Mr I Mkwebu v The Aedan Burt Care Trust (ABC Trust) and others: 4114277/2019 and others
EMPLOYMENT TRIBUNALS (SCOTLAND)
Case No 4114277/2019
Between
Mr I MkwebuClaimantThe Aedan Burt Care Trust (ABC Trust) and othersRespondent
Before
Employment Judge A KempDate 9 February 2023
JUDGMENT
[1]The claim against the third respondent Ms Stephanie Burnside having been withdrawn by the claimant is dismissed.[2]The claimant’s application to amend his Claim is granted in the following respects:(i) Further particulars of the claim for harassment on grounds of race in breach of section 27 of the Equality Act 2010 (“the 2010 Act”) in respect of alleged acts in May 2018 arising out of an incident alleged to have occurred in April 2018, and in respect of alleged acts in November 2018, subject to reservation of whether such allegations are within the jurisdiction of the Tribunal on the basis of timebar under section 123 of the 2010 Act.(ii) A claim of a refusal by the first respondent to permit attendance of a companion at a grievance hearing in December 2019, in breach of section 10 of the Employment Relations Act 1999, and victimisation in breach of section 27 of the Equality Act 2010 (“the 2010 Act”).(iii) Further particulars of a claim of victimisation in breach of section 27 of the 2010 Act on the basis of an allegation of failure to conduct an adequate investigation into the claimant’s grievance in a report produced by the first respondent in March 2020.(iv) Claims in respect of a disciplinary procedure commencing on 6 April 2020 that led to the claimant’s dismissal summarily by the first respondent by letter of 5 May 2020, received by him on 7 May 2020, which is alleged to be in breach of sections 13, 26 and 27 of the 2010 Act, sections 47B and 103A of the Employment Rights Act 1996 (“the 1996 Act”) and section 94 of the 1996 Act.[3]Save as so granted the claimant’s application to amend is refused.
REASONS
[1]This Preliminary Hearing was arranged to consider an application for amendment by the claimant. It was also held for the purposes of case management, for which a separate Note has been issued. Two earlier Preliminary Hearings have been held on 30 March 2020 and 19 May 2020, following each of which a Note was issued. Context[2]The application to amend is to be considered in the context of the existing pleadings. That is not a straightforward matter in that there are 10 Claim Forms, against a variety of combinations of respondents, and Further and Better Particulars which were allowed on 11 June 2020 unopposed. The Claims were pursued against the first respondent, his employer, in all cases, and I have identified all respondents by number above for ease of reference.[3]The claimant represents himself, and Mr McFadzean represents all of the respondents.
Background
[4]The claimant was employed by the first respondent. It is a Trust, constituted I was informed by Deed of Trust, and with the Trustees including the second respondent and fifth respondent. The Trust was set up to manage the affairs, including provision of care, of the sixth respondent. The sixth respondent is now an adult, but when a child was seriously injured in a car accident, is tetraplegic, and requires constant care.[5]The first respondent employed the claimant to carry out various roles in respect of the care of the sixth respondent. Although he is seriously disabled by his injuries physically, it is understood that the sixth respondent’s mental capacity is unaffected, and that he is a highly intelligent man.[6]The first respondent has three Trustees. The second and fifth respondents are respectively the mother and father of the sixth respondent. The fourth respondent was also employed by the first respondent.[7]There is one other Trustee namely Ms Fiona Mundy, not at this stage a respondent but in respect of whom the claimant’s application includes an amendment to add her as a further, what would be seventh, respondent. During the course of the hearing before me the claimant was asked about the position of the third respondent, and he confirmed that he withdrew the claim made against her. That claim has been dismissed accordingly.[8]I shall summarise very briefly the Claims made to date. As jurisdiction is an issue that has already been raised in some of them I shall also provide the respondents for each claim, the date early conciliation started, the date of the certificate, and the date on which the Claim Form was presented to the Tribunal, and provide a brief summary of the nature of the Claim made. The Claims (i) 4114277/19
The Claims
[9]The respondents are the first and second respondents. Early conciliation for them commenced on 5 November 2019, the Certificate was issued on 13 November 2019, and the Claim Form was presented on 10 December 2019. The Claim sets out a basic structure of facts which other claims then copy, where the material elements are;(i) The claimant is a black African man(ii) The claimant had a good relationship with the sixth respondent until 22 April 2018 when the sixth respondent subjected the claimant to repeated use of the N word(iii) The claimant had a good relationship with management until 26 November 2018 when he raised health and safety concerns. The further claim this Claim Form makes was a breach of confidentiality in an email on 3 July 2019 sent by the second respondent, and is a claim for direct discrimination under section 13 of the Equality Act 2010 (“the 2010 Act”). (ii) 4114278/19[10]The respondents are the first and second respondents. Early conciliation is as above, and the Claim Form was presented on 11 December 2019. The Claim has the same initial detail, and then an allegation of direct race discrimination in relation to a staff grievance meeting on 5 July 2019, when the claimant says that he raised a health and safety concern. (iii) 4114336/19[11]The respondents are the first, second and third respondents, with the third respondent now dismissed. Early conciliation is as above. The Claim was presented on 11 December 2019. In addition to the initial detail it alleges victimisation under section 27 of the 2010 Act in respect of a complaint made by the claimant about his treatment on 26 July 2019 after which on 6 August 2019 he was removed from his duties in assisting in the care of the sixth respondent. (iv) 4114337/19[12]The respondents are the first and fifth respondent. Early Conciliation for the fifth respondent commenced on 10 November 2019, the Certificate was issued on 18 November 2019 and the Claim was presented on 11 December 2019. In addition to the initial detail the Claim is for harassment under section 26 of the 2010 Act on the basis of an email said to have been sent by the fifth respondent on 10 and 11 August 2019 pressuring the claimant to retract the complaint of 26 July 2019 against the second respondent for her actions at the meeting on 5 July 2019. (v) 4114338/19[13]The respondents are the first, second and fourth respondents. Early Conciliation for the fourth respondent commenced on 5 November 2019, the Certificate was issued on 13 November 2019, and the Claim Form presented on 11 December 2019. In addition to the initial detail the Claim is for direct discrimination under section 13 of the 2010 Act when the claimant says that he was banned from attending work after a period of sickness by email dated 11 October 2019. (vi) 4114339/19[14]The respondents are the first and fourth respondents. Early Conciliation was as above. The Claim Form was presented on 11 December 2019. In addition to the initial detail the Claim alleges harassment from 11 October 2019 to the date of the Claim Form on the basis of an email the claimant sent to the fourth respondent on 7 October 2019 setting out the cause of his sickness and with grievances against the second respondent, which the second respondent showed the sixth respondent. (vii) 4100702/20[15]The respondents are the first, second, fourth and sixth respondents. Early Conciliation for the sixth respondent commenced on 10 November 2019, the Certificate was issued on 18 November 2019, and the Claim Form presented on 6 February 2020. The Claim is for direct discrimination under section 13 of the 2010 Act, and in addition to the initial detail it is made in respect of his grievance on 26 July 20, a further grievance on 7 October 2019 related to alleged instances of discrimination in August 2019, the failure to address adequately his grievances, and the application to him of disciplinary procedure with his being banned from attending work on 11 October 2019 before his grievance made on 26 July 2019 was investigated and concluded. (viii) 4100703/20[16]The respondents are the first and sixth respondents. Early Conciliation was as above. The Claim Form was presented on 6 February 2020. In addition to the initial detail the claim is for direct discrimination under section 13 of the 2010 Act on the basis of grievances made on 26 July 2019 and in August 2019, by an email from Ms Mundy on 11 October 2019, and that there was a grievance hearing on 19 December 2019 with no outcome at the time of the Claim Form being presented and what he claimed was an “ill-defined” ban. (ix) 4100792/20[17]The respondents are the first, second, fourth and sixth respondents. Early Conciliation was as above. The Claim Form was presented on 8 February 2020. It repeats most of the detail in the foregoing claim. In addition to the initial detail the claim is for what is said to be indirect discrimination under section 19 of the 2010 Act on the basis of an email sent on 15 November 2019 which threatened the claimant with dismissal, which he claims put him at a disadvantage compared to EU nationals because of the potential effect on his immigration status, he being a Zimbabwea man on a UK Spouse Residence Permit. (x) 4100793/20[18]The respondents are the first, second, fourth and sixth respondents. Early Conciliation was as above. The Claim Form was presented on 8 February 2020. In addition to the initial detail it the Claim is for, it is understood, direct discrimination under section 13 of the 2010 Act on the basis of the threat to dismiss him made by email on 15 November 2019, and what is understood to be a claim of harassment under section 26 of that Act for that threat to dismiss him. Further and Better Particulars[19]To those details is added the Further and Better Particulars that the claimant has provided, and which have been accepted. That extends to 19 pages. Section A provides such details for Claim (i) in respect of matters alleged to have occurred in July, August and October 2019. Section B sets out such details for the claim under section 47B of the 1996 Act, and refers to emails dated 12 September 2018, 4 February 2020 and 11 May 2020.[20]In addition to the factual detail provided, it makes reference to claims under sections 44 and 45 of the Employment Rights Act 1996 which are understood to be a reference to the health and safety concerns that the claimant referred to in the Claim Forms, which he also claims are a protected disclosure and led to detriment. The claimant refers to the General Data Protection Regulation, but that is not directly within the jurisdiction of the Tribunal, and no separate claim under its terms falls within the jurisdiction of the Tribunal. It is accordingly taken as having been provided by way of factual background in light of that. He refers further to Ms Fiona Mundy as if she was a respondent, but she was not one of the respondents originally named in the Claim Form, and that is a subject of his separate amendment application. The claimant’s application to amend[21]The application was made in writing on 19 May 2020. It extends to 33 pages. It has two sections, the first – A - for matters which pre-date his first Claim Form, and the second – B - for matters which post date the last Claim Form. In brief summary the matters are – Section A(i) Direct race discrimination in respect of training and promotion issues in the period July 2014 to February 2017(ii) Harassment on grounds of race in February 2018(iii) Harassment on grounds of race in April 2018(iv) Indirect discrimination and harassment on grounds of race in May(v) Direct discrimination, disability discrimination and discrimination on grounds of marriage in July 2018(vi) Direct race discrimination in November 2018(vii) Failure to provide rest breaks under the Working Time Regulations 1998 and a detriment under section 45A of the Employment Rights Act 1996 in the period February 2016 to September 2019 Section B (i) Refusal to permit attendance of companion at grievance hearing in December 2019, in breach of sections 10 and 12 of the Employment Relations Act 1999, and victimisation under section 27 of the 2010 Act. (ii) Failure to conduct an adequate investigation into his grievance in the report in March 2020, also in breach of section 27 (iii) The disciplinary procedure, which was clarified during the hearing to have started on 6 April 2020, that led to his dismissal by letter of 5 May 2020, received on 7 May 2020, which alleged gross misconduct, which failing dismissal for some other substantial reason in respect of a break down in trust and confidence alleged to have taken place, and the sixth respondent not wishing the claimant to be involved further in his care. This is argued by the claimant to be: (a) In breach of sections 13, 26 and 27 of the 2010 Act (b) In breach of sections 47B and 103A of the 1996 Act (c) In breach of section 94 of the 1996 Act (iv) Indirect discrimination on grounds of race, and harassment, in May 2020 in relation to the threat of dismissal which is said to be a provision criterion or practice.[22]The claimant further seeks to add additional respondents to the claims, being Ms Cath Carter a former employee of the first respondent who left on 9 September 2018, Ms Fiona Mundy a Trustee as referred to above, and Mr Aeden Burt, who is the sixth respondent. Claimant’s submission[23]In brief summary the claimant argued that it would be just and fair to allow his amendment to be received. The first two pages were a form of prelude to the applications made. He is acting for himself, and had not initially been aware of the full extent of his claims. He had made a subject access request which had led to various documents being produced to him in January 2020. From these he learned the extent of the involvement of those he now wished to add to the Claims. He argued on the point of timebar that the conduct he complained about extended over a period, and that if not it was just and equitable to allow his claims to proceed. In respect of the individuals he argued that they were actively involved in the decisions and that it was appropriate that they be convened as respondents given their individual responsibility. He argued that the same person was involved in matters A (i) and (v) and that that established the continuing acts. He accepted that the amendments in section A were out of the primary time limit. Those in section B had occurred after the Claim Forms were presented. He also confirmed that he withdrew his claim against the third respondent, and it has accordingly been dismissed under Rule 52. Respondents’ submissions[24]In brief summary Mr McFadzean argued that the amendments sought in section A should be refused, as they were clearly out of time. He did not accept that there was conduct extending over a period. He argued that the events were separate and distinct, not sharing common characteristics. Whilst it was accepted that the sixth respondent had used the N word in April 2018 directed to the claimant that was when the sixth respondent was intoxicated, he had apologised and that apology had been accepted. It was not related to other matters which were entirely different. It was out of time to be raised now. He further argued that it would not be just and equitable to allow them to be received if late. He suggested that the claimant was putting forward a large number of separate claims and trying to see which ones “stuck”. That was not appropriate in the assessment of what is just and equitable. The law (i) Amendment
The law
[25]The question of whether or not to allow amendment is a matter for the exercise of discretion by the Tribunal. There is no Rule specifically to address that, save in respect of additional respondents in Rule 34, set out below. It falls within the Tribunal’s general power to make case management orders set out in Rule 29 which commences as follows: “29 Case management orders The Tribunal may at any stage of the proceedings, on its own initiative or on application to make a case management order.”[26]Rule 29 requires to be exercised having regard to the overriding objective in Rule 2. It states as follows: “2 Overriding objective The overriding objective of these Rules is to enable Employment Tribunals to deal with cases fairly and justly. Dealing with a case fairly and justly includes, so far as practicable—(a) ensuring that the parties are on an equal footing;(b) dealing with cases in ways which are proportionate to the complexity and importance of the issues;(c) avoiding unnecessary formality and seeking flexibility in the proceedings;(d) avoiding delay, so far as compatible with proper consideration of the issues; and(e) saving expense. A Tribunal shall seek to give effect to the overriding objective in interpreting, or exercising any power given to it by, these Rules. The parties and their representatives shall assist the Tribunal to further the overriding objective and in particular shall co-operate generally with each other and with the Tribunal.”[27]Earlier iterations of the Tribunal Rules of Procedure did contain a specific rule on amendment, and the changes brought into effect by the current Rules, found in Schedule 1 to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013, require consideration when addressing earlier case law.[28]The nature of the exercise of discretion in amendment applications was discussed in the case of Selkent Bus Company v Moore [1996] ICR 836, which was approved by the Court of Appeal in Ali v Office for National Statistics [2005] IRLR 201. The EAT stated the following: “Whenever the discretion to grant an amendment is invoked, the tribunal should take into account all the circumstances and should balance the injustice and hardship of allowing the amendment against the injustice and hardship of refusing it. What are the relevant circumstances? It is impossible and undesirable to attempt to list them exhaustively, but the following are certainly relevant; “(a) The nature of the amendment Applications to amend are of many different kinds, ranging, on the one hand, from the correction of clerical and typing errors, the additions of factual details to existing allegations and the addition or substitution of other labels for facts already pleaded to, on the other hand, the making of entirely new factual allegations which change the basis of the existing claim. The tribunal have to decide whether the amendment sought is one of the minor matters or is a substantial alteration pleading a new cause of action. (b) The applicability of time limits If a new complaint or cause of action is proposed to be added by way of amendment, it is essential for the tribunal to consider whether that complaint is out of time and, if so, whether the time limit should be extended under the applicable statutory provisions, eg, in the case of unfair dismissal, s.67 of the 1978 Act. (c) The timing and manner of the application An application should not be refused solely because there has been a delay in making it. There are no time limits laid down in the Rules for the making of amendments. The amendments may be made at any time – before, at, even after the hearing of the case. Delay in making the application is, however, a discretionary factor. It is relevant to consider why the application was not made earlier and why it is now being made: for example, the discovery of new facts or new information appearing from documents disclosed on discovery. Whenever taking any factors into account, the paramount considerations are the relative injustice and hardship involved in refusing or granting an amendment. Questions of delay, as a result of adjournments, and additional costs, particularly if they are unlikely to be recovered by the successful party, are relevant in reaching a decision.”[29]In a number of cases distinctions are drawn between firstly cases in which the amendment application provides further detail of fact in respect of a case already pleaded, secondly those cases where the facts essentially remain as pleaded but the remedy or legal provision relied upon is sought to be changed, often called a change of label, and thirdly those cases where there are both new issues of fact and of legal provision on which the remedy is sought. The first two categories are those where amendment may more readily be allowed. The third category is more difficult for the applicant to succeed with, as the amendment introduces a new claim which, if it had been taken by a separate Claim Form, would or might have been outwith the jurisdiction of the Tribunal as out of time. These issues are addressed in the case of Foulds referred to below, for example.[30]The statutory provisions on timebar are set out below.[31]In Abercrombie v Aga Rangemaster Ltd [2014] ICR 204 the Court of Appeal said this in relation to an amendment which arguably raises a new cause of action, suggesting that the Tribunal should '' … focus not on questions of formal classification but on the extent to which the new pleading is likely to involve substantially different areas of inquiry than the old: the greater the difference between the factual and legal issues raised by the new claim and by the old, the less likely it is that it will be permitted.''[32]In order to determine whether the amendment amounts to a wholly new claim, the third of the categories set out above, it is necessary to examine the case as set out in the original Claim to see if it provides a 'causative link' with the proposed amendment (Housing Corporation v Bryant [1999] ICR 123). In that case the claimant made no reference in her original unfair dismissal claim to alleged victimisation, which was a claim she subsequently sought to make by way of amendment. The Court of Appeal rejected the amendment on the basis that the case as pleaded revealed no grounds for a claim of victimisation and it was not just and equitable to extend the time limit. It said that the proposed amendment 'was not a rectification or expansion of the original claim, but an entirely new claim brought well out of time'. (ii) Jurisdictional issues[33]There are two contradictory lines of authority at the EAT level about how amendment applications should be dealt with where one of the issues is timebar. The more recent line is set out in Galilee v Commissioner of Police of the Metropolis [2018] ICR 634, in which the EAT held that it was permissible to allow amendment but reserving questions of jurisdiction for determination either at a Preliminary Hearing or at a Final Hearing. That results in an amendment being allowed to permit a new claim to be raised, but the issue of whether or not it is in the jurisdiction of the Tribunal is not at that stage determined. The other line of authority is to the effect that questions of jurisdiction on issues of timebar must be addressed at the time of consideration of the amendment, as once accepted the Claim is deemed to have been amended from the date of its presentation initially, rather than when the amendment was sought, on which the authorities include Rawson v Doncaster NHS Primary Care Trust UKEAT/022/08, Newsquest (Herald and Times) Ltd v Keeping UKEATS/51/09 and Amey Services Ltd v Aldridge UKEATS/7/16. (iii) Time bar[34]Section 123 of the 2010 Act provides as follows “123 Time limits(1) [Subject to [sections 140A and [section] 140B],] proceedings on a complaint within section 120 may not be brought after the end of— (a) the period of 3 months starting with the date of the act to which the complaint relates, or (b) such other period as the employment tribunal thinks just and equitable.(2) Proceedings may not be brought in reliance on section 121(1) after the end of— (a) the period of 6 months starting with the date of the act to which the proceedings relate, or (b) such other period as the employment tribunal thinks just and equitable.(3) For the purposes of this section— (a) conduct extending over a period is to be treated as done at the end of the period; (b) failure to do something is to be treated as occurring when the person in question decided on it.(4) In the absence of evidence to the contrary, a person (P) is to be taken to decide on failure to do something— (a) when P does an act inconsistent with doing it, or (b) if P does no inconsistent act, on the expiry of the period in which P might reasonably have been expected to do it.”[35]This therefore provides that the Tribunal has jurisdiction under the 2010 Act if a claim is commenced within three months of the act complained of, but there are two qualifications to that, firstly where there are acts extending over a period when the timelimit is calculated from the end of that period, and secondly where it is just and equitable to allow the claim to proceed.[36]An act will be regarded as extending over a period, and so treated as done at the end of that period, if an employer maintains and keeps in force a discriminatory regime, rule, practice or principle which has had a clear and adverse effect on the complainant (Barclays Bank plc v Kapur [1989] IRLR 387. It was also held in that case that it is only the continuance of the discriminatory act or acts, not the continuance of the consequences of a discriminatory act, that will be treated as extending over a period.[37]The Court of Appeal in Hendricks v Metropolitan Police Commissioner [2003] IRLR 96 stated that terms mentioned in the above and other authorities are examples of when an act extends over a period, and “should not be treated as a complete and constricting statement of the ‘indicia' of such an act. In cases involving numerous allegations of discriminatory acts or omissions, it is not necessary for an applicant to establish the existence of some 'policy, rule, scheme, regime or practice, in accordance with which decisions affecting the treatment of workers are taken'. Rather, what he has to prove, in order to establish a continuing act, is that(a) the incidents are linked to each other, and(b) that they are evidence of a 'continuing discriminatory state of affairs'. This will constitute 'an act extending over a period’.”[38]The assessment of what is just and equitable, if that stage is reached, involves a broad enquiry with particular emphasis on the relative hardships that would be suffered by the parties according to whether the amendment is allowed or refused.[39]The onus is on the claimant to persuade the tribunal that it is just and equitable to extend time, and the exercise of discretion is the exception rather than the rule (Robertson v Bexley Community Centre [2003] IRLR 434), confirmed in Department of Constitutional Affairs v Jones [2008] IRLR 128[40]In Chief Constable of Lincolnshire Police v Caston [2009] EWCA Civ 1298, [2010] IRLR 327, the Court of Appeal stated the following “There is no principle of law which dictates how generously or sparingly the ‘power to enlarge time is to be exercised’ (para 31). Whether a claimant succeeds in persuading a tribunal to grant an extension in any particular case 'is not a question of either policy or law; it is a question of fact and judgment, to be answered case by case by the tribunal of first instance which is empowered to answer it”[41]In Abertawe Bro Morgannwg University Local Health Board v Morgan UKEAT/0305/13 the EAT stated that a claimant seeking to rely on the extension required to give an answer to two questions: ''The first question in deciding whether to extend time is why it is that the primary time limit has not been met; and insofar as it is distinct the second is [the] reason why after the expiry of the primary time limit the claim was not brought sooner than it was.''[42]The terms of section 123 accordingly require consideration when addressing the issue of timelimits in an application in a manner that has regard to all of its provisions, which are different to those that apply under the Employment Rights Act 1996. The protection against detriment for making a protected disclosure is in section 47B, and remedy is provided for in section 48, and in respect of time off for dependents in section 57A, with remedy provided for in section 57B. In each of those provisions the basis of the three month period not applying is reasonable practicability and if it was not reasonably practicable to do so in the primary timelimit of three months what is a reasonable period.[43]The question of what is reasonably practicable, also found in section 111 of the 1996 Act in essentially the same terms, is explained in a number of authorities, particularly Palmer and Saunders v Southend on Sea Borough Council [1984] IRLR 119. The following guidance is given: “34. In the end, most of the decided cases have been decisions on their own particular facts and must be regarded as such. However, we think that one can say that to construe the words “reasonably practicable” as the equivalent of “reasonable” is to take a view too favourable to the employee. On the other hand, “reasonably practicable” means more than merely what is reasonably capable physically of being done. … Perhaps to read the word “practicable” as the equivalent of “feasible”, as Sir John Brightman did in Singh’s case and to ask colloquially and untrammelled by too much legal logic, ‘Was it reasonably feasible to present the complaint to the Industrial Tribunal within the relevant three months?’ is the best approach to the correct application of the relevant subsection. 35. What however is abundantly clear on all the authorities is that the answer to the relevant question is pre-eminently an issue of fact for the Industrial Tribunal and that it is seldom that an appeal from its decision will lie. Dependent upon the circumstances of the particular case, an Industrial Tribunal may wish to consider the manner in which and reason for which the employee was dismissed, including the extent to which, if at all, the employer’s conciliatory appeals machinery has been used. It would no doubt investigate what was the substantial cause of the employee’s failure to comply with the statutory time limit, whether he had been physically prevented from complying with the limitation period for instance by illness or a postal strike or something similar. […] Any list of possible relevant considerations, however, cannot be exhaustive, and, as we have stressed, at the end of the day the matter is one of fact for the Industrial Tribunal, taking all the circumstances of the given case into account.”[44]The burden of proof is on the claimant to prove that it was not reasonably practicable to present the complaint in time: Porter v Bandridge Ltd [1978] IRLR 271.[45]If that issue of reasonable practicability is met by the claimant, there is a secondary issue of whether the claim was presented within a reasonable period of time. That is a question of fact and degree, dependent on all the circumstances. In James W Cook & Co (Wivenhoe) Ltd v Tipper [1990] IRLR 386, guidance on that issue was given.[46]There is a further matter to consider, which is the effect of early conciliation on assessing when a claim was commenced. Before proceedings can be issued in an Employment Tribunal, prospective claimants must first contact ACAS and provide it with certain basic information to enable ACAS to explore the possibility of resolving the dispute by conciliation (Employment Tribunals Act 1996 section 18A(1)). This process is known as 'early conciliation' (EC), with the detail being provided by regulations made under that section, namely, the Employment Tribunals (Early Conciliation: Exemptions and Rules of Procedure) Regulations 2014. They provide in effect that within the period of three months from the act complained of, or the end of the period referred to in section 123 above if relevant, EC must start, doing so then extends the period of time bar during EC itself, and time is then extended by a further month from the date of the certificate issued at the conclusion of conciliation within which the presentation of the Claim Form to the Tribunal must take place. (iv) Individual respondents[47]There is a particular rule in relation to amendments to add new parties, in Rule 34 which provides as follows: “34 Addition, substitution and removal of parties The Tribunal may on its own initiative, or on the application of a party or any other person wishing to become a party, add any person as a party, by way of substitution or otherwise, if it appears that there are issues between that person and any of the existing parties falling within the jurisdiction of the Tribunal which it is in the interests of justice to have determined in the proceedings; and may remove any party apparently wrongly included.”[48]That Rule, by the use of the word “may”, clearly provides a discretion, as was made clear in Drake International Services Ltd v Blue Arrow Ltd [2016] ICR 445, and is itself subject to the overriding objective set out in Rule 2.[49]In the 2010 Act there is provision for a claim against parties other than the employer in sections 111 and 112 as follows: “111 Instructing, causing or inducing contraventions(1) A person (A) must not instruct another (B) to do in relation to a third person (C) anything which contravenes Part 3, 4, 5, 6 or 7 or section 108(1) or(2) or 112(1) (a basic contravention). (2) A person (A) must not cause another (B) to do in relation to a third person (C) anything which is a basic contravention.(3) A person (A) must not induce another (B) to do in relation to a third person (C) anything which is a basic contravention.(4) For the purposes of subsection (3), inducement may be direct or indirect.(5) Proceedings for a contravention of this section may be brought— (a) by B, if B is subjected to a detriment as a result of A's conduct; (b) by C, if C is subjected to a detriment as a result of A's conduct; (c) by the Commission.(6) For the purposes of subsection (5), it does not matter whether— (a) the basic contravention occurs; (b) any other proceedings are, or may be, brought in relation to A's conduct.(7) This section does not apply unless the relationship between A and B is such that A is in a position to commit a basic contravention in relation to B.(8) A reference in this section to causing or inducing a person to do something includes a reference to attempting to cause or induce the person to do it.(9) For the purposes of Part 9 (enforcement), a contravention of this section is to be treated as relating— (a) in a case within subsection (5)(a), to the Part of this Act which, because of the relationship between A and B, A is in a position to contravene in relation to B; (b) in a case within subsection (5)(b), to the Part of this Act which, because of the relationship between B and C, B is in a position to contravene in relation to C. 112 Aiding contraventions (1) A person (A) must not knowingly help another (B) to do anything which contravenes Part 3, 4, 5, 6 or 7 or section 108(1) or (2) or 111 (a basic contravention). (2) It is not a contravention of subsection (1) if— (a) A relies on a statement by B that the act for which the help is given does not contravene this Act, and (b) it is reasonable for A to do so. (3) B commits an offence if B knowingly or recklessly makes a statement mentioned in subsection (2)(a) which is false or misleading in a material respect. (4) A person guilty of an offence under subsection (3) is liable on summary conviction to a fine not exceeding level 5 on the standard scale. (5) For the purposes of Part 9 (enforcement), a contravention of this section is to be treated as relating to the provision of this Act to which the basic contravention relates. (6) The reference in subsection (1) to a basic contravention does not include a reference to disability discrimination in contravention of Chapter 1 of Part 6 (schools).”[50]In cases of public interest disclosures, including detriment and dismissal, a claim can competently be brought against a fellow worker. Section 47B(1A) of the Employment Rights Act 1996 provides that a worker has the right not to be subjected to a detriment on the ground of having made a protected disclosure by a fellow worker, and in the case of such a detriment by a fellow worker the employer has a potential defence if it can show that it took all reasonable steps to prevent that other worker from acting as alleged (Section 47B(1D)). The first respondent does not seek to rely on that defence. The provisions on timebar are equivalent to those in the 2010 Act.
Discussion
[51]The amendments in section B which seek to add new claims the respondents do not oppose, and in light of that they are all granted in respect of the claims that are made. That part of section B which seeks to add new respondents was opposed, and the positions of each of the three persons sought to be added as respondents are addressed below accordingly.[52]All of section A was opposed, and is considered below for each matter. Amendment and timebar[53]Before considering the detail of the application it is appropriate to address the two competing lines of authority in relation to amendment and timebar. Those two lines of authority cannot easily be reconciled. Galilee was decided at least partly on issues of English law and practice, which I do not consider find equivalents in Scots law and practice.[54]How the overriding objective is to be applied was reviewed in the case of Newcastle upon Tyne City Council v Marsden - [2010] ICR 743. The circumstances of that case were different, in that it was an application to review a decision. The employer relied on the cases of Flint v Eastern Electricity Board [1975] ICR 395 and Lindsay v Ironsides Ray & Vials [1994] ICR 384. The employment judge held that those decisions had been superseded by the introduction in the 2014 Rules of the overriding objective, and that a different approach was indicated by the decisions in Williams v Ferrosan Ltd [2004] IRLR 607 and Sodexho Ltd v Gibbons [2005] ICR 1647.[55]The then President of the EAT said this in relation to the former two cases “it is important not to throw the baby out with the bath-water. As Rimer LJ observed in Jurkowska v Hlmad Ltd [2008] ICR 841, para 19 it is “basic” “that dealing with cases justly requires that they be dealt with in accordance with recognised principles. Those principles may have to be adapted on a case by case basis to meet what are perceived to be the special or exceptional circumstances of a particular case. But they at least provide the structure on the basis of which a just decision can be made.” The principles that underlie such decisions as Flint and Lindsay remain valid, and although those cases should not be regarded as establishing propositions of law giving a conclusive answer in every apparently similar case, they are valuable as drawing attention to those underlying principles”[56]He then referred to the facts of the case before him and said; “Those are an exceptional circumstance. They take the case outside the straightforward ‘fresh evidence’ category…... They also take it outside the ordinary run of cases where a party suffers from the wrong, or indeed incompetent, advice of his representative. Whereas in a case of that kind the overall interests of justice, and in particular the weight to be attached to finality in litigation, may well require that a party bear (as between himself and the other party) the consequences of the errors of his own representative, the judge was entitled to take a different view on the particular facts of the present case.”[57]I take from that case a principle that exceptional circumstances may require, in the interests of justice, an outcome that is different to that which is normally the case in the absence of those circumstances, and that principles in case law are not propositions of law binding in every case.[58]In my judgment an amendment if allowed simply permits a claimant to pursue a new matter, whether of fact or law, which was not within the original Claim Form (or Forms as in the present case). It allows a new claim to be pursued but whether that new claim succeeds is a different matter.[59]I turn to Scots law and practice in relation to matters of amendment. That also does not give a binding answer, but guidance which may be helpful to take into account.[60]The nearest equivalent to the issues in the present case in a court action is a personal injury claim. The procedure however is different. An action must generally be commenced within three years of the accident under the Prescription and Limitation (Scotland) Act 1973, but once commenced there is a period for adjustment of the pleadings, and during that period the pursuer can add to the pleadings a new claim, doing so after the three year period has expired, which will be competently before the court, and brought in time.[61]Once that period of adjustment is completed however, the position is different. There is then a Closed Record, and amendment thereafter which may bring in a new claim requires the consent of the court. Amendment can be allowed or refused in the discretion of the Court. There are separate rules for the Court of Session and the Sheriff Court, but the principles underlying them are the same.[62]Chapter 24 of the Rules of the Court of Session makes provision for amendment, but the Rules do not state specifically a procedure in the event that the amendment by a pursuer seeks to introduce a new claim which the defender claims is timebarred. That was referred to in Docherty v Secretary of State for Business, Industry and Strategy [2017] CSOH 54. That was a personal injury action in which the motion was to allow an amendment and in the circumstances of that case the discretion was not exercised in favour of the pursuers, such that the amendment was refused. That took place on the basis of the Minute of Amendment, Answers, and submissions.[63]There are other circumstances where it is not clear when a right of action arose, for example the date on which a pursuer knew or ought to have known of the right of action, which is when the period for timebar purposes starts. In such a case where there is an evidential dispute, the court can hold a preliminary proof on that question.[64]A preliminary proof is also competent when an argument is made under section 19A of the Prescription and Limitation (Scotland) Act 1973 in relation to a personal injury action raised outwith the statutory timelimit of three years. In Donald v Rutherford 1984 SLT 70 an Extra Division of the Inner House of the Court of Session considered the terms of section 19A. Lord Cameron said the following: “Before parting with this case I would draw attention to a difficulty which almost inevitably must arise in dealing with a claim that an action already time-barred should be allowed to proceed, when the only material upon which the court is asked to exercise an equitable jurisdiction is contained in pleadings and certain admitted (but not necessarily complete) correspondence. In the present case I do not think that the interests of parties have been prejudiced by the course which the proceedings took, but when the issues are more complicated and the salient facts less clear than they are in this case, then I think it may well be in the interests of parties that the question of the applicability of s. 19A of the Act of 1973 should be decided on the result of a preliminary proof on the relevant averments and pleas of parties.”[65]In the case of Argyll and Clyde Health Board v Foulds and others UKEATS/009/06 Lady Smith at the EAT said this in relation to Scots law and practice: “19. I would, at this point, observe that the 2004 rules make provision for amendment in a similar manner to that which is provided by the Rules of the Court of Session. Rule 24.1 of those rules provides that, in any cause, the court may, at any time before final judgment, allow: “ (2)……. (d) where it appears that all parties having an interest have not been called or that the cause has been directed against the wrong person, an amendment inserting ……an additional or substitute party……” . 20. In both cases, a wide discretion as to whether to allow the amendment is conferred by the rules. It is within the discretion of the court to allow such an amendment even if time bar questions are liable to arise because of late service on the new defender, such questions being a matter of substantive law and not covered by the rules of court. It is though unlikely that the court will be persuaded to do so if it is plain from the pursuer’s case that he will have no answer to the time bar point. It may not be plain though; the case may, for instance, require consideration of whether the provisions of sections 17 or 19A of the Prescription and Limitation (Scotland) Act 1973 apply, a matter in respect of which there will often require to be a preliminary proof.”[66]She then referred to section 111 of the 1996 Act, the claim before her being for unfair dismissal, and that if a Claim Form was presented timeously, then amended to introduce a new respondent, that respondent could not take a timebar point as the Claim had been presented timeously.[67]That is not however the position in the present case, as whether or not the Claim Forms were presented timeously for at least some of the matters alleged is in dispute, and is an issue that will be addressed by evidence.[68]I would note further that the terms of section 123 of the 2010 Act with regard to “conduct extending over a period is to be treated as occurring when the person in question decides on it” is not found in section 111, where the foundation is the concept of the effective date of termination – a specific and identified date. The reference to conduct is to a concept of fact. Where that fact is disputed it appears to me that the words used in the sub-section infer resolution of that dispute by evidence.[69]Issues of jurisdiction are matters that a Tribunal must take account of. They determine whether or not the Tribunal, as a creature of statute, has the ability to hear the matter. Some issues of jurisdiction on issues of timebar may be clear from their face. Newquay is a further example of a case where there was a discrete period of time involved which had ended, such that unless it was just and equitable to extend time it was outwith the jurisdiction of the Tribunal.[70]There are other cases however where that clarity on timing is lacking. This case is one of them. The pleadings in the Claim Forms include matters in respect of which a timebar point has been taken by the respondent, and others where it has not. To take the initial facts set out above from Claim Form (i), the alleged acts in April 2018 and November 2018 are outwith the primary timelimit unless they are part of conduct extending over a period that itself lasts to a date no less than three months prior to the start of early conciliation. That first Claim Form then refers to alleged acts in July 2019. Early Conciliation was not commenced until November 2019. On the face of it, the July 2019 matters in isolation may also be out of time, subject to the issue of a just and equitable extension under section 123. If there is then consideration of Claim (vii), for example, it includes the same initial facts in April and November 2018, but then further alleged acts in August 2019 and October 2019 for example. If all of these acts are established in evidence as having occurred, and then considered together as conduct extending over a period to October 2019, all the acts alleged against at least the first respondent in that period, from April 2018 to October 2019, then fall within a period ending on a date within which early conciliation was timeously commenced, and the Claim Form on that basis appears to have been submitted in time (subject to any argument that the respondents may raise on these issues).[71]Similar considerations arise in the other Claim Forms. How these issues of timebar are to be addressed is dealt with in the Note about case management of even date with this Judgment, in which it is stated that the respondents agreed that it is to be reserved for determination at the Final Hearing. Regardless of the allowance or refusal of the amendment therefore, in the present case there requires to be consideration of evidence on issues of jurisdiction for acts pled which may or may not be held to be raised timeously such as to be within the jurisdiction of the Tribunal.[72]The facts alleged by the claimant in the amendment application include that there was conduct extending over a period, and that it is just and equitable to allow them if late, the law on which is addressed further below. The respondents deny the alleged acts that are the subject of the amendment took place, that they or any of them were part of conduct extending over a period and that it would be just and equitable to extend jurisdiction to them if they are otherwise out of time.[73]I consider that whether or not the alleged acts occurred, and if so whether they are part of conduct extending over a period, where they are sought to be added to the pleadings by amendment, can only properly be determined by evidence in the present case. The alternative is to try to make an assessment of the amendment based purely on submission, where there are competing arguments as to fact and a very limited basis on which it is possible to assess which party is right, and to what extent, but also in the circumstances of the present case where the existing issues of jurisdiction, on the facts pled in the Claim Forms, will in any event be determined by evidence.[74]In the issue was whether there had been unlawful deduction from wages in respect of holiday pay, and on the basis of Bear Scotland v Fulton and another [2015] ICR 221 an issue of timebar arose if a claim was not presented within three months of when the sum was said to be due in each case. That was a claim under the 1996 Act where the test was of reasonable practicability, in circumstances where there had been a Claim presented for other earlier alleged deductions. Whilst the report is not specific on the point, it does not seem that reasonable practicability was argued, rather there was reference to whether the principle in Fulton was itself under further appeal.[75]The EAT said the following in relation to Selkent, Rawson and Newquay: “It is clear from these authorities that the usual principles for amendment of a claim include a requirement to determine at the stage of exercising discretion to grant or refuse the application(i) whether the amendment seeks to bring in a claim that would otherwise be time barred and(ii) if so, whether there are good reasons, taking into account injustices and hardship that may be the result, to grant the amendment notwithstanding that the effect will be to allow the amending party to avoid the usual consequences of presenting a claim out of time.”[76]That analysis is contradicted by the decision in Galilee, and is contrary to the decision in Marsden, which does not appear to have been cited in Amey.[77]In light of the foregoing analysis and with respect I do not consider that the Amey quotation that there is a requirement to determine the issue of timebar when considering whether or not to exercise discretion to allow or refuse an application to amend is correct if it was intended to be an absolute rule. It may not have been so intended as there is reference to “the usual principles”, which does on one construction admit of exceptions.[78]Rawson was a case where a claimant sought to introduce out of time a new claim of disability discrimination which had not been pled initially. The appeal was allowed, but the reason for that was that the Judge had not in terms considered the issue of whether it was just and equitable to allow the claim to proceed. If it was, that would point strongly but not determinatively towards allowing the application to amend, and if not it would point strongly but not determinatively against that. The EAT did not specifically address the point of whether a factual dispute, if there was such, could be reserved for decision after allowing the amendment.[79]Selkent also stated specifically that in addition to the three factors referred to all of the circumstances required to be taken into consideration, and I respectfully agree with the EAT in Galilee when it stated in relation to the use of the word 'essential' in relation to considering time limits should not be taken “in an absolutely literal sense and applied in a rigid and inflexible way so as to create an invariable and mandatory rule that all out of time issues should be decided before permission to amend can be considered”[80]Selkent did not consider whether there may be a disputed issue of fact in relation to jurisdiction.[81]I do not consider that to take a decision on an amendment which may or may not be timebarred, dependent on disputed facts concerning conduct extending over a period quite apart from what is just and equitable, in the absence of evidence on those facts, could be in accordance with the overriding objective as it would not be just to do so. Whilst the terms of the overriding objective do not give carte blanche to do as one wishes, the Tribunal requires to give effect to the Rule when exercising any power given to it by the Rules, which includes that for case management.[82]I therefore consider that the Galilee line of authority is to be followed, at least in the circumstances of the present case, although I do so for somewhat different reasons than those set out there and having regard also to the law and practice in the Scottish courts referred to above, rather than the law and practice in England.[83]It follows from my conclusion that an amendment can be allowed in whole or part subject, in a case where there is a dispute on facts material to the issue of whether a claim in relation to timebar is within the jurisdiction of the Tribunal, to those facts being determined by evidence, on which case management is required to address the procedure to be followed. I consider that the ability to reserve the issue of jurisdiction in such a manner is a matter to take into account when considering the issue of timebar in the exercise of discretion.[84]I turn to address the arguments in relation to section A. I do so initially for the position of the first respondent, as employer. (i) Direct race discrimination in respect of training and promotion in the period July 2014 to February 2017[85]Having regard to all the circumstances I do not consider that the amendment should be allowed. Firstly the nature of the amendment contradicts the initial pleading to the effect that initially the claimant had a good relationship with the first respondent and other respondents as its management up to November 2018. Secondly the period of time stated is that ending in February 2017. It cannot therefore extend beyond that date, and is pursued around three years outwith the statutory time limit. Thirdly it is in any event not a claim that is likely to add materially to the claimant’s remedy if his other claims are successful, and there would be hardship on the first respondent in seeking to defend such an old claim. All of the factors in Selkent are against the allowing of this part of the application. It is therefore refused. (ii) Harassment on grounds of race in February 2018[86]Firstly on the nature of the amendment, the claimant has existing claims of harassment in his Claim Form. In that context, the allegation of similar alleged conduct two months earlier he seeks to raise by amendment which was not raised in the first Claim Form but could have been is directly contradicted by the terms of the initial Claim Form details referred to above, which state that his relationship with the sixth respondent was “good” until April 2018. There is an issue of timebar that could be addressed by reserving it as noted above, but whether to do so depends on all the circumstances. The timing and manner of the application is not adequately explained, in that if such an issue had arisen it could have been within the Claim Form. The present application is in that context not one that I consider meets the Selkent factors, particularly in that the nature of the amendment is contradicted directly by the claimant’s own pleadings. It is therefore refused. (iii) Harassment on grounds of race in April 2018[87]The application is made in respect of matters that follow on from those in February 2018 addressed above. I consider that this application to amend should not be allowed on the same basis accordingly. There are separate allegations made about matters said to have arisen in April 2018, in particular about comments by the sixth respondent, which are already pleaded and not affected by that decision. (iv) Indirect discrimination and harassment on grounds of race in May[88]Whilst there is a claim of indirect discrimination already pled in the Claim Forms as referred to above, the claimant did not I consider articulate either in the written application to amend or during the hearing before me a provision, criterion or practice which could be the basis for a claim under this section. The nature of the claim made is therefore not clear and that tells against the application. The period is given as May 2018, and whilst it could be an issue reserved as set out above whether to do so depends on all the circumstances. On the timing and manner of the application I note that there was a claim of indirect discrimination pled in the original Claim Forms, the detail of which is summarised above. There is no explanation given as to why it was not included within that Claim Form. A claim of indirect discrimination is very different in kind to that of direct discrimination, and the argument the claimant made in relation to this aspect of the amendment was, as Mr McFadzean argued during the hearing, more relevant to a claim of direct discrimination. I consider that the claim of indirect discrimination is very likely to fail, and in any event if the other allegations the claimant makes are accepted the issue of indirect discrimination is not likely to add materially to remedy. In all the circumstances that part of the application alleging indirect discrimination is refused.[89]In so far as it may provide further specification of the claim for harassment different considerations may apply. The amendment alleges that the claimant reported the incidents to Ms Carter, and thereafter an apology by the sixth respondent was tendered and accepted. The claimant alleges, to summarise a long section, that the first, second and fifth respondent did not react appropriately to what had happened. It is therefore an allegation of matters that arose from the April 2018 incident already pled, and although it is contradicted to an extent by the pleading to the effect that the relationship with management was good until November 2018 I consider that in the circumstances it should be allowed on the basis that it provides further specification of the claim of harassment, on the basis that it is subject to evidence as to whether it falls within the jurisdiction of the Tribunal as set out above. (v) Direct discrimination, disability discrimination and discrimination on grounds of marriage in July 2018[90]The claims of disability discrimination and marriage discrimination are entirely new both as to fact and law, are in the third category referred to above, and the nature of the amendment being so different to the original pleadings tells against allowing the amendment. On the issue of time bar on the face of them these claims are far outwith the statutory time limits, and there is no suggestion of conduct extending over a period for these allegations. I do not consider that it would be just and equitable to allow them to be received so late, with difficulties for the respondent in investigating issues that are well outwith the primary time limit, and new. Finally there is no adequate explanation as to why they were not raised in the original pleadings if they were considered to be matters that were material. I consider that they are claims that fail the Selkent factors clearly. The application in this regard is refused.[91]In relation to the claim of direct discrimination it is far from clear what if anything the amendment does to add to his existing pleadings, which refer to events in July 2018 but with something of a different emphasis of fact. Having regard to the Selkent factors referred to I consider that this aspect of the application is also to be refused. (vi) Direct race discrimination in November 2018[92]This is also a long section, which includes allegations as to protected disclosures, direct discrimination and victimisation dating from November 2018. The nature of the amendment sought is I consider not clear, it focusses more on health and safety issues concerning his being required to remain on shift when another staff member fell ill, and its potential connection to other matters pled is not as clear as it might be. What had been pled was that on 26 November 2018 the claimant “raised concerns about persistent negligent work practices putting the health and safety of the service user, members of staff and members of the public at a significant risk of harm.” The amendment is at least generally related to that, although it focusses on the claimant’s own position, and what is said to be harassment of him. I consider that it builds on the original pleadings at least to a material extent, and comes within the first category of providing additional particulars rather than an entirely new claim. Secondly the issue of timebar can be addressed by reserving it as I have stated. Thirdly although the claimant presented ten different Claim Forms his pleading on the November 2018 incidents was brief. On balance I consider that the amendment sought does meet the Selkent factors. It is therefore allowed, on the same basis that whether it falls within the jurisdiction of the Tribunal is reserved. (vii) Failure to provide rest breaks under the Working Time Regulations 1998 and a detriment under section 45A of the Employment Rights Act 1996 in the period February 2016 to September 2019[93]The period stated ended in September 2019. Given that early conciliation for the first respondent led to a certificate on 13 November 2019, any Claim Form required to be submitted by 13 December 2019 if it was to be potentially in time. The amendment application was made about six months after that. The timebar provision for this claim, made under the 1996 Act, is of reasonable practicability and then a reasonable period. There was nothing material put forward as to why the claimant was not able to make this claim earlier. He must have been aware of when rest breaks were or were not afforded. Mere ignorance of a right is not sufficient, as there require to be reasonable steps taken to find out about rights. In all the circumstances this claim is I consider clearly time-barred, and that that is a strong factor suggesting that it should be refused. It is also not at all clear why it was not pursued with the first set of Claim Forms, and is only pursued now. No proper reason for it being submitted as late as it has been has been put forward. It appears to me that it was not submitted within a reasonable period in any event. It is accordingly on the face of it timebarred. It is a claim entirely different in kind to that which was pled in the Claim Forms. There is no hint of such a claim in those Claim Forms, and having regard to the test in Selkent and to the guidance in Bryant I consider that this application must be refused. The second, fourth, fifth and sixth respondents[94]Matters are more complex still in relation to the position of the second, fourth, fifth and sixth respondents than they are for the position of the first respondent. The issue of what is pled in relation to them is different to that in relation to the first respondent, and to each other. For the first respondent, the argument over conduct extending over a period may be more ‘expansive’ as it may, dependent on the circumstances, be appropriate to regard some or all of the individual incidents as being the acts of the first respondent as employer. For the remaining respondents however the position must be assessed individually. What each is said to have done, and when, varies. In light of the terms of the Further and Better Particulars which have been accepted but which were provided in respect of the first claim, which followed the Preliminary Hearing when the number of Claims made was the subject of comment, and the decision to conjoin all of the claims, is not easy to discern. Whether there is conduct extending over a period for each of them is again dependent on the facts found, and is then a question of fact and degree. The extent to which it is just and equitable to allow any late claim to proceed may vary as between those respondents, dependent on the individual circumstances.[95]I have concluded however that it is appropriate at the stage of an application for amendment to treat the position of each of those respondents in the same general manner as that for the first respondent, and where an amendment is allowed that affects a claim pled against them to allow it on the same basis as to jurisdiction. New respondents[96]Finally, I turn to the application to add new respondents in section B. Firstly, I note that Mr Aeden Burt is already named as a respondent in some of the Claim Forms. The claims have already been ordered to be heard together, and the claimant has provided Further and Better Particulars. The application made to add Mr Aeden Burt, who is the sixth respondent, is I consider unnecessary in light of that, and is refused.[97]Ms Cath Carter was an employee of the first respondent until 9 September 2018 I was informed. Her involvement was alleged to be for matters A (i) and (iii). The first of those has been refused. The second was allowed but the basis on which she is said to have legal responsibility is at best unclear, and I do not consider that the claimant has demonstrated a material benefit in law to the addition of a further respondent in her position. I consider that in light of that, the application for her should be refused.[98]The third person the claimant sought to introduce as respondent was Ms Fiona Mundy. Her position is in some respects materially different, in that she is a Trustee of the first respondent, and a decision maker in at least some respects, which may be important ones. She is sought to be convened for issues B (iii) and (iv), in respect of which no issue of time bar arises, and the claims include direct discrimination, harassment and victimisation. The claimant’s position in this respect is accordingly stronger than for Ms Carter, but the respondents argue that it should be refused. I note further that Ms Mundy was referred to in Claim Form (viii), but not then convened as an additional respondent although she could have been so at that time. Whilst matters have developed from there, including with a dismissal, the dismissal is an act of the first respondent as employer. The first respondent is a Trust, and it was accepted by the claimant that it has offered to meet any award, and has the funds to do so. There is no defence taken by the first respondent that it is not liable for the acts of the terms of sections 111 and 112 of the 2010 Act, however at least some basis in law for a claim against Ms Mundy as an individual is available on the basis of those provisions.[99]I ascertained from the claimant that he had not commenced early conciliation against Ms Mundy. That however is not an absolute bar to allowing the amendment sought, as explained in Mist v Derby Community HNS Trust [2016] ICR 543.[100]There are factors that point both ways in considering this part of the application to amend, and the decision is not a straightforward one in light of that. I have concluded on balance that as the claimant has not suggested that convening the prospective seventh respondent makes a practical difference to the outcome of the case it is not in accordance with the overriding objective to allow the amendment application to add Ms Mundy as another respondent with the additional cost, and potentially delay, that doing so may incur. It is therefore refused. The claimant is able to pursue all acts or omissions of Ms Mundy in his claim against the first respondent, and either she will be called as a witness by them, or if he wishes and they do not undertake to do so, he may seek a witness order under Rule 31.
Conclusion
[101]The claim against the third respondent having been withdrawn is dismissed under Rule 52.[102]The application to amend is allowed in part, subject to the issue of jurisdiction, as set out above.
The law
[110]Liability of employees and agents(1) A person (A) contravenes this section if— (a) A is an employee or agent, (b) A does something which, by virtue of section 109(1) or (2), is treated as having been done by A's employer or principal (as the case may be), and (c) the doing of that thing by A amounts to a contravention of this Act by the employer or principal (as the case may be).(2) It does not matter whether, in any proceedings, the employer is found not to have contravened this Act by virtue of section 109(4).(3) A does not contravene this section if— (a) A relies on a statement by the employer or principal that doing that thing is not a contravention of this Act, and (b) it is reasonable for A to do so.(4) A person (B) commits an offence if B knowingly or recklessly makes a statement mentioned in subsection (3)(a) which is false or misleading in a material respect.(5) A person guilty of an offence under subsection (4) is liable on summary conviction to a fine not exceeding level 5 on the standard scale. [(5A) A does not contravene this section if A— (a) does not conduct a relevant marriage, (b) is not present at, does not carry out, or does not otherwise participate in, a relevant marriage, or (c) does not consent to a relevant marriage being conducted, for the reason that the marriage is the marriage of a same sex couple. (5B) Subsection (5A) applies to A only if A is within the meaning of “person” for the purposes of section 2 of the Marriage (Same Sex Couples) Act 2013; and other expressions used in subsection (5A) and section 2 of that Act have the same meanings in that subsection as in that section.] [(5BA) If A is a protected person, A does not contravene this section if A— (a) does not allow religious premises to be used as the place at which two people register as civil partners of each other under Part 2 of the Civil Partnership Act 2004 (“the 2004 Act”), or (b) does not provide, arrange, facilitate or participate in, or is not present at— (i) an occasion during which two people register as civil partners of each other on religious premises under Part 2 of the 2004 Act, or (ii) a ceremony or event in England or Wales to mark the formation of a civil partnership, for the reason that the person does not wish to do things of that sort in relation to civil partnerships generally, or those between two people of the same sex, or those between two people of the opposite sex. (5BB) In subsection (5BA)— “protected person” has the meaning given by section 30ZA(2) of the 2004 Act; “religious premises” has the meaning given by section 6A(3C) of the 2004 Act.] [(5C) A does not contravene this section by refusing to solemnise a relevant Scottish marriage for the reason that the marriage is the marriage of two persons of the same sex. (5D) A does not contravene this section by refusing to register a relevant Scottish civil partnership for the reason that the civil partnership is between two persons of the same sex. (5E) Subsections (5C) and (5D) apply only if A is an approved celebrant. (5F) Expressions used in subsections (5C) to (5E) have the same meaning as in paragraph 25B of Schedule 3. (5G) A chaplain does not contravene this section by refusing to solemnise a relevant Scottish forces marriage for the reason that the marriage is the marriage of two persons of the same sex. (5H) Expressions used in subsection (5G) have the same meaning as in paragraph 25C of Schedule 3.](6) Part 9 (enforcement) applies to a contravention of this section by A as if it were the contravention mentioned in subsection (1)(c).(7) The reference in subsection (1)(c) to a contravention of this Act does not include a reference to disability discrimination in contravention of Chapter 1 of Part 6 (schools).[111]Instructing, causing or inducing contraventions(1) A person (A) must not instruct another (B) to do in relation to a third person (C) anything which contravenes Part 3, 4, 5, 6 or 7 or section 108(1) or(2) or 112(1) (a basic contravention). (2) A person (A) must not cause another (B) to do in relation to a third person (C) anything which is a basic contravention.(3) A person (A) must not induce another (B) to do in relation to a third person (C) anything which is a basic contravention.(4) For the purposes of subsection (3), inducement may be direct or indirect.(5) Proceedings for a contravention of this section may be brought— (a) by B, if B is subjected to a detriment as a result of A's conduct; (b) by C, if C is subjected to a detriment as a result of A's conduct; (c) by the Commission.(6) For the purposes of subsection (5), it does not matter whether— (a) the basic contravention occurs; (b) any other proceedings are, or may be, brought in relation to A's conduct.(7) This section does not apply unless the relationship between A and B is such that A is in a position to commit a basic contravention in relation to B.(8) A reference in this section to causing or inducing a person to do something includes a reference to attempting to cause or induce the person to do it.(9) For the purposes of Part 9 (enforcement), a contravention of this section is to be treated as relating— (a) in a case within subsection (5)(a), to the Part of this Act which, because of the relationship between A and B, A is in a position to contravene in relation to B; (b) in a case within subsection (5)(b), to the Part of this Act which, because of the relationship between B and C, B is in a position to contravene in relation to C.[112]Aiding contraventions(1) A person (A) must not knowingly help another (B) to do anything which contravenes Part 3, 4, 5, 6 or 7 or section 108(1) or(2) or 111 (a basic contravention). (2) It is not a contravention of subsection (1) if— (a) A relies on a statement by B that the act for which the help is given does not contravene this Act, and (b) it is reasonable for A to do so.(3) B commits an offence if B knowingly or recklessly makes a statement mentioned in subsection (2)(a) which is false or misleading in a material respect.(4) A person guilty of an offence under subsection (3) is liable on summary conviction to a fine not exceeding level 5 on the standard scale.(5) For the purposes of Part 9 (enforcement), a contravention of this section is to be treated as relating to the provision of this Act to which the basic contravention relates.(6) The reference in subsection (1) to a basic contravention does not include a reference to disability discrimination in contravention of Chapter 1 of Part 6 (schools).” 19. In cases of public interest disclosures for detriment, a claim can competently be brought against a fellow worker. Section 47B(1A) of the Employment Rights Act 1996 provides that a worker has the right not to be subjected to a detriment on the ground of having made a protected disclosure by a fellow worker. The right not to be dismissed for making a protected disclosure is provided for in section 103A. Section 47B does not apply where the worker is an employee who is dismissed, under subsection (2). 20. Section 43K of that Act has an extended definition of “worker” under subsection (1)(a) as a person who “works or worked for a person in circumstances where (i) He is or was introduced or supplied to do that work by a third person, and (ii) the terms on which he is or was engaged to do the work are or were in practice substantially determined not by him but by the person for whom he works or worked, by the third person, or by both of them.” 21. Section 43K(2)(a) states that employer includes “in relation to a worker falling within paragraph (a) of sub-section (1) the person who substantially determines or determined the terms on which he is or was engaged” 22. The EAT held that the striking out process requires a two-stage test in HM Prison Service v Dolby [2003] IRLR 694, and in Hassan v Tesco Stores Ltd UKEAT/0098/16. The first stage involves a finding that one of the specified grounds for striking out has been established; and, if it has, the second stage requires the tribunal to decide as a matter of discretion whether to strike out the claim. In Hassan Lady Wise stated that the second stage is important as it is 'a fundamental cross check to avoid the bringing to an end prematurely of a claim that may yet have merit' (paragraph 19). 23. As a general principle, discrimination cases should not be struck out except in the very clearest circumstances. In Anyanwu v South Bank Students' Union [2001] IRLR 305, a race discrimination case heard in the House of Lords, Lord Steyn stated at paragraph 24: ''For my part such vagaries in discrimination jurisprudence underline the importance of not striking out such claims as an abuse of the process except in the most obvious and plainest cases. Discrimination cases are generally fact-sensitive, and their proper determination is always vital in our pluralistic society. In this field perhaps more than any other the bias in favour of a claim being examined on the merits or demerits of its particular facts is a matter of high public interest.'' 24. Lord Hope of Craighead stated at paragraph 37: '' … discrimination issues of the kind which have been raised in this case should as a general rule be decided only after hearing the evidence. The questions of law that have to be determined are often highly fact-sensitive. The risk of injustice is minimised if the answers to these questions are deferred until all the facts are out. The tribunal can then base its decision on its findings of fact rather than on assumptions as to what the claimant may be able to establish if given an opportunity to lead evidence.'' 25. Those comments have been held to apply equally to other similar claims, such as to public interest disclosure claims in Ezsias v North Glamorgan NHS Trust [2007] IRLR 603. The Court of Appeal there considered that such cases ought not, other than in exceptional circumstances, to be struck out on the ground that they have no reasonable prospect of success without hearing evidence and considering them on their merits. The following remarks were made at paragraph 29: “It seems to me that on any basis there is a crucial core of disputed facts in this case that is not susceptible to determination otherwise than by hearing and evaluating the evidence.” 26. In Tayside Public Transport Co Ltd (trading as Travel Dundee) v Reilly [2012] IRLR 755, the following summary was given at paragraph 30: “Counsel are agreed that the power conferred by rule 18(7)(b) may be exercised only in rare circumstances. It has been described as draconian (Balls v Downham Market High School and College [2011] IRLR 217, para 4 (EAT)). In almost every case the decision in an unfair dismissal claim is fact-sensitive. Therefore where the central facts are in dispute, a claim should be struck out only in the most exceptional circumstances. Where there is a serious dispute on the crucial facts, it is not for the tribunal to conduct an impromptu trial of the facts (ED & F Man Liquid Products Ltd v Patel [2003] CP Rep 51, Potter LJ, at para 10). There may be cases where it is instantly demonstrable that the central facts in the claim are untrue; for example, where the alleged facts are conclusively disproved by the productions (ED & F Man … ; Ezsias …). But in the normal case where there is a ‘crucial core of disputed facts’, it is an error of law for the tribunal to pre-empt the determination of a full hearing by striking out (Ezsias … Maurice Kay LJ, at para 29).” 27. In Ukegheson v Haringey London Borough Council [2015] ICR 1285, it was clarified that there are no formal categories where striking out is not permitted at all. It is therefore competent to strike out a case such as the present, although in that case the Tribunal’s striking out of discrimination claims was reversed on appeal. 28. That it is competent to strike out a discrimination claim was made clear also in Ahir v British Airways plc [2017] EWCA Civ 1392, in which Lord Justice Elias stated that “Employment Tribunals should not be deterred from striking out claims, including discrimination claims, which involve a dispute of fact if they are satisfied that there is indeed no reasonable prospect of the facts necessary to liability being established, and also provided they are keenly aware of the danger of reaching such a conclusion in circumstances where the full evidence has not been heard and explored, perhaps particularly in a discrimination context.” 29. In Mechkarov v Citi Bank NA [2016] ICR 1121 the EAT summarised the law as follows: “(a) only in the clearest case should a discrimination claim be struck out; (b) where there were core issues of fact that turned on oral evidence, they should not be decided without hearing oral evidence; (c) the claimant’s case must ordinarily be taken at its highest; (d) if the claimant’s case was ‘conclusively disproved by’ or was ‘totally and inexplicably inconsistent’ with undisputed contemporaneous documents, it could be struck out; (e) a tribunal should not conduct an impromptu mini-trial of oral evidence to resolve core disputed facts.” Discussion 30. The standard against which the application for strike out must be judged is a very high one. It is only in the clearest of cases, in which there is no core of disputed fact, that it is permissible. When considering claims made by those who are representing themselves it is not sufficient only to consider the case as pled, but all the material before the Tribunal, (see for example Morgan v DHL Services Ltd UKEAT/0246/19). One of the difficulties in this case is the less than clear way in which the claimant has set matters out. Precisely what he claims, and why, is not easy to decern. His documents include issues that may or may not properly be before the Tribunal, such as claims under sections 100 or 104 of the Employment Rights Act 1996 to which he referred in a message dated 28 September 2020. The claims under section 47B and 103A were discussed during the hearing, although the respondent argues that they are not before the Tribunal. The extent of the issues before the Tribunal has also not yet been finalised as the parties have not agreed that, or the issue determined by case management, and the claimant’s appeal against the earlier refusal of part of his application to amend is outstanding. That is not an entirely sold background on which to assess the current applications. The claimant has not obtained independent legal advice, but has referred to both statutory provisions and authority which indicate both much research on the points, and some understanding of the complexities of the law in this area. 31. I have decided that the sixth respondent has not met the test for strike out of the claims made under the Equality Act 2010. It is clear that the sixth respondent was not an employee of the first respondent, nor was he a worker (the claimant accepted both of those matters). There is no basis put forward that could lead to a conclusion that the sixth respondent was an agent of the first respondent. He was the beneficiary of the trust itself, being the first respondent. I then considered the terms of section 111 of the 2010 Act. In sub-section (1) A would be the sixth respondent, B either the first respondent or one of its employees and C the claimant. A basic contravention is defined in that sub-section and includes the terms of section 39 as to detriment or dismissal. The section refers to instructing, causing or inducing discrimination (with inducing being direct or indirect). The terms of sub-section (7) are not as clear as they might be. They require that the sixth respondent be in a position to commit a basic contravention in relation to the first respondent or one of its employees. I was not referred to, nor have I found, any authority which explains that term, or any other source of material to shed light on its intended meaning. It appears to me, on what may be termed a provisional basis, that its meaning is that the sixth respondent must be shown to have had a sufficient degree of control or influence so as to be able to instruct, cause or induce the discriminatory act. Other meanings are however possible, and it may well be that the meaning and effect of the clause are best determined after all of the evidence has been heard. That will include what did, or did not, take place involving the sixth respondent. It is at least arguable that its meaning is not such that the sixth respondent is always excluded from the terms of the section. The section is drafted in a reasonably wide manner. It is to be construed purposively. It is possible, and it can be put no higher, that the evidence may show that the sixth respondent acted in a way which did either instruct, cause or induce (directly or indirectly) decisions of which the claimant complains, such as to take the claimant off a shift for the attendance of the sixth respondent at a wedding, that the claimant was then not offered other shifts, and that he was then dismissed. It is possible that the acts involving the sixth respondent in that regard, if they occurred, were conduct extending over a period. They may not be in either of those cases, but at this stage one cannot know. 32. I then turned to section 112. There is no equivalent to section 111(7) in that section, and the issue is whether the sixth respondent “aided” a contravention of the Act under its terms. That is a question of fact. It is at least arguable that the sixth respondent did so, if one considers the events in April 2018, and the alleged involvement of the sixth respondent to some extent in decisions taken as to the shifts referred to above, and the later dismissal. Whether there was that involvement and if so to what extent, then whether that meets the definition of the term “aided”, depends on the evidence. But at this stage I must take the claimant’s case at its highest. I do so having regard to the documentation he has referred to, his pleadings, and the submission he made. It is true that the pleadings remain not clear in some respects, and the issues are yet to be finalised, but there is I consider a sufficient basis provided by the claimant in his submissions to me such that it is not possible to say that there are no reasonable prospects of success in the claims under the 2010 Act. 33. I also took into account that the respondent argues that the Tribunal has no jurisdiction on these issues because of time-bar. That however depends firstly on what the facts found are. They include the issue of whether or not there was conduct by the sixth respondent extending over a period, and if so what period, under section 123 of the 2010 Act. That depends on the evidence led on the same, and at this stage one cannot know how that issue will be determined. In so far as the sixth respondent is concerned, it is for example asserted that he had induced, or aided, the decision not to offer him any shifts, and that that continued up to the point of dismissal. There are other issues arising, but if that is held to have been established in the evidence it is possible that the claims against the sixth respondent are not subject to the primary time bar. If it is otherwise there is the secondary issue of whether it is in any event just and equitable to allow it to proceed, also under section 123. That depends on all the circumstances, and it has been accepted, as set out in the Note following the last Preliminary Hearing, that these issues are best addressed at a Final Hearing. There is at least a possibility of the claimant prevailing on all or some of these issues, and as such I cannot say that the claimant has no reasonable prospects of success on such points. 34. That is far from saying that there are reasonable prospects of success in the claims against the sixth respondent, or that the claims may succeed in whole or part, but the test is as described a high one. I consider that the respondent has not met it. The application to strike out the claims under the 2010 Act raised against the sixth respondent must therefore fail. 35. I turn to the claim as to protected disclosures, otherwise referred to as whistle-blowing. I shall proceed on the basis that the claims are properly before the Tribunal in the sense that they have been pled sufficiently and competently. That issue is one that is not yet determined but for the purposes of a strike out application it is appropriate to assume that that is so. The first difficulty for the claimant in his claim (not against the first respondent his employer, as that is a separate matter) against the sixth respondent is the terms of section 47(2), which provide that the section does not apply where the worker is an employee and the detriment is dismissal. The claimant was an employee. He was dismissed. That dismissal was by the first respondent as his employer. The import of the provision is that in such a situation no claim lies against another worker for a dismissal alleged to be automatically unfair where the reason or principal reason is that the claimant had made a protected disclosure. 36. The second difficulty for the claimant is the terms of section 47(1A) which provide that “A worker (W) has the right not to be subjected to any detriment by any act, or a deliberate failure to act, done – (a) by another worker of W’s employer in the course of that other worker’s employment or (b) by an agent of W’s employer with the employer’s authority”. 37. That is the foundation of the claim by the claimant in respect of detriment, and dismissal, for having made protected disclosures as laid against the sixth respondent. The sixth respondent is not however another worker of the first respondent, as the claimant accepted. The sixth respondent is not a worker who has worked for the first respondent at any stage. The claimant was not introduced to the first respondent to work for it at all, let alone by the sixth respondent. There is no basis to hold that the claimant could fall within the terms of section 43K. 38. There is also no basis to conclude that the sixth respondent was an agent of the first respondent acting with authority as referred to above. The two potential routes for a claim against the sixth respondent are therefore not met for either detriment or dismissal, and for the latter the issue of dismissal cannot be raised by someone said to be a worker in any event, where the claimant is an employee, as here. That means that the sole rights to claim unfair dismissal (automatically under section 103A) and for any detriments lies against the first respondent, the employer. 39. The claimant sought to argue that that conclusion should not be reached. He did so by three methods, firstly by reference to the Human Rights Act 1998, secondly by reference to the terms of the 1996 Act and thirdly by reference to case law. 40. On the first of these, I am not satisfied that any argument under that Act lies in the present circumstances. The claimant has a right to a fair trial, and a right to freedom of expression, but those rights are not directly justiciable in the Employment Tribunal. Whist the Tribunal is a public authority and has duties under that Act, the claims made against the first respondent, and others, are to proceed to a Final Hearing in due course, and the claimant will have a fair trial of his claims. He does not have a right to choose against whom he can claim. That right is conferred on parties, and the Tribunal, by statutory provision. The claimant sought to argue that he had a right under the 1998 Act to be able to sue the sixth respondent as an individual, but such a right does not I consider flow from the terms of the 1998 Act. The rights the claimant has are those deriving from statute, in this case the 1996 Act and the 2010 Act, and they have the provisions to which I have referred, which I do not consider can be said to be in breach of the Human Rights Act 1998. 41. The second argument was made in relation to section 43K of the 1996 Act, and that its terms should be construed so as to permit the claims against the sixth respondent. In my judgment that section extends the definition of worker so as to extend the class of persons who may make claims, not the class of persons against whom claims can be made. That is I consider the purpose of that provision derived from its terms, and the scheme of the Act as a whole. In this regard it is relevant to repeat the fact that the claimant has a claim against the first respondent as his employer. He is not being prevented from arguing either ordinary unfair dismissal under section 94, or automatically unfair dismissal under section 103A, nor (so far as the claims are made, which is disputed by the respondent) detriment under section 47B as against the first respondent, where those claims are within the jurisdiction of the Tribunal. 42. The third argument was made in relation to a number of authorities. The claimant’s argument, in summary, is that a purposive construction should be given to the statute so as to confer on the claimant a right to pursue his claim against the sixth respondent in light of that body of authority. I have considered them all, but do not consider that they support the argument that the claimant makes. The facts and circumstances of those claims were entirely different. They were not similar to the circumstances of the present case where the claimant, an employee and who has claims related to protected disclosures against his employer the first respondent, also seeks to make claims against an individual who was not employed by the first respondent either as an employee, or a worker. 43. Gilham v Ministry of Justice [2019] UKSC 44, was an issue as to whether a Judge was a worker entitled to claim in respect of whistleblowing at the Employment Tribunal. It was held that she was, and although it is correct to note that at paragraphs 26 and 27 reference was made to her human rights there was a reference to a right to claim in court, and secondly that the decision was to utilise a purposive construction to allow the definition of worker to extend to a Judge in her circumstances partly as the failure to do so would deny her a Tribunal remedy. That was where she otherwise could not pursue a claim of whistle-blowing against any other party. The claimant can pursue his claim against the first respondent. He wishes to do so it also against the sixth respondent. I do not consider that that case would permit me to find that he can. It would not serve any purpose of the legislation as he does have the claim agains the first respondent. It would require such a departure from the terms of the statute that would not be a permissible interpretation. It would go against the grain of the legislation, particularly the terms of section 47(2). 44. Campbell v Mirror Group Newspapers Ltd [2004] UKHL 22 did not appear to me to have any relevance to the issues before me, and dealt with different rights, involving the disclosure of drug addiction of a model. The claimant did not give a full citation, and if the case above is not that which he referred to he may raise that separately by an application for reconsideration. 45. McTigue v University Hospital Bristol NHS Trust 2016 IRLR 742, in which the claimant was an employee of an agency and was engaged to work for the respondent at one of their centres, was then referred to. She had a written contract of employment with the agency and was also issued with an Honorary Appointment or contract by the respondent. She made claims based on her having made protected disclosures to the respondent, alleging that she was subjected to detriments (including her removal from the engagement) by the Respondent. The Tribunal held that she had not satisfied the terms of section.43K(1)(a)(ii), but the EAT allowed the appeal. It was sufficient that the respondent substantially determined the terms on which she was engaged to do the work. If both the agency and the respondent substantially determined the terms of her engagement, the fact that the respondent substantially determined the terms of her engagement meant that the Respondent was her 'employer' for the purposes of s.43K(2)(a). That is however very different from the circumstances of the claimant, which are referred to above, and that case was not one about seeking to convene an individual. It was also a case involving an agency worker, which the claimant was not. Whilst he sought to argue that he was employed by the sixth respondent, there is I consider no basis to do so. As an employee of the first respondent, the terms of section 43 are not engaged in respect of the claimant. A purposive construction may be appropriate where there is otherwise no remedy available but here the claimant has a remedy if his allegations are upheld, against the first respondent. 46. In Day v Lewisham and Greenwich NHS Trust [2017] EWCA Civ 329 an appeal was allowed by the Court of Appeal in not dissimilar circumstances to those in the preceding case, as the Tribunal had applied the wrong test; it was asking itself which party, as between two, played the greater role in determining the terms on which the claimant was engaged. It did not envisage the possibility that both could substantially determine the terms of engagement. The court rejected the submission that the Tribunal would have been bound to find in favour of the Claimant had it properly directed itself and this matter was remitted to a fresh Tribunal. It is true that it was clearly Parliament's intent in this section to extend the protection of the whistleblowing provisions, and a court or tribunal in interpreting and applying it should, in a case of ambiguity, seek a solution applying that extension rather than limiting it: Hinds v Keppel Seghers UK Ltd [2014] IRLR 754. (a case which the claimant did not cite to me but which my researches led to) I do not consider that there is ambiguity either in relation to the statutory provisions for the reasons given, or requiring extension in relation to the claimant’s circumstances where his claim lies separately against the first respondent as also explained above. 47. Finally Cox v Ministry of Justice [2016] UKSC 10 concerned whether to impose vicarious liability for the acts of a prisoner in prison in the context of a claim for personal injuries by an employee injured by that prisoner. Vicarious liability confers liability on one party for the acts or omissions of another. What the claimant argues here is the liability of the sixth respondent for his own acts or omissions, and no issue of vicarious liability conferred on him (as opposed to conferred on the first respondent by the acts or omissions of its employees for example) arises. 48. The claimant argued that he would be denied justice if he could not pursue his claim against the sixth respondent. That is an argument that is relevant to the second stage of the test, and whether it is proportionate to strike out a claim having regard to the overriding objective. I consider that it is proportionate to strike out these claims, and I reject the claimant’s contention in this regard. Firstly, as already stated, the claimant is not being denied any ability to pursue remedy in regard to his whistle-blowing claim, he has that remedy potentially against the first respondent. Secondly, the Tribunal will consider the facts that it hears evidence on, and is in a position to make findings in fact which may or may not relate to the sixth respondent depending both on what evidence is presented to it, and how it assesses that evidence. Thirdly the claimant is not entitled as a matter of law to pursue claims against an individual in all circumstances, or as he wishes, and he is not being denied justice as he claims, in my judgment. The statutory provisions are the framework that Parliament has chosen to impose, and the effect is to restrict the claims made, in these circumstances, in a way that excludes someone in the position of the sixth respondent. Finally, the claim as to whistle-blowing is but one of the claims made by the claimant, and the remaining claims include those of discrimination. Whilst it is not impossible that the principal reason for dismissal was because the claimant made, as he alleges, a protected disclosure, and that the dismissal was because of race, whether as direct discrimination, indirect discrimination, harassment or victimisation, to a significant extent at least (which is less of a requirement than that of being the principal reason), the inter-relation of such different claims is not straightforward. If the claimant’s discrimination claims are made out, it is possible but far from clear that the whistle-blowing claim would also succeed. 49. In all the circumstances I consider that it is appropriate, proportionate and in accordance with the overriding objective in Rule 2 to strike out the claims under sections 47B and 103A of the Employment Rights Act 1996. That has assumed that they were competently before the Tribunal. 50. There are other claims that the claimant may seek to make to which he has referred in documentation, and the position in those respects is not addressed specifically in this Judgment as it was not raised by the respondent in the application made (Mr McFadzean explaining that he sought strike out of those claims he considered were before the Tribunal, or could be, and there may be others as referred to above). For the avoidance of doubt, therefore, the sixth respondent may if so advised apply to strike out claims made under the Equality Act 2010 on other grounds as the case management of the claims proceeds, as precisely what is claimed and why is yet to be clarified at a case management Preliminary Hearing, or any claims sought to be made against him under the Employment Rights Act 1996 under other provisions of that Act, as at this stage it is not yet settled precisely which claims are made, on what basis, and with what specification, and whether they require an application to amend. If so, that application if opposed will require to be assessed separately. Conclusion 51. The claim against the sixth respondent is struck out in so far as it is alleged to arise from the claimant having made one or more protected disclosures under sections 47B or 103A of the Employment Rights Act 1996. 52. The claim as directed to the sixth respondent under the Equality Act 2010 is not struck out. 53. A further Preliminary Hearing shall be arranged to address outstanding applications and for case management. Notice of the same shall be issued to the parties separately.
Introduction
[1]This Preliminary Hearing was arranged to consider an application by the claimant to substitute the executors of the fifth respondent for him in light of the fact that he has sadly died during the conduct of this litigation. That is opposed by the respondents. Related issues arise including as to amendment.[2]I issued a Note with provisional views as to the former matter on 16 November 2022, and gave parties a further opportunity to make submissions. This Judgment should be read together with that Note. This Judgment is longer than might normally be expected given the lengthy history of the case, the number and variety of the issues that have been raised, and the detail placed before me by the claimant in particular. There have been a series of claims made by the claimant, which have been combined in earlier case management orders.[3]The respondent set out its position in an email on 28 November 2022, with attachments that included an amended paper apart for the Response Form. The claimant sent emails on 1 and 2 December 2022, which included a list of events and documentation in support.[4]The parties have made further submissions today, which are referred to in outline in the commentary and analysis below. During the latter stage of the hearing the claimant asked to be allowed to send an email he had received dated 27 May 2021 from a solicitor acting for the first respondent, which I agreed that he could do. He sent that email, but also many others, which he had not asked permission to do at the time of the submissions. I did however read all of them, and took them into account.[5]I repeat below the points on the law that I made earlier, and have added further aspects to it from those that have been raised. Whilst that involves a measure of duplication from the last Note it is I consider appropriate to do so particularly where the claimant is a party litigant.[6]It appeared to me to be appropriate to consider firstly whether amendment of claims was required for the claimant to pursue the arguments that he wishes to make in relation to the fifth respondent in particular, but also other respondents, identify the claims pursued against the fifth respondent thereafter, and then consider whether or not to sist his executors in stead of the fifth respondent. I outlined for the benefit of the claimant the tests that are applied to the issue of whether to allow an amendment being the nature of the amendment, the application of time-limits, the timing and manner of the amendment, and any other relevant circumstances.[7]At a relatively early stage in the discussion Mr McFadzean gave notice to the claimant that he reserved the right to make an application for expenses on the basis that the arguments being made by the claimant had already been determined against him, and that the application for amendment was unreasonable and vexatious. The claimant denied that in a brief response.
Background
[8]I did not hear evidence, and make no findings in fact. There are however a number of background circumstances that are relevant to the issues before me. The ones that appear to me to be most relevant, and therefore not set out fully comprehensively, as follows.[9]The claimant was formerly employed by the first respondent, a trust.[10]On 10 and 11 August 2019 the fifth respondent sent the claimant emails with regard to a grievance he had raised, in the latter of which he asked whether the claimant would consider withdrawing it if the second respondent made a sincere and compete apology. The claimant replied to that in detail, both referring to breach of the Equality Act 2010 and drafting a document containing an apology.[11]The claimant initially commenced a series of 10 Claims against a series of respondents. It included the first respondent, the ABC Trust. The Trustees at that time were the second, fifth and seventh respondents (the seventh respondent being later added as a respondent to these proceedings as referred to below). The Claim pursued against the fifth respondent as an individual, in which he was named specifically as a respondent, was under number 4114337/2019. In very summary terms it referred to the said exchange of emails between the claimant and the fifth respondent. The claimant argues, in brief summary, that the messages sent by the fifth respondent were unlawful discrimination on grounds of race by the first respondent for which the fifth respondent has personal liability. Whist not referred to specifically it is understood that the claimant founds on sections 110, 111 and 112. The claimant accepted in discussion at the hearing that that was the pled claim against the fifth respondent (subject to a later claim which he sought to pursue, which was dismissed as outwith jurisdiction, with an amendment refused in all but one aspect, addressed below).[12]On 9 March 2020 the claimant requested of the first respondent access to documents in relation to himself, as a subject access request. On 6 and 12 May 2020 the claimant was provided by the seventh respondent with some of the data, some of which was redacted to remove personal data of others. That did not include the notes that the fifth respondent had made with regard to the claimant’s contract.[13]On 6 and 11 May 2020 the seventh respondent emailed the claimant in relation to documentation he had sought by a subject access request. That included that the fifth respondent had specifically refused consent to release any document containing his personal data.[14]The claimant’s employment with the first respondent terminated on 7 May 2020.[15]On 12 May 2020 some documentation was provided to the claimant by the seventh respondent which was heavily redacted to remove personal data.[16]The claimant made applications to amend the claims, which were determined at a Preliminary Hearing on 21 July 2020. A Judgment was issued dated 28 July 2020 allowing the amendment in part, and refusing it in part.[17]On 12 April 2021 the fifth respondent died. On that being intimated to the Tribunal the claim as directed to the fifth respondent was sisted, for a period. There was correspondence with the parties in relation to the same, and hearings postponed, pending appointment of Executors.[18]On 27 May 2021 Miller Samuel Hill Brown, solicitors for the first respondent, wrote to the claimant alleging in effect that the said notes were legally privileged and were not disclosable to him accordingly.[19]The said notes were provided to the claimant on 23 August 2021, as further response to the subject access request. It was not stated at that stage who had authored them. The claimant thought that it was the seventh respondent. He did not ask the respondents to clarify that matter, nor did he seek an order for information from the respondents under Rule 31 then or later.[20]On 30 August 2021 the claimant presented a claim against the first respondent (the second respondent in that claim) and seventh respondent (the first respondent in that claim) under number 4111168/2021. A Preliminary Hearing was held in relation to it before me on 29 October 2021 at which, inter alia, further particulars of the claims made were ordered.[21]On 1 September 2022 EJ Eccles in a Note and Orders held that the said notes were not legally privileged.[22]The claimant submitted further and better particulars of the claims referred to in paragraph 20 on 1 December 2021. He made a number of proposed complaints in doing so. Complaint 2 referred to the said notes, with his understanding being that the seventh respondent had been the author of them, and referring to what he considered to be a conspiracy between the three trustees. That complaint was directed to a number of respondents, one of which was the fifth respondent. Another complaint was complaint 10 which related to alleged detriments of delay in receiving documents sought by the subject access request. He also sought to add a claim for having suffered detriments and dismissal for making protected disclosures.[23]On 21 January 2022 a hearing was held before EJ Eccles at which, inter alia, she considered the said particulars. She decided by Judgment dated 12 February 2022 that there was no jurisdiction to consider the complaints included within the particulars, save for complaint 10. Leave to amend the claim to add a claim of victimisation under section 27 of the Equality Act 2010 was given in respect of complaint 10 only, covering the period 9 March 2020 to 23 August 2021, but otherwise the application to include the complaints within the particulars was refused.[24]On 7 June 2022 the respondent’s solicitors emailed the claimant to confirm that the fifth respondent was the author of the said notes.[25]On 12 July 2022 Executors Nominate were appointed to the fifth respondent’s estate by Grant of Confirmation.[26]A Preliminary Hearing was held on 4 August 2022 to address a dispute about documents which the respondents objected to the admissibility of.[27]By email dated 11 or 27 August 2022 (both dates were given in submission) the respondent’s solicitors again wrote to the claimant and informed him that the said notes had been authored by the fifth respondent.[28]On 1 September 2022 a Note with orders was issued following the hearing on 4 August 2022, sent to parties on 27 September 2022. It decided that there was no legal privilege attaching to the said notes, but did attach to other documents.[29]On 16 November 2022 a Preliminary Hearing was heard before me, after which a Note was issued.[30]On 28 November 2022 the respondent wrote with submissions on the position.[31]On 1 December 2022 the claimant sent an email with details of the claims he sought to make against the fifth respondent. He did not specifically state that that was an application to amend the claims. He provided further details and documents by email on 2 December 2022. In the email of 1 December 2022 the claimant made four proposed claims – 1. “Racial harassment”, in respect that the fifth respondent was allegedly asked to retract his complaint, when other complaints and a grievance were not similarly treated. He refers to victimisation, but does not name the fifth respondent in the list of those he accuses. He refers to the notes when disputing the arguments of the respondent that the emails were not discriminatory as alleged. 2. “Aiding unlawful discrimination”, which refers to the said notes, and alleges victimisation under the 2010 and 1996 Acts. There is an allegation of collaboration between trustees. 3. “Inducing and causing a detriment & aiding unlawful discrimination”, referring to the fifth respondent sending his notes to the seventh respondent. Seeking dismissal or placing him on short time working is alleged to be victimisation by, inter alia, the fifth respondent. 4. “Aiding unlawful discrimination – actively involved in delaying access of my personal data from 9.3.20 – 23.8.21” in respect of which it is alleged that the said notes are evidence that the fifth respondent was actively involved in delaying access to personal data, alleged to be victimisation and collusion to cover up contraventions of the 2010 Act. Law Amendment
Law
[32]A Tribunal is required when addressing such applications as for amendment to have regard to the overriding objective, which is found in the Rules at Schedule 1 to the Employment Tribunals (Constitution & Rules of Procedure) Regulations 2013 which states as follows: “2 Overriding objective The overriding objective of these Rules is to enable Employment Tribunals to deal with cases fairly and justly. Dealing with a case fairly and justly includes, so far as practicable—(a) ensuring that the parties are on an equal footing;(b) dealing with cases in ways which are proportionate to the complexity and importance of the issues;(c) avoiding unnecessary formality and seeking flexibility in the proceedings;(d) avoiding delay, so far as compatible with proper consideration of the issues; and(e) saving expense. A Tribunal shall seek to give effect to the overriding objective in interpreting, or exercising any power given to it by, these Rules. The parties and their representatives shall assist the Tribunal to further the overriding objective and in particular shall co-operate generally with each other and with the Tribunal.”[33]The question of whether or not to allow amendment is a matter for the exercise of discretion by the Tribunal. There is no Rule specifically to address that, save in respect of additional respondents in Rule 34. Whether or not particulars amount to an amendment requiring permission from the Tribunal to be received falls within the Tribunal’s general power to make case management orders set out in Rule 29 which commences as follows: “29 Case management orders The Tribunal may at any stage of the proceedings, on its own initiative or on application to make a case management order….” co-operate generally with each other and with the Tribunal.”[34]Earlier iterations of the Tribunal Rules of Procedure did contain a specific rule on amendment, and the changes brought into effect by the current Rules, found in Schedule 1 to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013, require to be borne in mind when addressing earlier case law.[35]The nature of the exercise of discretion in amendment applications was discussed in the case of Selkent Bus Company v Moore [1996] ICR 836, which was approved by the Court of Appeal in Ali v Office for National Statistics [2005] IRLR 201. In that case the application to amend involved adding a new cause of action not pled in the original claim form. The claim originally was for unfair dismissal, that sought to be added by amendment was for trade union activities. The Tribunal granted the application but it was refused on appeal to the EAT. The EAT stated the following: “Whenever the discretion to grant an amendment is invoked, the tribunal should take into account all the circumstances and should balance the injustice and hardship of allowing the amendment against the injustice and hardship of refusing it. What are the relevant circumstances? It is impossible and undesirable to attempt to list them exhaustively, but the following are certainly relevant;(a) The nature of the amendment Applications to amend are of many different kinds, ranging, on the one hand, from the correction of clerical and typing errors, the additions of factual details to existing allegations and the addition or substitution of other labels for facts already pleaded to, on the other hand, the making of entirely new factual allegations which change the basis of the existing claim. The tribunal have to decide whether the amendment sought is one of the minor matters or is a substantial alteration pleading a new cause of action.(b) The applicability of time limits If a new complaint or cause of action is proposed to be added by way of amendment, it is essential for the tribunal to consider whether that complaint is out of time and, if so, whether the time limit should be extended under the applicable statutory provisions, e.g., in the case of unfair dismissal, s.67 of the 1978 Act.(c) The timing and manner of the application An application should not be refused solely because there has been a delay in making it. There are no time limits laid down in the Rules for the making of amendments. The amendments may be made at any time – before, at, even after the hearing of the case. Delay in making the application is, however, a discretionary factor. It is relevant to consider why the application was not made earlier and why it is now being made: for example, the discovery of new facts or new information appearing from documents disclosed on discovery. Whenever taking any factors into account, the paramount considerations are the relative injustice and hardship involved in refusing or granting an amendment. Questions of delay, as a result of adjournments, and additional costs, particularly if they are unlikely to be recovered by the successful party, are relevant in reaching a decision.”[36]In Harvey on Industrial Relations and Employment Law Division PI, paragraph 311, it is noted that distinctions may be drawn between firstly cases in which the amendment application provides further detail of fact in respect of a case already pleaded, secondly those cases where the facts essentially remain as pleaded but the remedy or legal provision relied upon is sought to be changed, often called a change of label, and thirdly those cases where there are both new issues of fact and of legal provision on which the remedy is sought, of which Selkent is an example.[37]The first two categories are noted as being those where amendment may more readily be allowed (although that depends on all the circumstances and there may be occasions where to allow amendment would not be appropriate). The third category was noted to be more difficult for the applicant to succeed with, as the amendment seeks to introduce a new claim which, if it had been taken by a separate Claim Form, would or might have been outwith the jurisdiction of the Tribunal as out of time.[38]In Abercrombie v Aga Rangemaster Ltd [2014] ICR 204 the Court of Appeal said this in relation to an amendment which arguably raises a new cause of action and therefore in the third category, suggesting that the Tribunal should '' … focus not on questions of formal classification but on the extent to which the new pleading is likely to involve substantially different areas of inquiry than the old: the greater the difference between the factual and legal issues raised by the new claim and by the old, the less likely it is that it will be permitted.''[39]In order to determine whether the amendment amounts to a wholly new claim and in the third of the categories set out above it is necessary to examine the case as set out in the original Claim to see if it provides a 'causative link' with the proposed amendment (Housing Corporation v Bryant [1999] ICR 123). In that case the claimant made no reference in her original unfair dismissal claim to alleged victimisation, which was a claim she subsequently sought to make by way of amendment. The Court of Appeal rejected the amendment on the basis that the case as pleaded revealed no grounds for a claim of victimisation and it was not just and equitable to extend the time limit. It said that the proposed amendment “was not a rectification or expansion of the original claim, but an entirely new claim brought well out of time”.[40]The Court of Appeal has commented that the extent of any new factual enquiry following an amendment application is one of the factors to take into account, in Evershed v New Star Asset Management Holdings Ltd [2010] EWCA Civ 870. If the new claim is sufficiently similar to that originally pled, that supports the granting of the amendment where the “thrust of the complaints in both is essentially the same”.[41]The onus is on the claimant to persuade the tribunal that it is just and equitable to extend time where a discrimination claim is otherwise outwith the jurisdiction, and the exercise of discretion is the exception rather than the rule (Robertson v Bexley Community Centre [2003] IRLR 434), confirmed in Department of Constitutional Affairs v Jones [2008] IRLR 128.[42]No single factor, such as the reason for delay, is determinative when considering whether or not to allow an amendment and a Tribunal should still go on to consider any other potentially relevant factors beyond those identified in Selkent, such as the balance of convenience and the chance of success: Rathakrishnan v Pizza Express (Restaurants) Ltd [2016] IRLR 278, and Gillett v Bridge 86 Ltd UKEAT/0051/17.[43]Whether to allow amendment is accordingly a multi-factorial approach considering all material circumstances.. Whether the claim within the amendment is in time or not is a factor, but an amendment application made in time may not be allowed in some circumstances – Patka v BBC UKEAT/0190/17. In Vaughan v Modality Partnership [2021] IRLR 97 the EAT summarised matters and held that there was a balance of justice and hardship to be struck between the parties. Time limits[44]Section 123 of the Equality Act 2010 provides as follows in regard to time limits for discrimination claims such as those under sections 13, 19, 26 or 27 of that Act “123 Time limits(1) Subject to [sections 140A and section 140B proceedings on a complaint within section 120 may not be brought after the end of— (a) the period of 3 months starting with the date of the act to which the complaint relates, or (b) such other period as the employment tribunal thinks just and equitable.(2) Proceedings may not be brought in reliance on section 121(1) after the end of— (a) the period of 6 months starting with the date of the act to which the proceedings relate, or (b) such other period as the employment tribunal thinks just and equitable.(3) For the purposes of this section— (a) conduct extending over a period is to be treated as done at the end of the period; (b) failure to do something is to be treated as occurring when the person in question decided on it.(4) In the absence of evidence to the contrary, a person (P) is to be taken to decide on failure to do something— (a) when P does an act inconsistent with doing it, or (b) if P does no inconsistent act, on the expiry of the period in which P might reasonably have been expected to do it.”[45]This provides in summary that the Tribunal has jurisdiction under the 2010 Act if a claim is commenced (firstly by early conciliation and then by presenting a claim form timeously thereafter) within three months of the act complained of, that being normally referred to as the primary period, but there are two qualifications to that, firstly where there are acts extending over a period when the time limit is calculated from the end of that period, and secondly where it is just and equitable to allow the claim to proceed.[46]In Chief Constable of Lincolnshire Police v Caston [2009] EWCA Civ 1298, [2010] IRLR 327, the Court of Appeal stated the following “There is no principle of law which dictates how generously or sparingly the ‘power to enlarge time is to be exercised' (para 31). Whether a claimant succeeds in persuading a tribunal to grant an extension in any particular case 'is not a question of either policy or law; it is a question of fact and judgment, to be answered case by case by the tribunal of first instance which is empowered to answer it’.”[47]In Abertawe Bro Morgannwg University Local Health Board v Morgan UKEAT/0305/13 the EAT stated that a claimant seeking to rely on the extension required to give an answer to two questions: ''The first question in deciding whether to extend time is why it is that the primary time limit has not been met; and insofar as it is distinct the second is [the] reason why after the expiry of the primary time limit the claim was not brought sooner than it was.''[48]What is just and equitable involves a broad enquiry having regard in particular to the relative hardships parties may suffer.[49]The test in relation to a claim as to protected disclosures is within the Employment Rights Act 1996. Issues in respect of dismissal are addressed in section 111, and for detriment in section 48. In each case the test is that of reasonable practicability in the first instance, and if met that the claim has been presented within a reasonable period of time thereafter. Sist of another party[50]Rule 34 allows the Tribunal, on application or its own initiative, to “add any person as a party, by way of substitution or otherwise, if it appears that there are issues between that person and any of the existing parties falling within the jurisdiction of the Tribunal which it is in the interests of justice to have determined in the proceedings……”[51]In the present context, the fifth respondent was a Trustee of the first respondent. Section 206(1) of the Employment Rights Act 1996 provides that where an employer has died Tribunal proceedings under provisions that are listed may be defended by personal representatives of the deceased employer. The list of proceedings includes unfair dismissal. There are provisions for the enforcement of awards where an employer has died, found in the Employment Tribunal Awards (Enforcement in Case of Death) Regulations 1976. There are no equivalent or other provisions in the Equality Act 2010 in relation to the death of a party.[52]In Executors of Soutar v James Murray and Co (Cupar) Ltd and another [2002] IRLR 22 the EAT held that under the common law of Scotland the executors of a deceased’s estate could pursue claims under the Disability Discrimination Act 1995, and for breach of contract, in the Tribunal. The Trust is a private trust under the common law, and as regulated by statute. Trustees have fiduciary duties under the terms of the Trust deed and statute. The position where one of the trustees ceases to be so was set out in Gloag and Henderson on the Law of Scotland paragraph 41.03 as follows “if one trustee ceases to hold office the remaining trustees become the new joint owners.” The same point is made in the Stair Memorial Encyclopaedia on Trusts at paragraph 161 “Where one of several trustees, acting under a testamentary or inter vivos trust, dies, the trust estate automatically vests in the surviving trustee or trustees; the title of the deceased trustee to the trust estate becomes extinct and is in effect absorbed by the title to the trust estate subsisting in the remaining trustees.” Analysis (i) Amendment
Analysis
[53]This aspect raises two questions, firstly are the claims that the claimant has identified in his email of 1 December 2022 already pled by him, and if not (ii) should an application for amendment to do so be allowed or not? There are some allegations found in relation to the fifth respondent in the claim form numbered 4114337/2019. They are related to emails regarding a grievance. The present issues focus on notes that the fifth respondent wrote about the claimant’s contract of employment, and comments on them which include a commentary as to alleged gross misconduct by the claimant. The claimant accepts that claims 2 – 4 of his email of 1 December 2022 are new matters, but argues that that in claim 1 is within that earlier claim, to summarise his position. It appears to me that there is little new in that claim other than the reference to the notes. They may be evidence for the claim already made, which includes a claim of direct discrimination, but may also be a fact on which direct discrimination, harassment or victimisation is said to have occurred. The notes have been held as admissible, and are potential evidence in the said 2019 claim accordingly. But in so far as there is an allegation that there was direct discrimination, harassment or victimisation arising out of those notes themselves that is a different factual matter, and if to be pursued I consider requires amendment. Claims 2 - 4 are new matters, and require amendment as is accepted.[54]I therefore turn to the issue of whether or not the amendment should be allowed. I consider firstly the Selkent factors, and then other issues. Nature of amendment[55]I consider that arguments in relation to the said notes are different factual matters to those pled in the 2019 Claim Form referred to. There is some relationship between the two, but they are different. The emails are communications with the claimant. The notes however were made by the fifth respondent, and are different in context and detail. Although the overarching claims may be the same, such as for direct discrimination, harassment and victimisation, the detail is not. Time Limits[56]It appears to me that the claims sought to be added by amendment are out of time. The claimant in his email of 1 December 2022 stated that the respondent informed him that the fifth respondent was the author of the emails on 7 June 2022, as well as on 11 August 2022. On the basis of the claimant’s own submission therefore, he knew of the authorship on 7 June 2022. He was aware of the notes however in August 2021, a year earlier. If he wished to pursue a claim in relation to them specifically, and to direct that to a party other than the first respondent, it was incumbent on him to make reasonable enquiry at that stage, or to seek an order for information under Rule 31. He did not do either. The claimant sought to argue that there were acts extending over a period which was to 27 September 2022, being when the decision on the admissibility of the notes was sent to him. That argument is I consider misconceived. Issues of admissibility were separate to the claims being made. What matters in my view is when the claimant knew, or ought if taking reasonable care and acting with reasonable diligence to have known, of facts on which a claim against the fifth respondent could be made on the basis he now pursues.[57]In all the circumstances the claims are out of time, unless it can be said that it is just and equitable to allow them to proceed. I do not consider that it can be. There is I consider no adequate reason given for the long delay. That is not conclusive, and in my judgment such delay alone does not lead to refusal of amendment, but it is a factor against what is just and equitable. Separately and importantly there is obvious and material prejudice to the fifth respondent, or his executors, given his decease. He is not now able to give evidence about the notes or other matters. Investigating that matter by his executors would inevitably be extremely difficult, if not almost impossible. There would likely be a material level of expense for them in doing so. For reasons I address further below in the context of the issue of a sist of the executors, the prejudice to the claimant is limited, and not likely to be financial in nature. It is not I consider just and equitable to extend time as sought by the claimant. In my judgment the claims are outwith the time-limits, and although that is not a conclusive factor it is one to weigh in the balance when considering the amendment application. Timing and manner of application[58]The first issue in this regard is when the application for amendment was made. The claimant says it was on 1 December 2022, and that although not stated to be an application to amend it should be inferred from its terms. The respondent argues that the application was only made on the day of the hearing. In my judgment it is appropriate to consider the email of 1 December 2022 as if an application to amend. That is firstly as that possibility was canvassed by me specifically in the Note from the Preliminary Hearing on 16 November 2022, and secondly as the contents are such that it may reasonably be inferred that claims not hitherto made, or allowed to proceed, are being sought.[59]The amendment application is however made late in the proceedings. The original claims date from 2019. Whilst there has been delay for a number of reasons, including an appeal by the claimant, but also the death of the fifth respondent and other matters, which include the respondents not initially providing the said notes, the delay is material on the part of the claimant. At the latest he knew of the authorship of the notes, on his own submission, on 7 June 2022. That being the date of knowledge, then at the very latest the application to amend should have been made within three months of that date, i.e. by 6 September 2022. But that is the latest date, and in my judgement the date by which a claim ought reasonably to have been made was much earlier. The claimant received the notes in August 2021, and sought to amend in December 2021, with that issue determined in February 2022. He ought in my view to have addressed issues when making that amendment, and indeed he did so in part as is referred to below.[60]I take into account the claimant’s arguments including the position of the first respondent arguing that the notes were subject to legal privilege, that other documents were provided but with personal data redacted, and that the case was sisted after the death of the fifth respondent was intimated to the Tribunal. Those are not I consider good grounds for the delay. A sist can be recalled at any time, and that can include when an application to amend is to be made. Executors were appointed in July 2022. That is a public act. In all the circumstances I consider that the present application has been made substantially late without good reason for the delay that I have referred to.[61]I also consider that the claimant is seeking effectively to re-litigate at least to a large degree a point that has already been decided against him. EJ Eccles determined his application in relation to his complaint 2 by her decision only to allow one complaint, being complaint 10, and not the others. In complaint 2 the fifth respondent was named as a proposed respondent. Whilst the factual matters alleged in complaint 2 are not identical to those in the application dated 1 December 2022, they are very similar, and the differences between them are not I consider significant. The claimant had not at the time of the December 2021 Further and Better Particulars of the true authorship of the notes, but he alleged involvement in the decisions in relation to matters arising from them that included the fifth respondent.[62]These are I consider important matters that weigh heavily against allowing the amendment. Other factors[63]The claimant has already had two hearings at which he attempted to amend his claims, in both of which he has had partial success and partial failure. He has pursued the claims in a manner that has not meant identifying the claims made easy, as there were 10 Claim Forms initially, and there was a later one involving the now seventh respondent. The claimant’s pleadings, and the emails submitted in support of his application to amend, are not as clear or succinct as one would wish, and the documentation before me included detail that was not always relevant solely to the position of the fifth respondent. The clamant is a party litigant, and proper account must be taken of that, although the claimant has clearly attempted to carry out a substantial amount of preparation, including research into matters.[64]The claimant has existing claims against other parties, in particular the first respondent. He may, subject to any contrary decision of the full Tribunal at the Final Hearing, seek to refer to the said notes and matters surrounding them at that hearing both in his evidence, and in cross examination of witnesses. The application to amend is to be seen in the context of the claimant making many allegations against several respondents which are able to proceed to the Final Hearing.[65]The notes as a document are evidence. What to make of them is a matter requiring further evidence. They do not contain in my judgment comments that are on the face of them discriminatory on grounds of race, that is something that may or may not be inferred from all of the evidence. In Amnesty International v Ahmed [2009] IRLR 884 the EAT recognised two different approaches from two House of Lords authorities -(i) in James v Eastleigh Borough Council [1990] IRLR 288 and(ii) in Nagaragan v London Regional Transport [1999] IRLR 572. In some cases, such as James, the grounds or reason for the treatment complained of is inherent in the act itself. In other cases, such as Nagaragan, the act complained of is not discriminatory but is rendered so by discriminatory motivation, being the mental processes (whether conscious or unconscious) which led the alleged discriminator to act in the way that he or she did. The intention is irrelevant once unlawful discrimination is made out. That approach was endorsed in R (on the application of E) v Governing Body of the Jewish Free School and another [2009] UKSC 15.[66]It appears to me that issues around the notes are in the Nagaragan category. There is an issue as to why the notes were prepared in the manner and with the terms that they were, but also what happened after they were prepared, and who did what, why.[67]The claimant is able to argue the points he wishes to in relation to the notes and the issues flowing from them at the Final Hearing. The respondents are able to argue their position in response. That is liable to include the evidence of the second and seventh respondents as the remaining Trustees of the first respondent, amongst the evidence. As the notes were not disclosed to the claimant at the time there is no detriment during employment from the notes themselves, any detriment, or any argument over the reason for dismissal, is an evidential issue of which the notes themselves are a part.
Conclusion
[68]It is significant both that the claims are out of time, and that they are so by a substantial period. There has been a substantial amount of delay in the claimant presenting the application in my view. It is also in my view particularly significant that EJ Eccles refused to allow a very similar amendment relating to the fifth respondent. I consider that it is not in the overriding objective to allow the amendment. Taking all of the circumstances into account, I consider that the application to amend should be refused. (ii) Sist[69]The basic facts relevant to the issue in dispute are not themselves disputed. The parties agree that the claimant was employed by the first respondent. The fifth respondent was a trustee of the first respondent. He is now deceased. Executors have been appointed to his estate, and a Certificate of Confirmation has been granted.[70]Section 206 of the 1996 Act on which the claimant sought to found is irrelevant as the fifth respondent was not the employer of the claimant. Section 206 is also not relevant as the claim against the fifth respondent is not one under the 1996 Act but the 2010 Act. The Law Reform (Miscellaneous Provisions) Act 1934 on which the claimant also founded is not relevant as it does not apply to Scotland (as discussed in Soutar). Harris v Lewisham And Guy's Mental Health Trust [2000] EWCA Civ 87 on which the claimant founds is not relevant firstly as it is a case based on principles of English law, and the 1934 Act in particular, which are not applicable in Scotland, and secondly as it concerns the pursuit of a claim, not the defence to a claim as in this case. It does not appear to me to follow from the fact that in both Scotland and England a claimant’s claim can be commenced or continued after his or her death means that a claim against a party who has deceased after it was commenced should lead to sisting of Executors in his place, as is contended for here.[71]It is competent to add Executors to that claim having regard to the terms of Rule 34. The claimant referred to Chapter 25 of the Sheriff Court Rules which entitle the sisting of a new party in place of one who is deceased. That provision does not assist, in my judgement. Those are different Rules, although the import is much the same as Rule 34. Rule 34, construed in accordance with Rule 2, is what I require to apply.[72]The nature of the claim that remains against the fifth respondent is in reference to the emails as to whether he would consider withdrawing a grievance as referred to, and the award for injury to feelings for those emails in isolation is liable to be relatively limited. The claim is also directed against the first respondent both for that, and more generally. It is said by the first respondent that the first respondent has sufficient funds to pay any award for all the claims made, although that at present is an assertion as no evidence or undertaking has been provided.[73]The claimant argues that to deny him a remedy against the fifth respondent would be unjust, and that having a fair hearing is possible. The 2010 Act does have provisions as to personal liability, in sections 110 – 112 in particular. The fifth respondent is not however able to defend those allegations by giving evidence himself.[74]The claimant referred to an English Employment Tribunal decision being the case of Amponsah v Estate of Dr O’Connor 2203032/2019. I found a reported Judgment in relation to an application for strike out, which was refused. It appears that there was an earlier decision to the effect that the claim could continue against the estate of the deceased Dr O’Connor. In that case there were two respondents. The circumstances of that case appear to me entirely different to those of the present case, and of no assistance to me in the issues I required to determine. In any event, a decision of another Employment Judge is not binding on me.[75]It appears to me to be the case that the claimant does not have a right to have the Executors of the fifth respondent added, or sisted, to the proceedings in his place under Rule 34. That Rule makes clear, in my view, that there is a discretion to be exercised.[76]In exercising that discretion there are a number of matters to take into account. One is that, if any award for acts or omissions of the fifth respondent, it would also be made against the first respondent, and would in any event be (they undertake) paid by them. Another is the likely amount of such an award if made against the fifth respondent. That is not straightforward to identify at this stage, prior to evidence, but it is in my view likely to be within the lower band of the Vento bands. For the avoidance of doubt, the level of award if made against the fifth respondent is a different matter on which I express no view.[77]It seems very unlikely to me that the fifth respondent’s executors could themselves give evidence on the merits of any materiality, as it is not suggested that they were present or involved with it. Much of the evidence will be around the meaning to be attributed to documents written by the fifth respondent. Those documents will be before the Tribunal. The claimant can give his evidence on that, as can other witnesses, but the fifth respondent is not available to do so, or be cross examined or questioned by other parties or the Tribunal itself.[78]The effect of granting the application is likely to make winding up the estate of the deceased not possible pending resolution of the claims made. There would be an addition to expense by the sisting of the Executors.[79]The respondents argue that the claim made against the fifth respondent was one which had no reasonable prospects of success, that being the one of the tests for a strike out under Rule 37. The emails that are relied on by the claimant are now available to me, as are other documents including notes the fifth respondent made in relation to the claimant’s contract and issues related to that. The claimant contends that the documents support his arguments, the respondents contend that they do not. It is of course both extremely difficult, and carries obvious dangers, of seeking to decide such a matter without hearing evidence. It does seem to me a difficult argument that the emails from the fifth respondent asking if the claimant would consider retracting his resignation should a complete and sincere apology be issued to him by the second respondent, but they are not the only evidence. The notes that were made on the contract appear on the face of them to consider issues in relation to the prospective dismissal of the claimant. That may have some evidential value, depending on all the evidence heard which will include the extent to which there was, or was not, sufficient reason to believe that the claimant had committed an act or acts of gross misconduct. The claimant also alleges other conduct on the part of or in relation to the fifth respondent, including not disclosing those notes when a subject access request was made. I do not consider that I can say that there are no reasonable prospects of success for the claims directed to the fifth respondent. The test for that in a discrimination claim is a high one with a public interest in having such claims determined after evidence. There is an issue to determine.[80]Against that background there are some factors that point in favour of the arguments for the claimant and some in favour of those for the respondents. I have come to the conclusion that the balance strongly favours the latter, and that the application to sist executors should be refused. That is for the following reasons –(i) To refuse the application would not involve material prejudice to the claimant. He is able to pursue his arguments on what the fifth respondent did or did not do, and if they prevail will succeed against the first respondent as the Trustee body of which the fifth respondent had been a member, but of which he ceased to be a member on death. The prejudice to the claimant is essentially in not having a remedy directly against the fifth respondent, should his claim succeed.(ii) The award, if made purely against the fifth respondent for what he himself is said to have done, or omitted to do, is most likely to be one at a moderate level. The indication is very strongly that the award, if made, would be paid in full by the first respondent. The actual prejudice to the claimant is not at all likely to be financial.(iii) There are many claims made which are pursued against a series of respondents, and those claims continue.(iv) To grant the application would involve substantial prejudice to the fifth respondent’s estate, as it would most likely involve significant expense, time, and lead to delay in the winding up of that estate. Whilst it is most unlikely to lead to delay in concluding the present claim at the Final Hearing that has been fixed for 12 – 20 June 2023 the executors would require to be served with the necessary documentation, which is voluminous, and would have an opportunity to defend the claim, and make whatever applications they considered appropriate. That would, if that happened, at least add to expense, and to Tribunal time and resources. That is, in isolation, contrary to the overriding objective.(v) The fifth respondent is now not able to give evidence, and seek to explain his actions or omissions. As an individual, he is not therefore in a position properly to defend the allegations against him. I am concerned that, solely so far as claim against the fifth respondent is concerned, it may not be possible to have a fair hearing. The fifth respondent is not able to explain the said notes, for example.[81]It does not appear to me to be in the interests of justice, or within the overriding objective, given all of the circumstances, to grant the application for a sist. Consideration of strike out of claim against fifth respondent[82]I consider that it may be appropriate formally to strike out the Claim so far as directed against the fifth respondent under the terms of Rule 37, as it may be no longer possible to have a fair hearing of the claims made against him as an individual following his death, and having regard to the decision I have made not to sist executors. For the avoidance of doubt I consider that it remains possible to have a fair hearing of the claims against other respondents, including those relating to the emails sent by the fifth respondent referred to, and the said notes, as evidence on behalf of the first respondent, and from the second and seventh respondents in particular, can be given on the events that followed receipt of those notes, discussed above, as well as other evidence. I shall defer making any decision in that regard to allow the parties time to make any submissions on that for a period of 14 days from the date this Judgment is sent to them, under the terms of Rule 37(2).[83]Although there is no application for strike out of that claim as a result of my decision there is no representative party as Executors formally acting for the interests of the fifth respondent, and I may do so on my own initiative under that Rule. That shall be considered after receipt of any representations.