

[53]A court or tribunal should also adopt a purposive approach, having regard to the fundamental objectives that reasonable people in the parties’ position would have had in mind. The substance of the parties’ agreement, construed objectively, should prevail over niceties of wording, especially where clauses have not been well drafted. In some cases, a purposive construction may justify a conclusion that the parties must have made errors of wording or syntax.

[54]In a similar way, a court or tribunal may also have regard to “business common sense”, though I would observe that this may have more to add as a distinct principle in a commercial context than it does in an employment context. If there are two possible constructions the court or tribunal is entitled to prefer the construction which is consistent with business common sense and to reject the other, even if the rejected option is the more literal interpretation of the words used. Lord Drummond Young observed in Ashtead that interpretation in light of “commercial common sense” was likely to overlap with the need to consider context and the need to adopt a purposive construction.

[55]My conclusion is that a reasonable person with appropriate background knowledge would have understood the parties to have agreed £140,000 for net future loss of earnings before and subject to “any discounting and grossing up”. It is therefore now open to the respondent to argue for a reduction for accelerated receipt.

[56]Where significant loss is suffered over a significant period, discounts for accelerated receipt are routine and can be taken to be well-known to experienced representatives dealing with a high value claim. The hypothetical reasonable person would also know that. I find that a discount for accelerated receipt falls fairly within the term “discounting” in the respondent’s email, and that the parties’ agreement expressly envisaged the possibility of further discounts for various reasons, including accelerated receipt of a lump sum in respect of future loss suffered over a period.

[57]It was not necessary for there to be any specific reference to a particular type of discount for the agreement to have that effect. I do not think that the hypothetical reasonable person would make the distinction suggested by Mr Woolfson, between “accelerated receipt” and “discounts for mortality and other contingencies” when construing the term “discounting”. I find that all those things fall within the scope of “discounting” to which he had agreed. The respondent’s offer had not drawn the distinction that Mr Woolfson now invites me to make, and on an objective construction I find that the agreement allowed for the possibility that the sum of £140,000 might subsequently be reduced for reasons including accelerated receipt. I think that conclusion is consistent with a purposive construction and business common sense (if relevant) because it narrowed the scope of the argument between the parties and made for a more efficient hearing in accordance with the overriding objective.

[58]The respondent has suggested a reduction of 5%, but it is not clear to me where that comes from. Subject to any further submissions the parties wish to make, my provisional view is that the reduction should be based on Ogden Table 35, using the +0.50% discount rate. The projected date of retirement at age 67 is 25 November 2029. That is 47 months from now. The parties could interpolate if they wish, but the period of acceleration is so close to an integer number of years that it makes very little difference. I calculate an interpolated multiplier of 0.9801. If either or both sides disagree, then they may make submissions at the next hearing or in writing before that date. Applied to the agreed figure for future loss of earnings before deductions, that would lead to a figure of £137,214, once discounted for accelerated receipt. (5)(ii) Future loss of earnings – reduction for risk of dying before retirement age

[59]I had assumed that the parties would agree all appropriate discounts for mortality after my last judgment, but it remains contentious. The claimant argues that there should be no reduction for mortality at all.

[60]As I explained in paragraphs 56 to 58 of the judgment and reasons sent to the parties on 14 November 2025, I am not persuaded that there is any sufficient evidential basis to depart from standard actuarial assumptions about mortality. That is not the same as saying that no reduction should be made for mortality at all. It rather depends which Ogden table is being used.

[61]Ogden tables 1 to 34 already take into account the risk of mortality. Tables 35 and 36 do not take mortality into account and assume that loss will continue to be deferred for the relevant period, or that it will continue for the entirety of the fixed term.

[62]That means that a small reduction should be made to reflect the risk of mortality between the date on which remedy is awarded and the claimant’s projected retirement age, because it is not already built into table 35. The respondent argues for a 3.6% reduction, but I am not clear where that comes from. There is no reference to any evidence in the respondent’s most recent written submissions, and the original written submissions from the respondent referred to the Ogden tables without citing any particular table or explaining how it was applied.

[63]I accept the need for a reduction in principle, but it would be helpful to be referred to the statistical material underpinning the respondent’s figure of 3.6%. There are about 4 years between now and the projected date of retirement. The correct approach would allow not only for the statistical risk of dying at some point within that period, but also for the fact that there would still be a future loss of earnings on any scenario other than death on the very day of the award. The statistical distribution of life expectancy is an S-shaped curve (because, on average, among adults the risk of dying generally increases with age), but a fair solution might be to assess the chance that a 63 year old man will not reach the age of 67, and then halve that chance to reflect the fact that a man falling into that category might nevertheless live to 64, or 65, or 66, suffering a loss of earnings to those dates. Halving the initial figure effectively treats a slight curve as a straight line of constant gradient, but over short periods that is often regarded as an acceptable approximation. I am happy to hear further submissions on that. (6) Tax and grossing up I agree with the respondent. We are not yet at the stage where the grossing up calculation can be carried out. Other matters must be resolved first. Pension lump sum

[64]Just before I started writing this judgment, I became aware of the respondent’s notice of appeal. I note that ground 4 is that “lump sum pension loss is not taxable” and asserts that I therefore made an error of law by deciding that all pension loss fell to be grossed up.

[65]I am not aware that this point has so far even been argued, let alone decided against the respondent. I have reviewed the written submissions and my notes of previous hearings and I cannot see any similar argument. As things stand, and subject to correction by either or both sides, I believe this is a point not yet argued at first instance. In those circumstances the respondent might wish to raise it at the next hearing. It is also unfortunate that, as far as I am aware, these points have not been raised with the experts who have been instructed to calculate pension loss and to carry out the grossing up calculation.

[66]If raised, the respondent would need to identify the statutory provision that supports the argument. I am not aware that it has identified one so far. The issue is not whether a lump sum pension payment made by a pension fund is taxable, but rather whether compensation for pension loss awarded by an Employment Tribunal is taxable under the current statutory income tax framework. It would also be helpful if both sides could also address the relevant parts of the Principles.