Miss J ByrneClaimantBiP Solutions LimitedRespondent
Before
Employment Judge O’DonnellM Dalziel for claimantWeightmans LLP for claimantDate 24 September 2025
JUDGMENT
The judgment of the Employment Tribunal is that the claim of unfair dismissal is struck out on the grounds that it has no reasonable prospect of success in terms of rule 38 (1)(a) of the Rules contained in the Employment Tribunals Procedure Rules 2024.
REASONS
[1]The claimant has brought a number of complaints against the respondent. One of the claims indicated on the ET1 claim form is a claim of unfair dismissal under s94 of the Employment Rights Act 1996[2]The claimant does not have the two years’ service which is normally required for the Tribunal to hear a claim of unfair dismissal in terms section 108(1) of the Employment Rights Act 1996. Further, the ET1 does not, on the face of it, plead a claim of “automatic” unfair dismissal for which the two year rule is disapplied.[3]At a previous case management hearing this issue was raised with the claimant and she was asked whether she was insisting on the unfair dismissal claim. The Tribunal indicated to her that it was considering striking out this claim (and only this claim) on the basis that it had no reasonable prospects of success given the fact that she did not have two years’ service with the respondent. The claimant was given the opportunity to comment on this before any decision was made.[4]The claimant sent comments by correspondence dated 23 July 2025. The correspondence does not specifically address the issue of two years’ service and the claimant asserted that her claim in relation to dismissal was a claim under the Equality Act and not the Employment Rights Act.[5]The position remains is that a claim of unfair dismissal under the Employment Rights Act has been raised in the ET1 form and remains live at the present date. It needs to be resolved and the claimant has not set out any basis on which the Tribunal could conclude that there are reasonable prospects of success in respect of this claim. The claimant does not have two years’ service and so the Tribunal has no jurisdiction to hear this claim. The claimant has not made any submissions which impacts on this position.[6]In these circumstances and for these reasons, the Tribunal strikes out the claim of unfair dismissal under the Employment Rights Act 1996. For the avoidance of doubt, no other claim falls under the scope of this judgment.[1]The claimant has brought a range complaints against the respondent under the Equality Act 2010 relying on the protected characteristic of disability. The case was subject to extensive case management in three separate preliminary hearings and in correspondence. The main purpose of this case management was to clarify the claims being pursued by the claimant in order that the respondent had fair notice of the claims they had to answer and the Tribunal could identify what claims it had to determine.[2]As a result, a list of issues was produced for the final hearing which started on 8 September 2025. This appears at pp98-108 of the bundle prepared by the respondent. At the start of the final hearing, the Tribunal granted the claimant’s application to amend her case to add a claim of constructive dismissal under the 2010 Act. This decision is set out in a judgment sent to parties on 9 September 2025 and is referred to for its terms.[3]During the course of the claimant’s evidence-in-chief, the Employment Judge referred the claimant to the list of issues in order that she was given the opportunity to give evidence on all the matters on which she based her case. During the course of that, it became clear that the claimant was of the view that the list of issues did not accurately reflect her case. It was not clear, however, as to what it was that the claimant said was missing or inaccurate and so she was given the opportunity to set this out in a written application.[4]The application was initially made in an email of 12 September 2025 which had four attachments relating to the claims of direct discrimination, discrimination arising from disability, indirect discrimination and the duty to make reasonable adjustments. This was supplemented by an email of 15 September 2025 which included the original four attachments along with two additional attachments in relation to the claims of victimisation and harassment. These emails along with the attachments form the claimant’s application.[5]The application has been opposed by the respondent.[6]Having reviewed the claimant’s emails (including the attachments) and heard from parties on 16 September 2025, the Tribunal has determined the claimant’s application as follows.[7]Although the discussion has been about the list of issues, the Tribunal does consider that the claimant is, in reality, making an application to amend. The different categories identified below are different types of amendment ranging from the relabelling of existing claims, new claims based on existing facts and all the way up the scale to new claims based on new facts.[8]The Tribunal has, therefore, approached the claimant’s application as an exercise of its general power to make case management orders which includes the power to allow amendments to a claim or response in terms of Rule 30.[9]In particular, the Tribunal has dealt with the application by applying the principles set out in the case of Selkent Bus Co Ltd v Moore [1996] ICR 836 that this is a matter of judicial discretion taking into account all relevant factors and balancing the injustice and hardship to both parties in either allowing or refusing the amendment. The case identifies three particular factors that the Tribunal should bear in mind when exercising this discretion; the nature of the amendment; the applicability of any time limits; the timing and manner of the amendment.[10]In relation to the claims of indirect discrimination, the duty to make reasonable adjustments and victimisation, the Tribunal notes that the attachments setting out the terms of the application are the same documents submitted earlier in the Tribunal process as further and better particulars of these claims. The list of issues was created using these particulars and it is unclear from the attachments what it is the claimant says is inaccurate about the list of issues in respect of these claims. The claimant was expressly asked to comment on this when the Tribunal heard submissions from the parties in relation to the application but she did not provide any further detail beyond what is in the attachments.[11]Having compared the particulars to the list of issues, the Tribunal considers that the list of issues does accurately reflect the claims being pursued. There is not, therefore, any basis on which the list of issues requires to be varied. For example, the matters which the claimant says amount to a provision, criterion or practice (PCP) in relation to reasonable adjustments are all captured at paragraph 22 of the list of issues. They are worded differently because the claimant described the PCPs in narrative terms and the list of issues summarises what is being said. Similarly, the PCPs in respect of the indirect discrimination claim that the claimant insists upon (the claimant had a longer list of PCPs but abandoned some of these at the case management hearing on 7 July 2025) are properly identified at paragraph 14 of the list of issues.[12]For these reasons, the claimant’s application, insofar as it relates to the claims of indirect discrimination, the duty to make reasonable adjustments and victimisation, is refused.[13]In respect of the claims of direct discrimination, discrimination arising from disability and harassment, the Tribunal has identified that the allegations which the claimant wishes to add to the list of issues fall into four categories.[14]First, Category A are allegations which already appear on the list of issues under the same head of claim as the claimant seeks to advance them. There is no need for any variation of the list of issues or amendment of the case in respect of those allegations falling within Category A and the claim in respect of each of these can proceed as it has been.[15]The allegations falling within Category A are as follows (using the numbering paragraphs):- i. Paragraphs 20-22. i. Paragraphs a), c)3 & c)4. i. Paragraphs 28d), e)i-v), f), k) [which is a duplicate of e)] and v)[16]Second, Category B are allegations which already appear on the list of issues but under a different head of claim. The claimant is, in effect, simply seeking to relabel existing claims and does not seek to add new claims or plead new facts.[17]The issue with Category B (and Category C) has arisen because the claimant’s further particulars have adopted a narrative style of pleading which is disapproved by the higher courts because it sets out a story without identifying what matters are said to be acts of discrimination and what are background facts. In the present case, this has meant that the respondent and the Tribunal have to try to extract what they understand to be the allegations of discrimination which, strictly speaking, neither the respondent nor the Tribunal should have to do. It is for the claimant to set out her case. However, the Tribunal does acknowledge that the claimant is a party litigant and so she has been given considerable leeway on this as well as assistance in identifying the basis of her case.[18]The Tribunal considers that there is little prejudice to the respondent in granting the application and, to be fair, the respondent did not particularly oppose the matters falling in Category B. The respondent is already dealing with these matters under existing claims and it is mostly a matter of submissions as to whether the relevant facts meet the different statutory tests that would apply if the application is allowed.[19]For these reasons, the Tribunal grants the claimant’s application in respect of Category B.[20]The allegations falling within Category B are as follows (using the numbering paragraphs): i. Paragraphs 2, 3, 6, 8, 12, 13 & 17. i. Paragraphs b), c)2 & d) only in respect of the allegation of 22 April 2024. i. Paragraphs 28a), h) [which is duplicated at i)]. n), s) [which is repeated at w), & t)[21]Third, Category C are allegations which do not appear on the list of issues but arise from facts pled in the claimant’s further and better particulars. As noted above, the issue with these have arisen from the narrative style pleadings which has required the respondent and Tribunal to try to identify what claims the claimant is seeking to advance.[22]The claimant would face some hardship if the application is not granted in respect of Category C as she could not pursue these matters as acts of discrimination. However, any such hardship is limited given the very extensive claim the claimant is already pursuing under multiple types of discrimination and which she would be able to continue to pursue. Further, the application is respect of these has come very late, during the final hearing and the claimant’s evidence-in-chief, in circumstances where the claimant has had ample opportunity to comment on and contribute to the content of the list of issues.[23]On the other hand, the respondent would also face limited hardship in having to defend these claims. They are new causes of action but the respondent is already on notice of the facts giving rise to these claims and there has been no suggestion that they cannot defend these additional causes of action as part of the larger claim they are already defending.[24]In these circumstances, the Tribunal considers that the balance of prejudice falls, very narrowly, in the claimant’s favour and it grants the application in respect of Category C.[25]The allegations falling within Category C are as follows (using the numbering paragraphs): i. Paragraphs 4, 14, 15, 16, 18 and 19. b. Harassment i. 28u)[26]Fourth, and finally, Category D are allegations which are not on the list of issues and which arise from new facts not set out in the further particulars lodged earlier in the case management process. The claimant did assert that all of the allegations which she sought to add as part of the present application had been set out previously but did not take the Tribunal to where she said these had been pled in the previous documents. The Tribunal carried out its own review of the claimant’s further particulars and could not find anything which set out the factual assertions now being made.[27]The Tribunal considers that there is a much greater prejudice to the respondent in allowing the application in respect of Category D. The respondent would effectively have to start from the beginning in investigating these and gathering evidence to refute these allegations. Further, a number of the allegations in Category D are so broad and vague that the respondent could not properly reply to them (for example, general assertions of “passive aggressive” comments being made with no detail of when or what was being said).[28]There is a prejudice to the claimant in being unable to pursue claims based on these allegations but, as noted above, the claimant is not precluded from advancing her existing claim which is extensive in the allegations being made.[29]Further, the application to add entirely new claims has come very late and during the course of the claimant’s evidence. The claimant has had more than ample opportunity to add these allegations throughout the case management process and these are all factual matters which would have been in her knowledge when the claim was lodged nearly a year ago. There have been multiple case management hearings since then and correspondence during any of which the claimant could have raised these matters.[30]For these reasons, the Tribunal considers that the balance of prejudice in respect of Category D falls in favour of the respondent and the application is refused in respect of this category.[31]The allegations falling within Category D are as follows (using the numbering paragraphs): i. Paragraphs 1, 5, 7, 9, 10 & 11. i. Paragraphs c1), d) in respect of the allegation of 15 April 2024 & e) . i. Paragraphs 28b), c), g), i), j), l), o), p) q) & r)[32]The claimant had also included factual amendments to paragraph 29 of the list of issues but this paragraph sets out a legal question and not a factual allegation (that is, whether any of the factual allegations listed in paragraph 28, if upheld, amount to unwanted conduct for the purposes of s26 of the Equality Act). The Tribunal is not varying the legal issues in the case which are set by the various statutory tests.[33]As a result of the Tribunal’s decision above, the list of issues requires to be varied. A revised list of issues is appended to this judgment. The revised list of issues adds those allegations falling within Categories B and C (reframed in more neutral terms, for example, describing matters as allegations rather than facts) and also adds the claim of constructive dismissal which was added by the earlier amendment of the case. APPENDIX List of Issues (revised 16.9.25) Time limits[1]Given the date the claim form was presented and the dates of early conciliation, any complaint about something that happened before 11 May 2024 may not have been brought in time.[2]Were the discrimination and victimisation complaints made within the time limit in section 123 of the Equality Act 2010? The Tribunal will decide:a. Was the claim made to the Tribunal within three months (plus early conciliation extension) of the act to which the complaint relates?b. If not, was there conduct extending over a period?c. If so, was the claim made to the Tribunal within 3 months (plus early conciliation extension) of the end of that period?d. If not, were the claims made within a further period that the Tribunal thinks is just and equitable? The Tribunal will decide: why were the complaints not made to the Tribunal in time? In any event, is it just and equitable in all the circumstances to extend time? Direct disability discrimination (Equality Act 2010, s13)[3]Did the Respondent do the following things:a. On 16 May 2023 the claimant’s manager Angela Gillespie introduced the claimant to the team by saying ‘This is Joanne Byrne and sheb. On around 15 May 2023 (first day of employment) the claimant was not given a buddy to work with them, for a two-month period.c. In around June / July 2023 on the sales floor the claimant was singled out by Angela Gillespie for making a mistake. The claimant does not know if any other team members heard this.d. On 28 March 2024 in an in-person meeting with Alan McMenemy the claimant’s request to move to a different team was blocked. The claimant’s manager Angela Gillespie was also present at the meeting.e. On 28 March 2024, 4 April 2024, 11 April 2024, 24 June 2024 and 1 May 2024, whilst in Team meetings, one to one meetings and on the sales floor, Angela Gillespie highlighted the impairments from the Claimants disability.f. On 24 April 2024, 1 May 2024 and on various dates between 14-18 June 2024, at meetings with HR and Alan McMenemy, Angela Gillespie used the Claimants impairments from her disability to show that she was unsuitable for her role.g. On 24 April 2024 the claimant was put on a Performance Improvement Plan.h. On 11 June 2024 the claimant was advised she was not allowed to continue to work from home.i. On 24 June 2024 Angela Gillespie highlighted the claimant’s symptoms of dyslexia and ADHD in the morning team meeting and again in the afternoon team meeting by saying to the claimant “I was speaking there” and “That was really rude”.j. On 27 July 2024 during a phone call between the claimant, Mr McMenemy and Alan Mathie the respondent refused the claimant’s request to move to a different team.k. On various dates between Nov 2023 and April 2024, Ms Gillespiel. On 11 April 2024, Ms Gillespie singling the claimant out, criticizing how the claimant articulates information and making the claimant feel uncomfortable;m. On 22 or 25 April 2024, AG made comments to the team about ‘not knowing who you work with’, people having mental health issues and ‘Joanne being so sensitive’. Was that less favourable treatment?[5]The Tribunal will decide whether the claimant was treated worse than someone else was treated. There must be no material difference between their circumstances and the claimant’s. If there was nobody in the same circumstances as the claimant, the Tribunal will decide whether they were treated worse than someone else would have been treated.a. In relation to the allegation on 15 May 2023 about the introduction to the team, the claimant relies on actual comparators, these being Mia, Brendan and Dan.b. In relation to not being given a buddy the claimant says they were treated worse than Daniel, Brendan and a female member of staff (all of whom were new members of staff in the claimant’s team) who were given a buddy. The claimant also relies on a hypothetical comparator.c. In relation to the allegation in June / July 2023, the claimant has not named anyone in particular whom they say was treated better than they were. The claimant relies on a hypothetical comparator.d. In relation to the request to move to a different team being blocked / refused (28 March 2024 and 27 July 2024) the claimant says they were treated worse than Liam and Ben who were moved to a different team. The claimant also relies on a hypothetical comparator.e. In relation to the allegations set out at paragraphs 3(e) and 3(f) above, the claimant relies upon an actual comparator, Mr Mark Oliver, and a hypothetical comparator.f. In relation to the allegations set out at paragraph to 3(g) above, the claimant relies upon a hypothetical comparator.g. In relation to the allegation set out at paragraph 3(h) above, the claimant relies upon an actual comparator, Mark Oliver, and a hypothetical comparator.h. In relation to the allegation on 24 June 2024 the claimant has not named anyone in particular whom they say was treated better than they were. The claimant relies on a hypothetical comparator. If so, was it because of disability?[7]Did the respondent’s treatment amount to a detriment? Discrimination arising from disability (Equality Act 2010 s15)[8]Did the respondent treat the claimant unfavourably by:a. On 28 March 2024 in an in-person meeting with Alan McMenemy the claimant’s request to move to a different team was blocked. The claimant’s manager Angela Gillespie was also present at the meeting, and the claimant alleges Ms Gillespie made inappropriate comment regarding her inability to retain information.b. On 24 April 2024 the claimant was issued with a Performance Improvement Plan, due to begin in May 2024.c. On 27 July 2024 during a phone call between the claimant, Mr McMenemy and Alan Mathie the respondent refused the claimant’s request to move to a different team.d. Ms Gillespie belittling the Claimant by; i. On 4 April 2024 calling out false trial and demo figures amongst the team, as if the claimant had more than others, and failing to mention discrepancies in the figures; ii. On 11 April 2024, singling the claimant out, criticizing how the claimant articulates information and making the claimant feel uncomfortable; iii. On 12 April 2024 highlighting call numbers, not demo numbers.e. On 28 March or 28 April 2024 Angela Gillespie stated to the claimant ‘the problem we have here Joanne is you don’t retain information’, ‘this business will never consider you for another role’ and ‘Everyone in this business has commented how much time I spend with you’.f. On various dates between Nov 2023 and April 2024, Ms Gillespieg. AG allegedly said “I told you this” in team settings on multiple occasions, allegedly creating a false impression of forgetfulness when the claimant says she was never given clear communication and instruction. January - March 24.h. On 1 May 2024 - AG’s meeting notes recorded “Joanne wasn’t able to articulate a clear reason” the does not reflect the true content of the meeting which was me raising unfair lead distribution.i. On 10 May 2024, AG had left a call blaring on her computer (AG’s desk being near the claimant’s) and locked her screen. The claimant was going on to her own call, and asked AG to end her call. AG made a face behind the claimant’s back in response.j. On 24 April 2024 the claimant was put on a Performance Improvement Plan.k. On an unspecified date, Claimant was told she could not move teams while on a Performance Plan.l. On 17 June 2024, in a meeting with HR, AG allegedly reported false figures (calls and targets), which is said to have undermined the claimant’s work. Call volume was is alleged to be 227 and manager allegedly reported 108.m. In the same meeting, AG, with HR present, allegedly said another team manager was not recruiting when it had been announced to all employees on 3rd May that he was recruiting two roles. It is further alleged that AG stated that the claimant was “not suitable as there’s a higher volume of leads” linked to a reasonable adjustment it is said was agreed in October 2023. Job role for the development team was posted online 21st June 2024.n. Respondent allegedly failed to intervene after repeated reports of the AG’s alleged conduct (March–June 2024).o. The claimant was paid SSP when she went off sick as a result of AG’s alleged conduct.p. In a call on 17 July 2024, HR allegedly ignored concerns about confidentiality breaches, SSP, and the retaliation of a performance plan, and is said to have provided no support other than to “wait” until sales director AM returned from annual leave.q. Whether the respondent had acted in a manner amounted to a fundamental breach of contract (that is, a breach of the duty of trust and confidence) and whether the claimant resigned as a result of that breach (constructive dismissal).[9]Did the following things arise in consequence of the claimant’s disability:a. The need for structure and routine, and the need for that structure and routine not to be disrupted, including being able to plan the diary.b. The need to have time to plan and prepare calmly again without disruption.c. The period of sickness from the end of June to August 2024.d. Difficulties with regulating emotions (including interrupting others).e. Degree of distress experienced and response to adverse events.f. Difficulties with processing and retaining information, requiring repeat clarification of information.[10]Was the unfavourable treatment because of any of those things? Did the respondent block the request to move team because of those things?[11]Was the treatment a proportionate means of achieving a legitimate aim? The respondent denies that Ms Gillespie belittled the claimant as alleged or made any inappropriate comment. Otherwise, in respect of the alleged unfavourable treatment set out at paragraphs 8, the respondent says that its aims were;a. In respect of 8 a) and c) - To ensure that the Market Engagement and Market Development Teams were comprised of employees whose skill set best suited the needs of the respective Teams and thus optimized operational success and efficiency, andb. In respect of 8 b) – To ensure that the claimant was given every opportunity to better her performance and to allow her to succeed in the role.[12]The Tribunal will decide in particulara. was the treatment an appropriate and reasonably necessary way to achieve those aims;b. could something less discriminatory have been done instead, andc. how should the needs of the claimant and the respondent be balanced?[13]Did the respondent know, or could it reasonably have been expected to know that the claimant had the disability? From what date? Indirect discrimination (Equality Act 2010 section 19)[14]A “PCP” is a provision, criterion or practice. Did the respondent have the following PCP(s);a. Providing no policy of induction or support for new employees.b. Not addressing employee concerns and not taking steps to protect employees who raise concerns. Did the respondent apply the PCP to the claimant?[16]Did the respondent apply the PCP to persons with whom the claimant does not share the characteristic or would it have done so?[17]Did the PCPs put persons with whom the claimant shares the characteristic at a particular disadvantage when compared with persons with whom the claimant does not share the characteristic, in that;a. In respect of the PCP at paragraph 14 (a), the alleged lack of induction or support leads to a higher likelihood of persons who share the characteristic reaching breaking point in consequence and;b. In respect of the PCP at paragraph 14 (b), this practice will cause matters to escalate and become more of an issue for people with the claimant’s disability.[18]Did the PCP put the claimant at that disadvantage?[19]Was the PCP a proportionate means of achieving a legitimate aim? The respondent denies that it has no policy of induction or support for new employees, and denies that it has a practice of not addressing employee concerns and not taking steps to protect employees who raise concerns, and thus advances no legitimate aim defence.[20]The Tribunal will decide in particular;a. was the PCP an appropriate and reasonably necessary way to achieve those aims;b. could something less discriminatory have been done instead andc. how should the needs of the claimant and the respondent be balanced? Reasonable Adjustments (Equality Act 2010 sections 20 & 21)[21]Did the respondent know, or could it reasonably have been expected to know that the claimant had the disability? The claimant says from 15 May 2023.[22]A “PCP” is a provision, criterion or practice. Did the respondent have the following PCP(s):a. Requiring that the claimant work in Angela Gillespie’s team.b. Requiring the claimant to work from the office.c. From around late March 2024 giving more than 10 leads per day.d. Ms Gillespie’s practice of communicating adverse news shortly before important meetings, making physical noise and otherwise causing disturbance just before meetings.[23]Did the PCPs put the claimant at a substantial disadvantage compared to someone without the claimant’s disability, in that:a. The claimant was being subjected to harassment and psychological abuse by Ms Gillespie?b. The claimant was less productive in an office environment where she had to commute as there is less structure?c. The claimant could not reasonably be expected to cope with the number of leads she was given? Andd. The claimant was unsettled by Ms Gillespie’s practice as set out at 22(d)?[24]Did the respondent know or could it reasonably have been expected to know that the claimant was likely to be placed at the disadvantage?[25]What steps could have been taken to avoid the disadvantage? The claimant suggests:a. Moving the claimant to another team (the development team).b. Allowing the claimant to work from home consistently on set days.c. Giving the claimant 10 or fewer leads to work on per day andd. Ms Gillespie to be instructed effectively and to ensure that she did not communicate to the claimant adverse news shortly before important meetings, make unnecessary physical noise or otherwise cause disturbances to the claimant just before meetings.[26]Was it reasonable for the respondent to have to take those steps and when?[27]Did the respondent fail to take those steps? Harassment related to disability (Equality Act 2010 section 26)[28]Did the respondent do the following things:a. On 16 May 2023 the claimant’s manager Angela Gillespie introduced the claimant to the team by saying “This is Joanne Byrne and sheb. In around June / July 2023 on the sales floor the claimant was singled out by Angela Gillespie for making a mistake. The claimant does not know if any other team members heard this.c. On 25 March 2024, Angela Gillespie asked the claimant why she was not paying her (AG) more attention. This question was allegedly asked multiple times.d. At a team meeting on 11 April 2024, when the claimant asked a question, Angela Gillespie pushed back several times and said that the claimant could not articulate the question or that she could not understand what the claimant was asking.e. On the same date, the claimant was giving a talk on digital integration, and Angela Gillespie asked her if she knew what it was and to explain it. When the claimant gave an explanation, AG stated that she knew that the claimant did not know what it was and laughed at her.f. On the same date, AG said to the claimant that she had just sent the claimant 20 sales leads (which was more than the claimant should have been sent) and asked her to send them back. The claimant had to send them back individually because she did not have the functionality to send them back as a whole. AG asked the claimant to send the leads back multiple times and the claimant believes that this was done to provoke her.g. On the same date, when the claimant became frustrated with AG, she was taken into the office and made to feel intimidated by AG, who said that she was a manager and the claimant could not behave ‘like that’.h. On 5 April 2024, AG asked the claimant when she last had a boyfriend, when she last had a partner and the last time anyone asked her out. The claimant believed that AG was recording the conversation.i. On 10 April 2024 AG informed the claimant that she was recording with HR mistakes made by the claimant in account profiles and that she had done so six times. This was done before the claimant was going into a meeting.j. On the same date the claimant asked AG a question. In front of the team, AG made it difficult and created the perception that the claimant could not articulate the question.k. On the same date, AG had left a call blaring on her computer (AG’s desk being near the claimant’s) and locked her screen. The claimant was going on to her own call, and asked AG to end her call. AG made a face behind the claimant’s back in response.l. On 11 April 2024, AG compared the claimant’s results with others in the team.m. In April 2024 AG isolated the claimant from the rest of the team.n. On 12 April 2024, AG called out the claimant’s results in front of the team but only highlighted the bad parts and not the good parts.o. On 15 April 2024, AG made comments about people who ‘throw colleagues under the bus’, and that people forget but she did not.p. On 24 April 2024, after a meeting with HR and Alan McMenemy, AG repeatedly asked the claimant who her manager had been when she worked at Dell.q. On 25 April 2024, AG made comments to the team about ‘not knowing who you work with’, people having mental health issues and ‘Joanne being so sensitive’.r. On 28 March 2024 Angela Gillespie stated to the claimant ‘the problem we have here Joanne is you don’t retain information’, ‘this business will never consider you for another role’ and ‘Everyone in this business has commented how much time I spend with you’.s. On 24 June 2024 Angela Gillespie highlighted the claimant’s symptoms of dyslexia and ADHD in the morning team meeting and again in the afternoon team meeting by saying to the claimant “I was speaking there” and “That was really rude”.t. On various dates between Nov 2023 and April 2024, Ms Gillespieu. On 1 May 2024, Mark Oliver asked to attend a department meeting remotely as he had other meetings. The claimant asked for the same for the same reason. At the department meeting, AG said that Mark Oliver could not come because he had a demo booked and that the claimant could not come because she was too busy.v. On 1 May 2024 Angela Gillespie told the team that the claimant was unable to come to a meeting, despite having told the claimant that she could attend a meeting at her desk.w. On 16 May 2023 the claimant’s manager Angela Gillespie introduced the claimant to the team by saying ‘This is Joanne Byrne and shex. On 11 April 2024, singling the claimant out, criticizing how the claimant articulates information and making the claimant feel uncomfortable;y. On 12 April 2024 highlighting call numbers, not demo numbers.z. On 26 July 2024 the claimant asked HR what adjustments could support her return and she alleges that Alan Mathie replied “you’ll be put right back on a performance plan, what did you think would happen” and in relation to a grievance enquiry he allegedly replied “pfft, let’s see how far you get with a grievance when you’re on a performance plan.” aa. On 1st May 2024 - AG’s meeting notes recorded “Joanne wasn’t able to articulate a clear reason” the does not reflect the true content of the meeting which was me raising unfair lead distribution. bb. On 17 June 2024, AG, with HR present, allegedly said another team manager was not recruiting when it had been announced to all employees on 3rd May that he was recruiting two roles. It is further alleged that AG stated that the claimant was “not suitable as there’s a higher volume of leads” linked to a reasonable adjustment it is said was agreed in October 2023. Job role for the development team was posted online 21st June 2024. If so, was that unwanted conduct? Did it relate to disability?[31]Did the conduct have the purpose of violating the claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the claimant?[32]If not, did it have that effect? The Tribunal will take into account the claimant’s perception, the other circumstances of the case and whether it is reasonable for the conduct to have that effect. Victimisation (Equality Act 2010 section 27)[33]Did the claimant carry out a protected act as follows:a. On 28 March 2024 in an in-person meeting with Mr McMenemy (Ms Gillespie also being present) the claimant asked to move team because of the conduct of the manager Ms Gillespie (protected act 1).b. On 15 April 2024 in a meeting with Mr McMenemy (nobody else present) the claimant told Mr McMenemy about the conduct of Ms Gillespie and referred to her dyslexia and ADHD (protected act 2).c. On 3 May 2024 in an email from the claimant to Mr Mathie stating that the claimant was leaving the building as they did not feel safe (protected act 3).[34]Did the respondent do the following things after the protected act:a. The claimant was left in Ms Gillespie’s team (protected act 1, 2 and 3)b. The claimant was put on a performance plan (protected act 1, 2 and 3)c. The claimant was denied leads (protected act 1, 2 and 3)d. The claimant was not included in all team meetings (protected act 1, 2 and 3)e. The claimant had to leave her place of work (protected act 3)f. Place the claimant on a Performance Plan (protected act 1).[35]By doing do, did it subject the Claimant to detriment?[36]If so, was it because the claimant did a protected act? Remedy for discrimination or victimisation[37]Should the Tribunal make a recommendation that the respondent take steps to reduce any adverse effect on the claimant? What should it recommend?[38]What financial losses or other losses has the discrimination or victimisation caused the claimant?[39]Would it be just and equitable to increase or decrease any award payable to the claimant and, if so, to what extent? Should interest be awarded? How much?[1]The claimant has made an application to amend her case to add a claim under s39(2)(c) of the Equality Act 2010 that she was dismissed and that this dismissal amounted to unlawful discrimination. The application is opposed by the respondent. The application was dealt with at the outset of the final hearing on 8 September 2025.[2]The Tribunal considers that it would assist to set out the terms of the amended claim which the claimant seeks to pursue. This clarifies the terms of the claim that the claimant seeks to add which is relevant to the issues to be addressed in determining the amendment application.a. The claimant alleges that the acts of discrimination which form the basis of her existing claims under the Equality Act (as set out in the list of issues at pp98-108 of the respondent’s file of productions) amount to a fundamental breach of contract and that she resigned as a result. The claim is, therefore, one of constructive dismissal.b. In particular, as a result of two telephone calls held on 16 or 17 July 2024 and 27 July 2024, the claimant decided that nothing was going to improve in the workplace and so she decided to resign.c. The call on 27 July 2024 was with Alan McMenemy and Alan Mathie. She alleges that she asked what adjustments would be made when she returned to work and was told that she would be put back on a performance plan. The claimant alleges that she was not on a performance plan and this was retaliation. She alleges that she mentioned raising a formal grievance and was told “let’s see how you get on with that when on a performance plan”. As a result of this call, the claimant resigned.d. The claimant alleges that her dismissal amounts to discrimination arising from disability.[3]The Tribunal has a general power to make case management orders which includes the power to allow amendments to a claim or response in terms of Rule 30.[4]The case of Selkent Bus Co Ltd v Moore [1996] ICR 836 confirms the Tribunal’s power to amend is a matter of judicial discretion taking into account all relevant factors and balancing the injustice and hardship to both parties in either allowing or refusing the amendment. The case identifies three particular factors that the Tribunal should bear in mind when exercising this discretion; the nature of the amendment; the applicability of any time limits; the timing and manner of the amendment.[5]The Tribunal considers that it is appropriate to address each of the specific factors highlighted in Selkent and then take those into account in balancing the injustice and hardship to all sides.[6]First, there is the nature of the amendment itself which is to add a new cause of action. However, the new cause of action arises almost wholly from the same factual matrix as the existing claims under the Equality Act. With the exception of the phone call of 27 July 2024, the Tribunal would not have to hear any additional evidence to determine the new claim. The main difference would be in the submissions parties would make in respect of the new claim and this would not significantly increase any submissions.[7]Further, the Tribunal does note that the claimant had indicated in her ET1 that she had wished to pursue a claim about her dismissal but had framed this as unfair dismissal under the Employment Rights Act rather than a discriminatory dismissal under the Equality Act. The ET1 does plead the fact of her resignation flowing from the respondent’s alleged actions.[8]The Tribunal bears in mind that the claimant is party litigant who would not be familiar with the details of the different causes of action.[9]Second, given that the amendment seeks to raise a new cause of action, there is the issue of the applicability of time limits. There is undoubtedly a question as to whether the new cause of action is time barred.[10]There are, however, a number of caveats or qualifications in relation to the issue of time bar that is relevant to the Tribunal’s consideration.a. The first caveat is that the issue of time limits is already an issue to be determined in this case in respect of the existing claims of discrimination. The fact that it will need to be addressed in relation to the new claim does not cause either party any particular prejudice.b. The second caveat or qualification is that the Tribunal does have a broad discretion to hear a claim out of time under s123(1)(b) of the Equality Act and, again, this is already an issue to be determined in respect of the existing claims.c. The third caveat and qualification is that the fact that a claim lodged now would be out of time is not fatal to the application to amend (Transport and General Workers Union v Safeway Stores Ltd UKEAT/0092/07).d. The fourth and final caveat in respect of time limits is that, if the amendment is allowed, the respondent is not deprived of the opportunity to raise the time bar defence and this defence (including the Tribunal’s discretion to hear any claim out of time) can be determined subsequently (Galilee v Commissioner of Police of the Metropolis [2018] ICR 634 and the more recent decision of Douglas v North Lanarkshire Council [2024] EAT 194).[11]Third, there is the factor as to the timing and manner of the application. It is not in question that this application was made very shortly before the final hearing was due to commence after there had been a very extensive case management process in which the claimant was being asked to clarify her claims.[12]However, the Tribunal bears in mind that, until recently, the claimant had been proceeding under the misunderstanding that she would be pursuing an unfair dismissal claim. It was only after the last case management hearing that the Tribunal struck that claim out because the claimant did not have the necessary length of service to pursue such a claim.[13]The application to amend has followed from that and, although there was some delay in making the application once it would have become clear to the claimant that it was required, this does explain why the application was not made earlier in the process.[14]Turning to the balance of injustice and hardship between the parties, the Tribunal considered that there would be a significant injustice and hardship to the claimant in refusing the application as this would prevent her from pursuing a potentially valuable claim.[15]The Tribunal does accept that the respondent would face a hardship in that they now have to deal with a claim (and face a liability) that they did not previously. However, the Tribunal does not consider that this is hardship outweighs the hardship to the claimant; the respondent has the opportunity to defend the claim and there was no suggestion that they are somehow prevented from doing so or that their ability to do so was prejudiced given that the new claim effectively arises from the same factual matrix as the existing claims.[16]This is not a case where the respondent would effectively be put back to the start of the process or that there would be a need to wholly postpone the present hearing. The Tribunal considers that any prejudice to the respondent in having to prepare to answer the allegation about the telephone call of 27 July 2024 is minimal given that it relates to one phone call. Any prejudice can be avoided by giving time to the respondent to look into this matter and instruct their representative accordingly.[17]The Tribunal considers that, although there may be some injustice and hardship to the respondent in allowing the amendment, this does not outweigh the hardship and injustice to the claimant in refusing it.[18]In these circumstances, taking account of all the matters set out above, the Tribunal allows the application under Rule 30 to add the claim of dismissal under s39(2)(c) of the Equality Act 2010. 9 September 2025