Ms W Hesketh v Glasgow Caledonian University: 4112743/2018
EMPLOYMENT TRIBUNALS (SCOTLAND)
Case No 4112743/2018
Between
Ms W HeskethClaimantGlasgow Caledonian UniversityRespondent
Before
Employment Judge BuzzardDate 17 December 2019
JUDGMENT
[1]The complaint of unfair dismissal having been withdrawn by the claimant, is dismissed under Rule 52 of the Rules contained in Schedule 1 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013. Date of Judgment : 23 November 2018[2]JUDGMENT OF THE EMPLOYMENT TRIBUNAL The judgment of the Employment Tribunal is that the claimant’s application to amend as set out in the claimant’s Scott Schedule and Further and Better Particulars dated 26 September 2019 is allowed to the extent that it seeks to clarify the existing claims but is not allowed to the extent that it introduces claims of equal pay, discrimination arising from disability and harassment under the Equality Act 2010.
REASONS
[1]The claimant sent a claim form to the Tribunal’s office on 24 July 2018. The respondent sent a response on 28 August 2018.[2]The parties completed agendas for a preliminary hearing for case management on 11 October 2018 (the October PH). The claimant represented herself. Mr McDowell, solicitor represented the respondent. E.T. Z4 (WR)[3]At the October PH there was discussion about the claims being brought by the claimant including the unfair dismissal claim concerning the researcher post.[4]In relation to the “discrimination claims”, Employment Judge Buzzard noted that the claimant made claims of discrimination against the respondent based on the grounds of: disability; sex; the fact that she was part time; and the fact that she worked on a fixed term contract. Employment Judge Buzzard also noted that he had endeavoured to discuss the specific basis of the claims and that the discrimination claims based on part time and fixed term status were not discussed in detail.[5]Also discussed was the ongoing indirect discrimination in relation to recruitment and promotion which the claimant encountered. The claimant agreed that she would specify the actual acts and omissions of the respondent from September 2015 onwards on which she relied in her claims of indirect discrimination.[6]There was also discussion about additional discriminatory claims arising after the claimant sent her claim form to the Tribunal on 24 July 2018. She mentioned the recruitment process in August/September 2018 which she said was indirectly discriminatory and that the respondent had failed to make reasonable adjustments in relation to the interview process. She also said that she may make a claim of victimisation as she did not understand why she had not been successful in securing further work. There was discussion about the time for presenting these additional discriminatory claims was three months from the date of the act of discrimination. Accordingly, the claimant was within time to make these additional claims provided they were raised within three months. Given that they related to the same respondent and the same issues, the claimant was granted an opportunity to indicate that she wishes to amend her claim to include these further claims.[7]On 24 October 2018, the claimant made an application to amend her claim form to add the claims of failure by the respondent to make reasonable adjustments and indirect discrimination in respect of the interview for the position of lecturer in law on 20 September 2018; and victimisation by the respondent in that the claimant was not re-employed in the criminology/sociology group following submission of her claim for discrimination (the October Amendment).[8]After the discussion at the October PH about the unfair dismissal claim in relation to the researcher post which ended on 20 July 2018, the claimant also withdrew this claim. It was dismissed.[9]On 1 November 2018, the respondent confirmed that it had no objection to the October Amendment intimated. The respondent was allowed 21 days to respond to the amendment which it did on 10 December 2018.[10]Having agreed that at the October PH that she would specify the actual acts and omissions of the respondent from September 2015 onwards on which she relied in her claims of indirect discrimination, on 8 November 2018 the claimant intimated a Scott Schedule (the November SS).[11]A preliminary hearing was fixed for 7 March 2019 to determine the issue of disability status which was postponed for a medical assessment to take place.[12]On 20 July 2019, the claimant sent an “amended” Scott Schedule (the July SS) which she asked to replace the November SS. The claimant made an application to amend her claim (the July Amendment).[13]The respondent said that the extent to which the July SS sought to clarify the claimant’s existing claims, there was no opposition. The respondent said that the claimant’s application to amend went further in that it sought to add a fifth potential disability (dyscalculia) and add new claims against the respondent such as for equal pay and dismissal for asserting a statutory right. The respondent said that these claims were time barred and that there would be hardship and injustice to the respondent in allowing the application to amend in its entirety.[14]At a preliminary hearing for case management on 16 August 2019 (the August PH), Employment Judge Gall noted that the claimant did not accept that the equal pay claim was a new ground of claim. The claimant also mentioned that she had been thinking of adding a further act which she regarded as discriminatory. It was agreed that a preliminary hearing would be set down for one day in order to consider the claimant’s application to amend: the July Amendment. Employment Judge Gall expressed concern that there were various versions of the Scott Schedule that had appeared. In addition, the claimant had recently lodged further documents comprising of a cast list; a chronology of facts; and documents list. The status of these documents was uncertain and required to be clarified at the preliminary hearing.[15]On 3 September 2019, a notice of preliminary hearing was sent to the parties confirming that the Tribunal would determine the following preliminary issues:a. Whether the claim currently comprises a claim under the equal pay provisions and if it does not whether the claimant is permitted to include such a claim; andb. Whether there will be a separate preliminary hearing set down to consider time bar or whether the hearing will be arranged under reservation of time bar.[16]On 26 September 2019, the claimant submitted a further Scott Schedule (the September SS). She also submitted a document headed “Further and Better Particulars”. The respondent said that it opposed the “Further and Better Particulars” as it introduced new legal claims and new factual evidence to existing claims and should be considered at the preliminary hearing on 20 November 2019.[17]On 30 October 2019, the claimant having considered the matter withdrew from her proposed application to amend the claim in respect of unfair dismissal from her role as lecturer. The claimant confirmed that this claim was in respect of non-renewal of her work as a lecturer and was already part of her existing claim of victimisation which was set out in the claim form after the October Amendment had been allowed.[18]Before hearing the parties’ submissions on the claimant’s application to amend the claim form, the parties clarified that the application to amend which I was considering was detailed in the September SS and “Further and Better Particulars” provided by the claimant to the respondent and the Tribunal in September 2019.[19]The parties had prepared a joint set of productions for which extended to 547 pages. Application to amend the claim form[20]The claimant helpfully prepared her submissions in writing, a copy of which was provided to me and Ms Stobart.[21]In relation to the equal pay claim the claimant’s said that she made a claim for equal pay in her claim form sent on 24 July 2018. Her understanding is that the time limit for presenting an equal pay claim is six months after dismissal. Her position was that she was dismissed from her role as lecturer on 30 September 2018.[22]The claimant said that she also referred to her equal pay claim in the November SS, both of which were submitted to the Tribunal within the six month-time limit. The claimant said that the respondent was aware of this as the respondent acknowledged the equal pay claim in the amended response on 10 December 2018.[23]The claimant helpfully took me through the productions pointing out why she considered that the equal pay claim was raised from the outset.[24]If I did not agree the claimant’s alternative argument was that I should not treat this claim as a new claim but merely altering the basis of an existing claim. She considered that amendments falling within this category were not affected by time limits. The original claim remains intact and all that was sought to be done is to change the grounds on which that claim is being based i.e. relabelling.[25]The claimant said that in the section of the claim form headed type and details of claim, she had ticked the box for sex (including equal pay) and in the paper apart, the claimant said that she referred to a comparator (Dr Bowness) the difference in treatment between her and her comparator in relation to the length of contract the fact that she was not employed over the summer whereas he was.[26]The claimant stated that the respondent acknowledged Dr Bowness as her comparator in the original response and the amended response. The claimant also referred to her agenda discussed at the October PH in which she referred to sex discrimination because of the difference in treatment between herself and Dr Bowness. The claimant acknowledged that she did not call this equal pay but she referred to “fair pay and associated benefits”. The claimant then referred to the November SS where equal pay is listed as a type of claim. At this point, the claimant refers to Dr Buckle as a comparator for equal pay.[27]The claimant then referred investigation report into an internal grievance the outcome of which was intimated to the claimant on 2 May 2019. She claimant said that this supported her position that the respondent was aware that she had raised a complaint about equal pay.[28]If I did not agree then I was invited to consider that the respondent would not be put at a disadvantage to examine this issue now as the case was still at a preliminary stage in the process and the respondent had the benefit of these facts for over a year and a half and also had the benefit of a year to conduct the grievance process.[29]I was asked to consider that it was just and equitable to allow the equal pay claim to proceed if I was not of the view the equal pay claim had not already been raised.[30]The claimant said that she was a party litigant unfamiliar with Scott Schedules. She had problems with their tabular nature because her disability. She thought it would make better sense if she re-wrote it. From Google she thought it was a travelling document. She also understood that she was able to amend the Scott Schedule as and when she needed to. As time has gone on, she has had more time to research the law since the November SS.[31]The claimant explained that the July SS was an attempt to give more detail of the legal basis of her equal pay claim or the addition or substitution of labels to the facts already pled in the November SS. In the July SS, the claimant identified her work with her comparator, Dr Buckle. It also provides details of the equal pay claim with Dr Bowness who was originally referred to the claim form and the November SS. The claimant’s position was that the claim currently comprises an equal pay claim. The claimant says that the pay claim is in time in that it is just a relabelling exercise based on facts already given. Objection to the application[32]Ms Stobart explained that the respondent’s understanding of the claim presented in July 2018 was that it related to the claimant’s status as a casual worker against other staff who were given employment contracts.[33]The respondent acknowledged that the claimant ticked the box at 8.1 of the of the claim form but there were no details of an equal pay claim in the paper apart. There are no statements which specifically relate to equal pay, yet all the other claims are well articulated. While pay is mentioned, it is not in relation to an equal pay claim but in comparison with permanent members of staff (which is not gender related) and in relation to a fixed term contract. There is also reference to the fact that the difference in treatment between her and Dr Bowness could be sex related. The statement referred to the claimant feeling that she had been treated less favourably because she was a woman or because she was disabled.[34]The respondent also acknowledged that the claimant referred to Dr Bowness as a comparator but that was in relation to a direct sex discrimination claim. The reference to pay is in the context of casual employment versus permanent employment, there is also reference to female comparators (Katie Proctor and Ruth Lightbody). The claim was not understood to be one of equal pay but rather about employment status, and discrimination (indirect and direct) because she is a lone parent of a disabled child, gender and her disability.[35]The October Amendment sets out new facts which post-date the presentation of the claim form to support continued indirect discrimination and new claims of failure to make reasonable adjustments and victimisation. It is a two-page document which demonstrates that the claimant understands how to apply to amend the claim form; the format that it should take; and the need to give reasons for the application. This application was unopposed by the respondent.[36]In relation to the November SS, it refers to the lack of employment rights, but it is a broad claim against all employees who had better contracts than the claimant. The claimant refers to the fact that she feels disadvantaged about the way her contract works in comparison with others and that she should have been given a permanent contract. This is not an equal pay claim. The claimant refers to Dr Bowness and the main point is that she should not be on a fixed term contract. This also includes female employees. It is difficult to understand that this could be read as an equal pay claim. There was several averments which relate to indirect discrimination claims rather than equal pay. If what the claimant intended was that she was bringing an equal pay claim that had not been articulated.[37]In the claim form the claimant refers to her comparator as Dr Bowness (in the context of direct discrimination) but in the November SS, she mentions for the first time the comparator of Dr Buckle (and other full-time members of staff).[38]In the September SS the clamant again refers to Dr Buckle who was not mentioned in the claim form in the context of an equal pay claim. The appointment was to cover Dr Buckle’s sick leave in from November 2015 until June 2016.[39]The claimant also appears to be referring to different appointments. On one occasion she was covering for Dr Buckle when he was on sick leave and another occasion when she was covering for Professor McMillan’s first maternity leave. The claimant compares herself to Dr Bowness who covered Professor McMillan’s second maternity leave. These claims would be timebarred.[40]The claimant also appears to be referring to equal pay because of disability. Unfavourable treatment due to disability would not give rise to an equal pay claim.[41]The claimant also goes on to introduce claims of discrimination arising from disability (section 15 of the EqA) and harassment (section 26 of the EqA). These are new claims which were not previously foreshadowed in the claim form as amended by the October Amendment. These claims are out of time.[42]The claimant is a law lecturer. She had knowledge of the law to plead her claim in full in July 2018. She was also aware of how to amend the claim when she introduced the claims of failure to make reasonable adjustments and victimisation in October 2018. While it was acknowledged that the claimant did not receive feedback on the interview in September 2018 until December 2018, it was perfectly reasonable for her to add any claims in respect of section 15 or section 26 of the EqA by way of amendment in time.[43]Having regard to the Selkent factors, it was argued that this was a substantial alteration as they were new causes of action (equal pay, section 15 and section 26).[44]In relation to the equal pay claims, there are strict time limits of six months and the Tribunal does not have discretion to extend these time limits. There is no stable employment relationship. The claimant covered for Dr Buckle 2015/16 and for Ms McMillan in 2017. These claims are out of time.[45]In relation to the section 15 and section 26 claims, these too are out of time as these acts of discrimination were not intimated until September 2019, nine months after the event. There was no good reason advanced by the claimant for the delay in bringing these claims. There is significant hardship to the respondents in allowing new claims. The claimant already has a significant number of claims before the tribunal and to allow the amendment to include equal pay, in relation to section 15 and section 26 claims relating to matters going back to 2015, would significantly increase the scope and would cause prejudice to the respondents particularly as the respondent will have to investigate and reply to those claims.
The relevant law
[46]In Chandhok v Tirkey 2015 ICR 527 EAT, Mr Justice Langstaff said, “in summary, a system of justice involves more than allowing parties at any time to raise the case which best seems to suit the moment in their perspective. It requires each party to know in essence what the other is saying, so that they can properly meet it; so that they can tell if a tribunal may have lost jurisdiction on time grounds so that the costs incurred can be kept to those that are proposed, so that the time needed for the case and expenditure goes hand in hand with it can be provided for both by the parties and by the tribunal itself and enable care to be taken that any one case does not deprive others of their fair share of the resource of the system. It should provide for focus on central issues. That is why there is a system of claim and response, and why an employment tribunal should take very great care not to be diverted into thinking that the essential case is to be found elsewhere than in the pleadings.”[47]Selkent Bus Company v Muir 1996 ICR 386 sets out guidance as to how tribunals should approach applications for leave to amend, the requirement to carry out a balancing exercise of all relevant factors having regard to the interests of justice and the relative hardship that would be caused to the parties granting or refusing the application.[48]Having heard the parties, I noted that there was no issue that under rule 29 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 (the Tribunal Rules), I had discretion to allow an amendment at any stage of the proceedings. However, such discretion must be exercised in accordance with the overriding objective of dealing with cases justly and fairly under rule 2 of the Tribunal’s Rules.[49]I considered that in exercising any discretion, I had to have regard to all the circumstances of the case and carry out a careful balancing exercise of all relevant factors, having regard to the interests of justice and the relative hardship that would be caused to the parties by granting or refusing the amendment application. The relevant factors include the nature of the amendment, the applicability of time limits and the timing and manner of the application.[50]I started by considering the Tribunal proceedings. The claim form was completed by the claimant and sent to the Tribunal’s office on 24 July 2018. The details of the complaint are set out in a separate eight-page document extending to 29 paragraphs. The claims are well expressed and include statutory references.[51]At the October PH there was discussion about the various claims. The note of the October PH is detailed and contains no reference to a claim of equal pay.[52]The note of the October PH also refers to the respondent being “unclear of the actual acts or omissions of the respondent in the period from September 2015 onwards that the claimant specifically relies upon in her claims of indirect discrimination”. It was in this context that the claimant agreed to provide a schedule “setting out each and every act or failure which she says caused her disadvantage and upon which she would intend to rely in support of her discrimination claims”.[53]I noted that the discussion about additional discrimination claims related to events around September 2018 relating to the claim of indirect discrimination and new claims of failure to make reasonable adjustments and victimisation. The note of the October PH refers to the time limits for presenting these additional claims and gives the claimant an opportunity to amend the claim form which the claimant did on 24 October 2018.[54]The claimant did apply to amend in October 2018. She then provided the November SS.[55]A preliminary hearing fixed in relation to disability status was postponed in March 2019. The claimant then provided the July SS and made an application to amend. The August PH took place and before this preliminary hearing to consider if the claim currently comprises a claim under the equal pay provisions and if it does not whether the claimant is permitted to include such a claim the claimant provided the September SS and Further and Better Particulars.[56]July 2018 was the last date that the claimant worked for the respondent in any capacity. The post 24 July events relate the interview in September 2018 on which the claimant obtained feedback in December 2018. The case has not been listed for a final hearing. The respondent has raised issues about time bar in relation to certain claims.[57]I next turned to consider the nature of the amendment. In looking at the nature of the amendment the focus in my view was the claim form as amended. I was not satisfied that when looked at as a whole, it contained a claim in respect of equal pay. While I accepted that the claimant set out in the claim form a sex discrimination claim in which Dr Bowness is named as a comparator, there is no basis upon which an equal pay claim is foreshadowed.[58]I did not consider that it was relevant when considering the nature of amendment to look at the response as amended. This was more relevant in relation to relative hardship but in any event, I was not satisfied that there was reference to an equal pay claim in either the original response or the amended response presented in December 2018. The paragraph of the amended response to which the claimant referred is under the heading ‘indirect discrimination’ and related to the time periods referred to in the claimant’s November SS. It also specifically refers to the comparison based on sex discrimination on the grounds of sex.[59]From my reading of the claim form and October Amendment, the amendment application comprising of the September SS and Further and Better Particulars intimated in September 2019, comprised:a. Expansion on the facts contained in the claim form as amended;b. New facts, most (but not all) of which were known when the claim form was amended in October 2018;c. Raising of new causes of action: an equal pay claim, discrimination claims under section 15 and section 26 of the EqA.[60]I considered that the amendment was substantial and not a relabelling exercise.[61]The new causes of action are presented out of time. In relation to the equal pay clam this relates to two separate appointments which terminated in 2015 and 2017. The claimant last worked for the respondent on 20 July 2018. Although when making the October Amendment the claimant would not have appreciated that she may have a claim under section 15 and 26 of the EqA, she had the feedback from the interview in December 2018. She did not mention either of these claims in the July SS and only appears to have done so as an afterthought in the September SS. The claimant could have brought these claims previously when the facts were known to her in December 2018 but she did not do so.[62]There was no suggestion that the claimant was not aware of any facts or there was a delay in making in presenting the claims in time was due to the respondent. The claimant’s position at the preliminary hearing was that the claim form included an equal pay claim. She therefore knew of the right to do so on 24 July 2018; and by October 2018 of her right to bring further claims; and that this could be done by way of amendment or a new application. She was also aware of the time limits involved. These were expressly stated in the notes of the October PH. There was no explanation provided to me as to why the claimant did not apply to amend when she received feedback of the interview in December 2018. She understood time limits and the need to seek permission to amend particularly when raising new causes of action. There was no explanation as to why it would be just and equitable to extend the time limit in respect of the jurisdictions where I had the discretion to so do.[63]Turning to the timing and manner of the amendment application, the claimant is unrepresented. She has a law degree and lectures in law. While the claimant does not specialise in employment law, from the claim form which she completed the claimant is able to articulate claims relating to discrimination based on sex, disability, part time workers, fixed term employees and unfair dismissal. A considerable amount of time was spent at the October PH clarifying with the claimant the nature of her claims during which there was no mention of an equal pay claim. She knew at the October PH the need to apply to amend if she wanted to make new claims. The claimant did so in October 2018 and added additional claims under section 20 and 27 of the Equality Act 2010 in respect of the events happening after 24 July 2018.[64]There was no explanation why the claimant did not seek to amend on receipt of the interview feedback in December 2018. She was aware of the process and the time limits involved. The claimant’s first mentioned claims under section 15 and 26 of the Equality Act 2010 was in the September SS.[65]I could understand why after December 2018, the focused was on clarifying the disability status and seeking clarification in relation to the existing complaints which rely on different protected characteristics and types od discrimination. While I appreciated that the claimant is unrepresented, her correspondence with the Tribunal and the respondent shows as one would expect of her qualifications a good understanding of Tribunal practice and procedure.[66]While the lateness of an application is a relevant factor it is not an insuperable reason for refusing an application to amend. This case has not been listed for a final hearing, but it relates to events from 2015 and was raised in July 2018. The amendment procedure in October 2018 was understandable given that it related to events since the presentation of the claim form. There have been two case management preliminary hearings to focus on the issues so that the respondent and the Tribunal knew the case that was to be answered and the issues to be determined. My impression is that the application to amend that it now before me is being made not because matters have just to the claimant’s attention but rather that she had now had an opportunity to raise the case which from her perspective suits best having had a chance to consider the legislation.[67]I then turned to consider the interests of justice and hardship of granting and refusing the amendment application.[68]If the amendment is allowed, I anticipate that the respondent will seek further information in relation to the equal pay claim before being able to respond. It appeared to me that the equal pay claim as currently presented was contradictory and lacked detail.[69]The situation is further complicated in that in the September SS, the claimant’s comparator is Dr Buckle who is not referred to in the claim form as amended. The equal pay claim is different from the direct discrimination claim using Dr Bowness as a comparator. The respondent will be involved in making new and different lines of enquiry. The respondent has not prepared for an equal pay claim. There will be a delay while the respondent investigated the equal pay claim. This would necessarily expand on the documentary, oral evidence and expense. It would involve clarifying what work undertaken by the comparators. Dr Buckle has passed away.[70]The respondent will in any event need to reply to the additional information that is set out in the September SS and further and better particulars insofar as they relate to the existing claims. While there are existing claims involving sex and disability discrimination, the claims under section 15 and 26 of the Equality Act 2010 require different lines of enquiry which the respondent has not undertaken at this stage.[71]If the amendment is refused, the claimant will not be able to advance her equal pay claim and claims under section 15 and 26 of the Equality Act 2010. However, she has already significant claims before the employment tribunal that are required to be determined.[72]Looking at all the circumstances and balancing the hardship and injustice to both parties, I concluded that the amendment should not be allowed to the extent that it introduces claims of equal pay, discrimination arising from disability and harassment.[73]I have not addressed the issue of whether there should be a preliminary hearing on time bar as there was in sufficient time to deal with this on the day and the respondent’s position on this was possibly dependent on the outcome of the amendment application.
Introduction
[1]A preliminary hearing took place before me on 20 November 2019 to consider whether the ET1 claim form comprised a claim under the equal pay provisions and if it did not whether the claimant was permitted to include such a claim.[2]I issued the following judgment (the Judgment): “The judgment of the Employment Tribunal is that the claimant’s application to amend as set out in the claimant’s Scott Schedule and Further and Better Particulars dated 26 September 2019 is allowed to the extent that it seeks to clarify the existing claims but is not allowed to the extent that it introduces claims of equal pay, discrimination arising from disability and harassment under the Equality Act 2010.”[3]I was not satisfied that the ET1 claim form as amended in October 2018 (the Amended Claim Form) contained any claim in respect of equal pay. While it contained a claim of sex discrimination with Dr Bowness named as a comparator there was no basis upon which an equal pay claim was foreshadowed. I also noted that the November 2018 Scott Schedule listed an equal pay claim with Dr Buckle as a comparator. He had not been mentioned in the Amended Claim Form. I concluded that the equal pay claim involving Dr Buckle was a new claim that was presented out of time as it related to a position held by the claimant between 2015 and 2016.[4]The claimant appealed against the Judgment on eight grounds, two of which were allowed to proceed to a full hearing: a) Had I erred in concluding that the ET1 claim form did not include any claim in respect of equal pay under and in terms of section 64 of the Equality Act 2010 (EqA)? b) Had I erred in applying the Selkent principles in concluding that any equal pay claim had been brought out of time.[5]In the EAT Judgment dated 30 November 2021 Lord Fairley ordered the Appeal be allowed in part to the extent only of setting aside my refusal to permit the amendment of the claim to include the specific equal pay claim described at pages 17 and 18 of the November 2018 Scott Schedule and remitted consideration of the proposed amendment of the claim to me.[6]In his oral judgment Lord Fairley said that I was correct to conclude what was said in the ET1 claim form did not amount to an equal pay claim. He said that the November 2018 Scott Schedule stated amongst other things that the claimant was denied the same pay and conditions as the person whose job she was covering (Jo Buckle). Objectively that was an equal pay claim which was not made in the ET1 claim form. As it was an entirely new basis of claim an application to amend was require to introduce it.[7]In considering the equal pay claim involving Dr Buckle as a comparator Lord Fairley said that I correctly noted that such a claim was first mentioned in the November 2018 Scott Schedule. Whilst no formal application to amend was made at the time the inclusion of the claim in the November 2018 Scott Schedule can be taken by implication to be an application to amend to include a new claim (the Buckle Amendment).[8]Lord Fairley said that applying a “standard case” analysis of time bar under section 129 of the EqA I had concluded that the equal pay claim involving Dr Buckle as a comparator was time barred. Whilst that might have been an entirely understandable conclusion it was not clear what if any consideration I had given to the possibility of time bar in relation to that claim being that applicable to a “stable work case” in terms of section 129 of the EqA. This was potentially relevant given the history of the working relationship set out in the note of the preliminary hearing Judge in October 2018 and was one which could possibly not be determined only on the basis of submissions. It may have required either an agreement of material facts or some factual evidence as to the nature and history of the underlying working relationship. It was at least possible that the answer to that question could have had a bearing upon the application for the Selkent test to the claimant’s attempt to make such a claim for the first time in November 2018.[9]Following a preliminary hearing for case management on 5 April 2022 it was agreed with the parties that I would fix a reconsideration hearing to be conducted remotely by cloud video platform at which I would reconsider the proposed Buckle Amendment to include amongst other Selkent factors the possible effect of section 129 of the EqA. I confirmed to the parties that I had retained the joint set of productions provided for the preliminary hearing in November 2019. Reconsideration Hearing[10]The respondent provided a supplementary set productions consisting of the letters of engagement, letters of employment, written terms and conditions for Lecturer in Criminology - Sociology and Social Policy, written terms and conditions for Researcher 1A and notice of termination of employment.[11]In response the claimant provided a supplementary set of productions consisting of work diaries, payslips,, casual worker payment forms, P60s for year ended 5 April 2016, 2016 and 2018.[12]As my reconsideration involved considering an application to amend to introduce a new claim and time bar was one of the Selkent factors being considered we discussed the conflicting EAT authorities of Amey Services Limited and another v Aldridge and others EATS 007/16 and Galilee Commissioners of Police of the Metropolis 2018 ICR 634 EAT and to what extent I would be determining the issue of time bar when deciding the application.[13]My understanding of the parties’ position at this reconsideration hearing was that the claimant asserts that that she had a stable work relationship with the respondent which commenced in September 2015 and terminated on 24 July 2018. As the Buckle Amendment (which relates to the period 23 November 2015 to 5 May 2016) was included in the November 2018 Scott Schedule it was not time barred when the implied application to amend was made. The respondent accepted that the Buckle Amendment was not time barred if there was a stable work relationship which terminated on 24 July 2018. The respondent asserts that there was no stable work relationship. It was agreed that it was not the purpose of this reconsideration hearing for me to determine whether the was a stable work relationship. I would however consider that was the claimant’s position and take this into account when reconsidering the application to amend.[14]It was agreed that Ms Stobart, Counsel for the respondent would address me first and the claimant would then respond. Ms Stobart would have the opportunity to reply if necessary. The Respondent’s Submissions[15]Ms Stobart said that from the Judgment and the EAT Judgment the Buckle Amendment was a new claim first foreshadowed in the November 2018 Scott Schedule. At the preliminary hearing in November 2019 when considering time limits the equal pay claim was looked as a standard case. The claimant’s position is that the Buckle Amendment is a stable work case.[16]The Buckle Amendment relates to the period from 25 January 2016 to 25 May 2016 when Ms Stobart said the claimant was engaged as a casual worker. She referred me to a letter of engagement dated 14 September 2015, headed: Subject Group: Sociology and Social Policy (Criminology) 10282 Module Name ML2L423)32 AB Crime and Society. This was a contract for payment for hours worked following the submission and authorisation of a Casual Hours Form. Hours were to be approved be the appointing manager before they were worked.[17]Ms Stobart then referred me to the index of the claimant’s supplementary productions and in particular document 7: Contract of Employment for covering Jo Buckle’s Module 25/1/2016 – 20/5/2016. This typewritten document states: “Module leadership 68 hours = 4 hours per week for 17 weeks from 25/1/16 to 20/5/16. This lasts until the dates that marks are due. Preparation hours 38.5 hours (3.5 hours per week) Contact time 77 hours = 7 hours per week for 11 weeks Marking 62 hours Total hours = 245.5 x £21.60 = £5,351.9 Plus holiday pay of 12.07%”[18]Next Ms Stobart referred to a fixed term employment contract dated 30 August 2016 effective from 1 September 2016 to 31 May 2017 to provide maternity cover for Professor McMillan’s teaching obligations (the McMillan Contract). The McMillan Contract provided a salary. Ms Stobart said that this was a contract of employment rather than an hourly rate casual assignment.[19]The next document dated 5 October 2017 was headed Casual worker letter of engagement; Subject group: Sociology and Social Policy (10282) Module Name: Business of Social Science. The engagement was five hours per week to carry out work as Occasional Lecturer from 9 October 2017 to the end of May 2018. This was a contract for payment for hours worked following the submission and authorisation of a Casual Hours Form. Hours were to be approved be the appointing manager before they were worked.[20]Ms Stobart then referred to a document dated 9 October 2017 headed Casual worker letter of engagement; Module: Skills for Legal Employment - 4 hours/week, Trim A; Introduction to Legal Systems and Study – 4 hours/week Trim A. This contract was for the Department of Law, Economics and Accountancy and Risk to cover the modules between October 2017 and January 2018 Sociology and Social Policy (10282): Business of Social Science. This was a contract for payment for hours worked following the submission and authorisation of a Casual Hours Form. Hours were to be approved be the appointing manager before they were worked.[21]The final document to which Ms Stobart referred was dated 19 February 2018, a fixed term employment contract as a professional academic (research) effective from 21 February 2018 to 20 July 2018 for 0.6 FTE. The contract provided a salary. The department was the Glasgow School for Business and Society. Ms Stobart said that this contract of employment (the Research Contract) was a different grade and scale from the McMillan Contract.[22]Ms Stobart said that the respondent’s position was that the claimant was engaged on a series of different types and length of contacts; with breaks and for different departments and doing different work: lecturing and research.[23]Turning to the Buckle Amendment, Ms Stobart said that from the November 2019 Scott Schedule this related to the period from January 2016 when the claimant was asked to cover Dr Buckle’s modules while he was hospitalised.[24]Ms Stobart then referred to the Selkent factors. Nature of the amendment[25]Ms Stobart said that this was a new cause of action. It would cause substantial prejudice to the respondent because of the passage of time. The contract produced by the claimant was entered into in 2016. Dr Buckle is dead. There is no opportunity for him to explain what work he did and what work he expected the claimant to do while he was off sick.[26]By allowing the Buckle Amendment there will need to be a new evidential enquiry. This will involve not only enquiry about whether the claimant’s work was the same of broadly similar to that of Dr Buckle and any difference must not be of practical importance but also consideration of whether it was a stable work case. This is all new enquiry with complex legal consideration involving time effort and expense including legal cost. This is a substantial prejudice to the respondent. Applicability of time limits[27]Since the Appeal it is now suggested that this may be a stable work case. That was not suggested before.[28]To establish if there is a stable work case there will need to be consideration of all the contracts. Ms Stobart referred to her earlier summary. The claimant’s position is that these demonstrate a stable work case. Ms Stobart said that while this argument could be made it had little prospect of success.[29]She referred to His Honour Judge MacMillan’s endorsement of the Employment Judge’s application of the ECJ ruling in Preston v Wolverhampton Healthcare NHS Trust and other (No 1) where a stable employment relationship arises when an employee is employed by the same employer; there are a succession of contracts punctuated by intervals without a contract on the same or broadly similar terms to perform essentially the same work under.[30]Ms Stobart said that while there was the same employer and a succession of contracts with intervals they were fundamentally different terms and the not essentially the same work or broadly similar work. Some were hourly paid rather than salary. They involved different roles, different terms and conditions and different work and variation in salary.[31]The contract relating to the Buckle Amendment ended in May 2016. The claimant was then engaged on a contract covering Professor McMillan’s lectures during her maternity leave. The contract as an academic lecture did not involve any lecturing duties. It was clearly a different role and type of contract.[32]Ms Stobart said that the claimant’s schedule of loss underlines this point in which the claimant states: “The claimant’s net/gross weekly pay was variable each trimester, but the annual amounts received are given below. As aforementioned the claimant effectively worked in 3 roles before being dismissed (lecturer for the law department, lecturer for the sociology department and part-time researcher funded by a third party). The annual salary received by the claimant from the respondent is as follows: 2015/16 -£3,790.84 2016/17 - £27,171.90 2017/18 - £7,074.30”[33]The applicability of time limits weighs heavily in favour of the respondent. While the new claim is not necessarily out of time it is very likely and the respondent will be put to potential unnecessary expense determining the nature of the work done in 2016. The respondent would be prejudiced by allowing the application. Timing and manner of the application[34]The Buckle Amendment relates to an equal pay claim that could have been brought in 2016. The claimant did not do so. She did not bring the claim in her ET1 claim form. She included it in the November 2018 Scott Schedule which was not the Scott Schedule that she relied upon at the preliminary hearing in November 2019. The respondent has no understanding why the claimant did not make the claim earlier. She has never provided an explanation for this.[35]It is an unfair criticism to say that the November 2018 Scott Schedule was not opposed. The purpose of the Scott Schedule was to provide additional details of the claims in the ET1 claim form which would not normally be opposed. This would not normally be the way a new claim would be brought. The claimant knew how to amend her claim form. Balance of prejudice[36]Considering all the factors Ms Stobart said that there was substantial prejudice to the respondent. The claimant has many other cases. This equal pay claim is a red herring. To allow the Buckle Amendment will take more time and substantial delay. The respondent will need to consider whether the claimant and Dr Buckle were doing like work. Why were casual contracts use and what factor if any did gender play? How were others treated at that time and if there is a material factor defence. There will need to be a hearing on the stable work case and time bar.[37]Ms Stobart invited me to exercise my discretion and refuse the application. The Claimant’s Submissions[38]The claimant agreed that I was considering whether to allow the Buckle Amendment which at paragraph 21 of the EAT Judgment states, “The Scott Schedule states amongst other things that the appellant ‘was denied the same pay and conditions as the person whose jog she was covering (Jo Buckle)’. Objectively this is an equal pay claim. It was not however a claim made in the ET1 as amended in October 2018. For reason already noted in relations to ground 3, as at November 2018, it was an entirely new basis of claim. As such an application to amend was required to introduce it. In considering the equal pay claim involving Dr Buckle as a comparator, the Employment Judge correctly noted that such a claim was first mentioned in the November 2018 Scott Schedule. Whilst no formal application to amend was made at that time the inclusion of that claim in the November 2018 Scott Schedule can be taken, by implication, to be an application to amend to introduce an the new claim.” Nature of the amendment[39]The claimant said that at the preliminary hearing in October 2018 she understood that she was to apply to amend the ET1 claim form to include acts of discrimination that had occurred after 24 July 2018 when she had sent the ET1 claim form to the Tribunal. She did this on 24 October 2018. The application was accepted on 20 November 2018.[40]At that stage she was directed to provide a schedule by 8 November 2019 setting out each and every act or omission that she intended to rely in any of her discriminations claims. The claimant said that as she thought that her ET1 claim form included an equal pay claim she included the details of her comparator Dr Buckle.[41]The claimant said that the respondent has always been well represented by a legal team. The respondent responded to the claimant’s amendment on 10 December 2018. The respondent did not oppose the November 2018 Scott Schedule until July 2019. A revised schedule was emailed on 12 July 2019, “Please note that the application is not opposed to the extent that it seeks to clarify or otherwise the claimant’s existing claim. However it is noted that the claimant’s application goes much further than that. For instance it seeks to add a fifth potential disability of dyscalculia and seeks to add entirely new claims for equal pay and also for dismissal of a statutory right. The respondent has thus far not prepared for these claims which are wholly new and differ significantly from the legal claims pursued to date. It is also contended that these new claims are time barred and the claimant should not simply be able to get round the issue of time bar by seeking to amend her claim some 12 months on.” Applicability of time limits[42]The claimant said that the respondent had produced documents in support of the “Timeline of Work”, a document in the joint set of productions. The summary was not substitute for hearing evidence about the basis upon which the claimant worked for the respondent. Regardless of the headings in the letters and what the respondent called the working relationship, the nature of that working relationship was the crux of the dispute between the parties The claimant said that the Timeline of Work did not accurately reflect that.[43]The claimant said that she taught two modules in 2015/16. There were four full time staff in Criminology at the time. Dr Buckle’s modules were popular. She was engaged in 2015 to help Dr Buckle deliver his module. She was described on the system as a casual worker. The claimant disputes this status and maintains that she was an employee because of the level of responsibility and integration. It suits the respondent to call her a worker but in the interests of justice there should be a final hearing.[44]The claimant referred to her work diary for the week commencing 23 November 2015 which she said demonstrated that in addition to delivering her modules she also covered modules of Dr Buckle as he was off sick. This continued the two following weeks. The Christmas break followed. The claimant referred to the document that she had produced described as “Contract of Employment for Covering Jo Buckle’s Module – 25/1/2016- 20/5/2016”. She said that this was what she was given. It was the type of arrangement that was put in place at the discretion of the manager. Her casual worker payment forms show that she claimed for lecturing, preparation, module leadership and marking. The claimant said that she was doing Dr Buckle’s work. She was paid less than £6,000 whereas he was paid over £40,000.[45]The claimant did not keep the document because she was going to make a claim. She kept her head down and got on with the work. While there were different department she was doing the essentially the same work. Although she was a “Researcher” latterly all academics do research. The claimant said that she had stable work case. The claimant referred to Preston (No 1) (above). There was a succession of contracts, doing an academic role, with the same pension scheme. The contracts were termly. She was not paid over Christmas and the summer holidays as there was no teaching.[46]The claimant said that the claim was presented in time. She disputed the respondent’s position that the stable work argument was weak. While there war conflicting EAT authorities Amey/Galilee (above) I could allow the application to amend and for the issues of time bar to be determined at a later stage. Timing and manner of the application[47]The claimant said that while she had knowledge of criminal law and criminology she was a litigant in person with no expertise in employment law. She is also disabled person whose is cognitively impaired. She thought that she had brought an equal pay claim when she ticked the box “sex (including equal pay)” on the ET1 claim form. She provided additional information about this claim in the November 2018 Scott Schedule. This was not opposed at the time. Balance of prejudice[48]The claimant said that she would be seriously prejudiced if the Buckle Amendment was not allowed and her equal pay claim was not explored. The respondent needs to address the existing claims and in terms of scope and cost the equal pay claim is no more onerous than the other discrimination claims that are being pursued. The discrimination is a continuing act. The passage of time also prejudices the claimant as she says Dr Buckle encouraged her to bring the claim. Consideration of the proposed Buckle Amendment to include amongst the Selkent factors the possible effect of section 129 of the EqA[49]This case was remitted to me to reconsider the Judgment and in particular to my decision not to allow the Buckle Amendment. As part of that reconsideration I was to include amongst the Selkent factors the possible effect of section 129 of the EqA.[50]When deciding whether to exercise my discretion to allow the Buckle Amendment I have to have regard to all the circumstances of the case. In particular I should consider any injustice or hardship which may be caused to any of the parties, if the Buckle Amendment was allowed or refused.[51]While any application to amend involves reference to Selkent I was mindful that the Selkent factors are a list of examples of factors which are likely to be relevant in striking the fundamental balance of injustice or hardship in allowing or refusing the amendment. It is not a checklist.[52]It is now accepted that the Buckle Amendment raised a new cause of action. I therefore asked the extent to which new pleading is likely to involve substantially different areas of inquiry than the original pleading.[53]The Amended Claim Form presents complaints of discrimination. The claimant relies on four potential grounds: disability, sex, the fact that she was a part-time worker; and the fact that she worked on a fixed term contract. The allegations start from August 2015 when the claimant asserts that she did not secure the appointment of a permanent position as result of indirect disability and sex discrimination. The claimant complains of ongoing indirect sex and disability discrimination in relation to further recruitment and promotion up to August/September 2018. She complains that she was treated less favourably than James Bowness on the grounds of sex in relation to covering the maternity leave of Professor McMillan. The claimant says that she was treated less favourably than other workers on the grounds of her part-time worker status and/or fixed term worker status. She makes a claim of failure to make reasonable adjustments in relation to the interview process in August/September 2018 and victimisation in relation to that process as she had by that stage raised a grievance and presented these proceedings.[54]The Buckle Amendment seeks to introduce an equal pay claim. The comparator is Dr Buckle. It refers to the period 23 November 2015 until around 5 May 2016 when the claimant says that she was engaged under the letter of engagement dated 14 September 2015 but went from delivering seminars to stepping in as Module Leader on “Crime & Society” in the first trimester when Dr Buckle was hospitalised. The claimant says that she was denied the same terms and conditions as Dr Buckle whose job she was covering. The claimant has produced a typewritten document: Contract of Employment for covering Jo Buckle’s Module 25/1/2016 – 20/5/2016. It refers to module leadership, preparation time, contact time and marking. The claimant appears to be asserting that during this period her work was the same or broadly similar to that of Dr Buckle.[55]There will need to be consideration about what was Dr Buckle’s work in this period and whether it was the same or broadly similar to that of the claimant or if any differences were of practical importance. If so the respondent will also have to investigate whether it can establish that any difference in pay was genuinely due to a material factor which is not the difference in sex. This is a significant new line of enquiry both factually and legally. In addition there will need to be consideration of whether it is a stable work case. While the Amended Claim Form requires consideration of claimant’s contractual terms the legal and factual issues are different.[56]The EAT Judgment states that whilst no formal application to amend was made at the time, the inclusion of the claim in the November 2018 Scott Schedule can be taken by implication to be an application to amend to include a new claim.[57]I appreciated that the claimant is a party litigant and although she lectures in law, employment law is not her area of expertise. She has presented several different types of claim relying on different grounds of discrimination and her position has evolved since presenting the ET1 claim from. The claimant amended the ET1 claim form in October 2018. Separately she then provided the November 2018 Scott Schedule in response to an order to provide additional information about her existing claims.[58]The respondent has been legally represented throughout. The respondent responded to the Amended Claim Form on 10 December 2018. I note the claimant’s comments on the respondent’s delay in opposing the November 2018 Scott Schedule. The respondent raised the issue in an email sent on 12 July 2019 in response to the claimant producing a revised Scott Schedule: “Please note that the application is not opposed to the extent that it seeks to clarify or otherwise the claimant’s existing claim. However it is noted that the claimant’s application goes much further than that. For instance it seeks to add a fifth potential disability of dyscalculia and seeks to add entirely new claims for equal pay and also for dismissal of a statutory right. The respondent has thus far not prepared for these claims which are wholly new and differ significantly from the legal claims pursued to date. It is also contended that these new claims are time barred and the claimant should not simply be able to get round the issue of time bar by seeking to amend her claim some 12 months on.”[59]Given the claimant’s amendment in October 2018 and the subsequent focus on the issue of disability status which involved a pause in the proceedings I could understand why the respondent did not comment immediately on the November 2018 Scott Schedule. It was not an express application to amend but part of a document that was intended to give details of the existing different types of claims relating to events that spanned three years. Indeed the claimant’s position at the preliminary hearing in November 2019 was that there was an equal pay claim in the Amended Claim Form and the November 2018 Scott Schedule and the other Scott Schedules that she produced were providing additional information.[60]In any event the November 2018 Scott Schedule is being treated as an implied application to amend in November 2018. The Buckle Amendment may therefore not be time barred if the claimant succeeds in establishing that it is a stable work case. However the respondent disputes that. There is no agreed statement of material facts. While the contracts have been produced in my view there needs to be further factual evidence about the intention of the parties at the inception and cessation of the contracts before a decision can be reached on the classification of the case.[61]I turned to consider the practical consequences if the Buckle Amendment is refused. The claimant will not be able to proceed with her equal pay claim and will lose her right (if successful) to an award of arrears of pay. The claimant has however brought several other discrimination claims covering the period in which she was working for the respondent. While there are preliminary issues in relation to time bar in some of these claims, some if not all will proceed to a final hearing in early course.[62]If the Buckle Amendment is allowed, I anticipate that documents will be requested by the claimant to allow her to provide the factual basis of her equal pay claim. There will need to be clarification that the claim is only of “like work” and not any other route for enforcing equal pay. Once this is clarified the respondent will need an opportunity to respond. This is likely to take some time as the respondent has not prepared for the claim. It relates to a period in November 2015 to May 2016. There will need to be enquiry about the work undertaken by the comparator, Dr Buckle and what work he expected the claimant to do while he was on sick leave. Given that Dr Buckle is dead this is likely to be challenging exercise. The respondent will need to ascertain who is able to provide this evidence. The respondent will also need to consider whether is will be relying on the material factor defence and the basis for that. In particular why did the respondent use the contracts that it did and what factor if any did gender play in that decision. I also anticipate that there will be a preliminary hearing on whether the case is a stable work case. This will cause delay in fixing a final hearing in the other claims and additional expense. I do not accept the claimant’s point that the cost of the equal pay claim is no more onerous that the other discrimination claims. As explained it involves consideration of different facts and legal issues.[63]In deciding whether to reconsider the Judgment the balance of justice is key. In my view for the reasons stated allowing the Buckle Amendment will cause substantial prejudice to the respondent. The claimant is able to advance other claims.[64]I therefore decided that having reconsidered the Buckle Amendment the original decision is confirmed.