Mrs A Trocan v Amazon UK Services Ltd: 6003335/2024
JUDGMENT
The Claimant’s application to amend her claim is dismissed.REASONS
[1]The Claimant submitted her claim form on 5 June 2024 in which she claimed discrimination on the grounds of race, sex and disability. The Respondent denied the claims.[2]At a preliminary hearing on 25 September 2024 before Employment Judge Brewer, the claims were agreed as direct disability discrimination, direct race discrimination and direct sex discrimination and the issues to be determined at the final hearing were agreed.[3]On 1 November 2024, the Claimant submitted an application to amend her claim because: “(i) I have become aware of more relevant facts (ii) to amend the legal claims without changing the facts (iii) I am making new factual allegations which amount to changing the legal basis on which I am making a claim”. In her written application to amend, under the heading “Reason for delay”, the Claimant said “I am making the application at this stage for the following reason: None”.[4]The application came before me for determination on 6 February 2025. It referenced claims that the Tribunal does not have jurisdiction to consider and the Claimant accepted this. Accordingly, the only amendment being pursued was to include a claim for failure to make reasonable adjustments. Unfortunately, the application made reference to documents, mainly occupational health reports, which were not provided by the Claimant and further information was required principally as to what the provision, criterion or practice (PCP) was which supported the claim. As a result, I adjourned that hearing and re-listed it for today. The Claimant provided further and better particulars and documents on 21 February 2025. On 28 February 2025, the Respondent conceded the Claimant was disabled by reason of anxiety and depression.[5]The Respondent opposes the application. Submissions[6]Both parties made oral submissions and made reference to their written submissions. I do not rehearse them here but took full account of them in reaching my decision.The relevant law
[7]I have considered the following case law in reaching my conclusion: Selkent Bus Company Limited v Moore [1996] ICR 836 and Choudhury v Cerberus Security and Monitoring Services Limited (2002) EAT 172.Conclusions
[8]In determining the application, I have taken into consideration that the Claimant is a litigant in person with no experience of the law.[9]Over the two hearings before me, I have established that the Claimant seeks to amend her claim by adding a claim for failure to make reasonable adjustments as set out in Choudhury. I must then undertake a balancing exercise in respect of the injustice and/or hardship of allowing or refusing the amendment as set out in Selkent.[10]The factors I must consider are:(i) the relevant circumstances at the time of the application to amend;(ii) the balance of injustice and hardship;(iii) the nature of the amendment;(iv) time limits:(v) timing of the request.[11]I find in this case that the application seeks to bring an entirely new claim and is not merely a re-labelling of the original claims. I have considered in some depth the claim form and subsequent documents from the Claimant, none of which, save for the application itself, make any reference to a claim for failure to make reasonable adjustments.[12]I have also considered the explanation from the Claimant as to why she did not bring the reasonable adjustments claim earlier. She addresses this in her application to amend and gives the reason for the delay as “None”. This has the result of rendering this new claim out of time.[13]There is also a fundamental flaw in relation to the new claim in that the Claimant has failed to identify the correct PCP which my earlier order required her to do. She records three PCP’s as being:(i) Failure to modify work patterns or management systems in line with Occupational Health recommendations;(ii) refusal to implement agreed adjustments, particularly task rotation, avoidance of outdoor work and provision of supervision; and(iii) lack of support from management. The issue with these “PCP’s” is that they all relate to the personal issues of the Claimant and are not PCP’s which apply to all employees and are unfavourable to her due to her disability. Consequently, as Mr Sangha succinctly submitted, allowing the amendment would put the Respondent in the position of having to investigate something which could not be investigated.[14]Whilst allowing the amendment would incur further costs for the Respondent, I do not consider denying it would cause undue hardship to the Claimant who can still pursue her other claims.[15]In light of the above, I consider the balance of hardship would fall heavily on the Respondent and the application is dismissed.