Ms M Barcker v Moorfields Eye Hospital NHS Foundation Trust: 6003571/2024 and 6007989/2024
EMPLOYMENT TRIBUNALS
Case No 6003571/2024, 6007989/2024
Between
Ms M BarckerClaimantMoorfields Eye Hospital NHS Foundation Trust RECORD OF A PRELIMINARY HEARINGRespondent
Before
Employment Judge JoffeRepresented herself for claimantMs J Franklin (instructed by counsel) for respondentDate 12 September 2025
REASONS
[1]These are the reserved reasons for the decisions I made at the case management hearing: - To allow some amendments to the claim and refuse others; - To strike out some claims and refuse strike out of others.[2]In the interests of allowing time in the listing to make necessary case management orders, I reserved these reasons. The applications[3]The respondent applied to strike out the claimant’s claims: - As an abuse of process / under the rule in Henderson v Henderson; - As having no reasonable prospects of success in respect of time limits; - As having no reasonable prospects of success in respect of the substantive merits of the claims.[4]The claimant applied to amend her claim. She had made an application dated 19 November 2024.[5]I was provided with a bundle running to 343 pages, a draft list of issues, an opening note from the respondent and a number of additional documents sent through by the claimant.[6]The relevant chronology is as follows: On 13 May 2019, the claimant commenced employment with the respondent as an apprentice A and E coordinator. On 7 February 2020, the claimant commenced long term sick leave. She did not return to work with the respondent. On 17 April 2022, the claimant submitted her first claim form. She raised complaints related to the fact that she was required to use contractual sick pay whilst shielding. She alleged age and disability discrimination and unlawful deductions from wages. On 5 July 2022, there was a preliminary hearing in the first claim. The claimant said at the hearing that she felt harassed and ridiculed due to her dyslexia. She was told to write to the Tribunal if she wished to amend her claim to bring in those issues. On 29 July 2022, the claimant requested to amend the first claim to add ‘bullying and harassment’ and ‘fraud, exploitation and slavery’. On 9 September 2022, there were directions from Employment Judge Gordon Walker as to what the claimant needed to include if she wanted to bring a claim of harassment. By 22 September 2022, she was required to set out details of her claim. The claimant did not make any such application within the timescale set out by Judge Gordon Walker. A full merits hearing for the first claim was listed for 9 – 12 May 2023. It was ineffective essentially due to technical issues the claimant had. The claimant’s application to add a claim of harassment related to disability was refused by Employment Judge Singh. That decision was sent to the parties on 23 June 2023. On 6 July 2023, the claimant wrote to the Tribunal making an application to amend her claims to add the following claims (as clarified): Failure to make reasonable adjustments (section 20 EqA): The Respondent applied a provision, criterion or practice (PCP) which required her to attend work despite advice to shield as a result of the pandemic. The Claimant alleges that her adjustment should have been, that she be allowed to work from home; b) Discrimination arising from disability (section 15 EqA): Firstly, the Claimant states that her absence from work arose from her disability and that she was treated less favourably by being put through absence management procedures. Secondly, the Claimant states that her absence from work was due to shielding but she was forced to go on sick leave and provide sick notes even though she was willing and able to work from home; c) Indirect disability discrimination (section 19 EqA): Whilst unclear it was understood the Claimant was relying on the PCP that it was the requirement to go off sick despite her being able to work from home; d) Direct Age and Sex discrimination (section 13 EqA): Respondent discriminated against her as two males in their 20s and 30s respectively were treated differently as they were both classed as extremely vulnerable and allowed to work from home; and e) Unlawful Deduction from Wages: Claimant states that she should have been paid 100% of her wages rather than 70%. The Claimant also states that she has not been paid her sick pay, holiday pay and denied promotion amongst other things.[7]On 12 February 2024, the claimant also applied to add a claim of unfair dismissal following her dismissal by the respondent on 29 January 2024 and on 13 February 2024 claims of harassment and victimisation.[8]The claimant’s claims came before Employment Judge Akhtar sitting with lay members between 12 and 16 February 2024. All of the then extant amendment applications were refused by the Akhtar Tribunal.[9]On 20 February 2024, the claimant notified Acas in respect of what would become her second claim and on 2 April 2024 she received the Acas certificate in that claim.[10]On 26 April 2024, there was a hearing of the claimant’s appeal against dismissal. On 23 May 2024, the appeal against dismissal was not upheld.[11]On 9 June 2024, the claimant presented her second claim form and also notified Acas again.[12]On 9 July 2024, the reserved judgment in claim 1 was sent to the parties. All of the claims were dismissed. With respect to the unfair dismissal amendment application, the Akhtar Tribunal said: Re UD amendment: 6. With regard to the unfair dismissal claim, we accept that the claimant would not have been able to raise this before 29 January 2024, which is the date of her dismissal, however, she could have presented an urgent application to amend upon receipt of the dismissal notice, which was sent to her on 30 January 2024. We note that the claimant submitted an appeal in response to her dismissal yet failed to notify the respondent and the Tribunal that she intended to pursue an unfair dismissal claim.[13]Also on 9 July 2024, the claimant received a further Early Conciliation certificate.[14]On 8 August 2024, the claimant presented her third claim form.[15]On 8 October 2024, there was a case management preliminary hearing in front of Employment Judge Lewis at which the present hearing was listed. The claimant was ordered to provide a written draft of her proposed amendments by 19 November 2024.[16]On 19 November 2024, the claimant submitted her application to amend to add claims of unfair dismissal and age, race and disability discrimination.[17]The application said: When the Claimant issued proceedings, she was a litigant in person. She did not have the benefit of legal advice and did not know the exact nature of her claims. She has now received one-off advice from Equality and Employment Law Centre. As such, Further and Better Particulars of Claim were submitted to the Employment Tribunal and Respondent on 19 November 2024 as per the Judge’s Order at the Preliminary Hearing. The Claimant wishes for these to act as amendments to her original claim.[18]Ultimately the ambit of the application was as follows: 6. The application to amend is effectively clarifying upon the claims pleaded in the original ET1. The Respondent is aware of the Claimant bringing claims for Unfair Dismissal as she brought this to the Respondent and Tribunal’s attention during the Final Hearing of her First Claim and the Claimant ticked the box pertaining to ‘Unfair Dismissal’ in her ET1 Claim Form submitted on 9 June 2024. As such, the basis for the Unfair Dismissal claim is not new information to the Respondent. If the Tribunal considers that the application is altering or adding new facts, it is submitted that this would not change the claims in any manner and would not mean the Respondent is prejudiced by the amendment. Withdrawala. Direct age and sex discriminationb. Race discriminationc. Whistleblowingd. Harassment and victimisatione. Indirect discriminationf. Unauthorised deductions from wages Remaining claims a. Unfair dismissal b. Failure to make reasonable adjustments c. Discrimination arising from disability[19]It was relevant to look at what was in the claim form in Case Number 6003571/2024 in respect of the reasonable adjustments and section 15 complaints (spelling, punctuation and formatting as per original): Failure to make reasonable adjustments (s20 Equality Act 2010 "EqA")Moorfields Eye hospital had a provision , criterion or practice (PCP) that placed me at a substantial disadvantage they should have made a reasonable adjustment. In this instance Moorfields PCP required staff to attend work in person despite their being a pandemic and that as I was classified by my doctors and the government as being extremely vulnerable due to my diagnosis of non Hodgkin's lymphoma a reasonable adjustment would have been to allow me to work from home or been furloughed instead of forcing me to provide sick leave. Once Freedom day finally came and shielding finally came to an end due to medical issues arising from the continual stress I- endured at the hands of my manager and Moorfields eye hospital the continual stress, the harassment, bullying and victimisation I expressed again that I needed to work from home. Again, Moorfields eye hospital failed in its duty of care towards me. Had Moorfields supported me my work absences would not have so much. As I I was self isolating on instructions from the government as soon I heard that theirs was going to be a national lockdown I volunteered to work from home this is even noted in email been HR and my Manager Ms Dugdill. In my first OH interview I say I want to work and the OH report dated April 2020 recommended that I be allowed to work from home. … 2) Discrimination arising from disability (sl6EqA) Moorfields eye Hospital and my manager Ms Dugdill treated me unfavourably because of something arising in consequence of my disabilities. b) Moorfields and my manager Ms Dugdill discriminated against me because they would allow me to work from home when I was advice to shield. I was I informed by the government not to go into work as I was classed as extremely vulnerable i required to to shied due to a consequence of my disability Discrimination arising from disability (sl6EqA) Moorfields has continually discriminated against me as I have been treated unfavourably because of consequences arising and connected to my disabilities. In my case Moorfields put me through a performance/ attendance/ sick leave absence procedure. Moorfields use the Bradford score, which should have taken into account my disabilities, that is shielding, the impact of stress effecting my non Hodgkin's Lymphoma this coupled with my dyslexia. But Moorfields choose to continue on the Brad ford Score which resulted in my dismissal from their employment. B) Additionally Moorfields discriminated against me because they did not allow me to work from home when I informed them that I had first been told to self isolate and then shield by the government due to my disability. My manager advised that I could not work from home and that I must either come into work onsite or be signed of sick. I was signed of sick despite being able to work from ( the stress my manager placed on me during this time nearly killed me). My manager and Moorfields discriminated against me because of this, I was not able to work in person due to my requirement to shield as a consequence of my disability. Moorfields will not be able to show that it was a proportionate means of achieving a legitimate aim by paying me sick pay rather than allowing me to work from home when I was capable of doing so. Again, after the end of shielding I requested to work from home due the consequences of stress on my disabilities, again Moorfields refused to allow me home work. I was therefore and continued to be treated unfavourably in that I didn't not receive full pay but sick pay rather than allowing to work from home when I was capable of doing so during shielding and after the end of the pandemic in order to reduce stress on my disability. Submissions Respondent Abuse of process[20]The respondent said that all of the claims were an abuse of process as they could or should have been brought in claim 1 and were not (the rule in Henderson v Henderson). That included claims relating to the claimant’s dismissal, which had occurred prior to the full merits hearing in claim 1. It would have been appropriate for all of the claims to be heard together. There was obvious factual overlap and some issues such as knowledge of disability would have to be determined again.[21]The respondent also submitted that the claims in claims 2 and 3 were very similar to the amendment application rejected by Employment Judge Akhtar and the attempt to circumvent Employment Judge Akhtar’s decision was itself an abuse of process. Time limits[22]The respondent submitted that the EC certificates for claims 2 and 3 related to the same ‘matter’ as claim 1. EC certificates can cover events which postdate the certificate and a second or subsequent EC certificate has no impact on the limitation period. Accordingly all of the claims were out of time and the claimant had not brought evidence to show it was not reasonably practicable to bring the claims in time or that it was just and equitable to extend time. The claims in claim 3 were even further out of time. No reasonable prospects[23]The unfair dismissal claim had no reasonable prospects of success. The claimant had not explained why she said the dismissal was substantively or procedurally unfair. She had been signed off sick for a very long period, and had numerous occupational health assessments. The respondent had explored the possibility of remote working. Amendments[24]The unfair dismissal claim was not obvious from the claim forms; the amendment application introduced new facts and a new cause of action which was presented out of time. The claimant could not show it was not reasonably practicable for her to present this claim in time and the application should have been made sooner, The respondent would be put to additional expense investigating and responding to this claim.[25]The reasonable adjustments amendment introduced a new cause of action based on a new PCP. This claim was out of time and should have been brought earlier. There would be further expense for the respondent.[26]The section 15 claim sought to rely on new disabilities and new facts giving rise to a new claim. This claim was out of time and should have been brought earlier. There would be further expense for the respondent. Claimant[27]Initially the claimant said that she wanted to keep in claims of harassment and victimisation amounting to a hostile work environment. In discussion about what she had agreed with her adviser she was content not to pursue those matters as she understood that she could not keep litigating the same matters.[28]She said that the matters in claims 2 and 3 were different from the matters which were in claim 1, which as Judge Akhtar had said, were about pay.[29]As to what legal advice she had been able to source, she said that she had relied on free legal advice. This had been difficult to obtain during the pandemic. She had had advice about the amendment application she made on 6 July 2022 from an East London law centre.[30]She had not had further advice when she put in claim 2 although she said that she had been told that she needed to submit the claim by 9 June 2024. She sought further advice from the West London equality centre and that seems to have been the trigger for her putting in the third claim. Additionally she said that she had not wanted to go the Tribunal and had tried to resolve matters through internal complaints.[31]As to the merits, the claimant said that she had tried to stay in employment. Other colleagues had been found work to do at home and she considered that there was work she could have done at home. She had been asking to work from home throughout the process. She mentioned data processing and telephone work as work which she could have done from home.[32]The claimant asked me to read a number of documents which she had included in the bundle and I read those. These included the respondent’s sickness absence policy, some communications with the respondent about the claimant shielding and about her absences, some OH documents and reports and some documents relating to the formal sickness absence process the claimant went through. Law The rule in Henderson v Henderson
Law
[33]Guidance as to the ambit of this form of estoppel or abuse of process was given by Lord Bingham in Johnson v Gore Wood & Co [2002] 2 AC 1: ‘Henderson v Henderson abuse of process, as now understood, although separate and distinct from cause of action estoppel and issue estoppel, has much in common with them. The underlying public interest is the same: that there should be finality in litigation and that a party should not be twice vexed in the same matter. This public interest is reinforced by the current emphasis on efficiency and economy in the conduct of litigation, in the interests of the parties and the public as a whole. The bringing of a claim or the raising of a defence in later proceedings may, without more, amount to abuse if the court is satisfied (the onus being on the party alleging abuse) that the claim or defence should have been raised in the earlier proceedings if it was to be raised at all. I would not accept that it is necessary, before abuse may be found, to identify any additional element such as a collateral attack on a previous decision or some dishonesty, but where those elements are present the later proceedings will be much more obviously abusive, and there will rarely be a finding of abuse unless the later proceeding involves what the court regards as unjust harassment of a party. It is, however, wrong to hold that because a matter could have been raised in earlier proceedings it should have been, so as to render the raising of it in later proceedings necessarily abusive. That is to adopt too dogmatic an approach to what should in my opinion be a broad, merits-based judgment which takes account of the public and private interests involved and also takes account of all the facts of the case, focusing attention on the crucial question whether, in all the circumstances, a party is misusing or abusing the process of the court by seeking to raise before it the issue which could have been raised before. As one cannot comprehensively list all possible forms of abuse, so one cannot formulate any hard and fast rule to determine whether, on given facts, abuse is to be found or not. Thus while I would accept that lack of funds would not ordinarily excuse a failure to raise in earlier proceedings an issue which could and should have been raised then, I would not regard it as necessarily irrelevant, particularly if it appears that the lack of funds has been caused by the party against whom it is sought to claim. While the result may often be the same, it is in my view preferable to ask whether in all the circumstances a party’s conduct is an abuse than to ask whether the conduct is an abuse and then, if it is, to ask whether the abuse is excused or justified by special circumstances’. Effect of a second EC certificate[34]In Science Warehouse Ltd v Mills [2016] ICR 252, The EAT said that where claims are allowed by way of amendment, there is no need for the claimant to go through the EC procedure in respect of the new claim: 29. Does this approach undermine the objective of the early conciliation procedure, as Mr Rees suggests? Would it permit (using his example) an accrual of new claims simply by way of amendment of existing proceedings and thus avoiding early conciliation? Mr Rees's fears in this regard fail to take account of the fact that such amendments would only be permissible if allowed by the tribunal properly exercising its judicial discretion. An employment tribunal is not bound to permit such an application. The fact that it concerns a matter that is entirely new, having arisen only after the ET1 was lodged, may well be a relevant factor weighing against allowing an amendment. If such an application to amend were not permitted, it may be that the claimant becomes a prospective claimant in respect of that matter, and there may then be an obligation to invoke the early conciliation procedure unless one of the section 18A(7) exceptions apply. If the amendment is permitted, however, I cannot see that the early conciliation process arises. It is simply a matter of case management.[35]In Compass Group UK & Ireland Ltd v Morgan [2017] ICR 73, the EAT held that an EC certificate is not necessarily limited to events which pre-date it: We, like the appeal tribunal in Science Warehouse Ltd v Mills [2016] ICR 252 and Drake International Systems Ltd v Blue Arrow Ltd [2016] ICR 445 , consider it significant that Parliament used the word “matter” in section 18A(1) rather than “cause of action” or “claim” and that the prescribed information required to be provided by a prospective claimant to Acas to fulfil the obligations under the scheme is so very limited. The word “matter” is broad and, as Langstaff J observed, may encompass not just the precise facts of a claim that bring it within a cause of action but also other events at different times and/or dates and/or involving different people. There is no obligation, as we have already indicated, when notifying Acas to identify the matter itself nor the nature of any actual or prospective dispute, still less to provide the factual details or any background to that dispute. The only information required to be provided by a prospective claimant consists of names and addresses of the prospective parties.19. It is also significant, in our judgment, that the process of conciliation is an entirely voluntary and confidential one. Once the prospective claimant has provided Acas with the prescribed information, there is no requirement whatever for him or her to identify to Acas, or indeed the prospective respondent, the subject matter or issues in dispute and no obligation whatever to enter into any discussions, still less meaningful ones, with the prospective respondent. Although it is hoped that this will follow, there is no obligation to do so. The prescribed information need not even be complete and correct. What the process does (as Judge Eady QC explained) is to build in a structured opportunity for parties to take advantage of Acas conciliation if they choose to do so before a matter reaches litigation.20. Against that background, the question of construction raised by Mr Milsom is whether there is any temporal or other limit on the applicability of an early conciliation certificate in the context of “relevant proceedings relating to any matter” that are commenced in relation to a cause of action that only crystallises after the early conciliation process is complete. The question, accordingly, is: what is meant by “relating to any matter”? In our judgment, these are ordinary English words that have their ordinary meaning. Parliament has deliberately used flexible language capable of a broad meaning both by reference to the necessary link between the proceedings and the matter and by reference to the word “matter” itself. We do not consider it useful to provide synonyms for the words used by Parliament. Provided that there are or were matters between the parties whose names and addresses were notified in the prescribed manner and they are related to the proceedings instituted, that is sufficient to fulfil the requirements of section 18A(1) .21. Section 18A could have been enacted so as to require the matters complained of in subsequent proceedings to pre-date any relevant early conciliation certificate, but Parliament chose not to do so. Equally, Parliament could have provided for a time limit on the validity of an early conciliation certificate but did not do that either. Nor does the legislation provide that a certificate cannot pre-date causes of action complained about subsequently as, again, Parliament could have done. Indeed, there is nothing express in the legislation that provides any temporal or other limitation on the use of an early conciliation certificate in relation to relevant proceedings, causes of actions or claims. Rather, the legislation is, as we have said, deliberately defined by reference to a broader term than “cause of action” or “claim”. We see nothing in the operation of the legislation that requires or entails a conclusion that the process and certificate only apply to events and allegations pre-dating the commencement of the process or the issue of the certificate or that requires any matter to be defined by reference only to the actual or alleged state of affairs or facts as at the date when early conciliation commenced or the certificate is issued. We do not regard the fact that claimants might bring claims about which early conciliation has not been conducted as significant in circumstances where there is no obligation to undertake any early conciliation at all and certainly no obligation to undertake it in relation to any particular claim. The only obligation on the prospective claimant is to obtain formal recognition that Acas has been relevantly notified before any proceedings are instituted, and the fact that the prospective respondent has no right to engage in pre-claim conciliation at all and any contact with the prospective respondent is entirely conditional upon the claimant's consent is consistent with this view.22. The employers' shifting case, which now accepts that if a matter is in contemplation but has not occurred prior to the issue of the certificate it can be encompassed within the certificate provided it does not result in dismissal, has no underlying logic to it, in our judgment, and does not obviously emerge from the legislation itself. We do not consider that there is a difference in kind between a cause of action involving dismissal and other causes of action that do not result in dismissal and agree with Mr Moore that this is a red herring. In practice, it is easy to imagine a situation in which an individual contacts Acas complaining about a poor relationship that is deteriorating or developing in a particular and unacceptable way. The individual might have in his or her contemplation a belief that he is about to be dismissed, or that possibility might not yet have registered. Circumstances might exist where an individual's relationship with his or her employer is breaking down but has not reached the point at which he or she feels bound to resign. We cannot see why it makes all the difference in such a situation that the relationship has come to an end. In either case (whether a case involving continuing employment or one involving a resignation) the underlying deteriorating employment relationship based on bullying, discrimination, victimisation or whatever other cause can constitute matters between the parties whose names have been notified to Acas, and the fact of employment subsequently terminating is simply an additional factual matter that either is or is not related to those earlier matters.23. Moreover, the fact that there is an ongoing power in the early conciliation officer to endeavour to promote the reinstatement or re-engagement of a complainant by the employer in section 18C(2) means that no safe conclusion that there is a temporal limit on early conciliation certificates can be drawn based on the mere existence of that power in section 18A(9) . Ultimately, we can see no reason artificially to restrict the scope of the phrase “relating to any matter”. That does not mean that a certificate affords a prospective claimant a free pass to bring proceedings about any unrelated matter; it does not. In our judgment, it will be a question of fact and degree in every case where there is a challenge (and we hope and anticipate that there will be very few such challenges) to be determined by the good common sense of tribunals whether proceedings instituted by an individual are proceedings relating to any matter in respect of which the individual has provided the requisite information to Acas. In circumstances where the only requirement is to make contact with Acas but do nothing more and the information required to be provided is limited as it is, we do not consider that this construction defeats the object of the early conciliation process at all. 25. Moreover, we envisage that the fact of certification will in most cases be sufficient to demonstrate compliance with section 18A(1) . In most cases, the parties will know what facts or matters were in issue between them. Respondents will need some good and compelling basis for challenging fulfilment with the section 18A(1) requirement. Where such a challenge is made, it will be for a tribunal to determine these questions of fact and degree. That these are questions of fact and degree makes it less likely, in our collective view based on past experience, that satellite litigation of this kind will arise than would be the case were a bright line construction, such as that proposed by Mr Milsom, to be adopted. Striking out[36]Under rule 37 of the Employment Tribunals Rules of Procedure 2013, a claim or response may be struck out on various grounds including that it is scandalous and vexatious or has no reasonable prospects of success: rule 37(1)(a).[37]In heavily fact-sensitive cases, such as those involving whistleblowing or discrimination, the circumstances in which strike out is appropriate are likely to be rare: Abertawe Bro Morgannwg University Health Board v Ferguson 2013 ICR 1108, EAT.[38]The test is not whether the claim is likely to fail. It is not a test that can be satisfied by considering what is put forward by the respondent either in the ET3 or in submissions and deciding whether their written or oral assertions regarding disputed matters are likely to be established as facts. It is a high test: Balls v Downham Market High School and College 2011 IRLR 217, EAT.[39]It is crucial when considering strike out to take the claimant’s case at its highest; where there are core issues of fact which turn to any extent on oral evidence, these should not be decided without an oral hearing: Mechkarov v Citibank NA [2016] ICR 1121.[40]The following helpful summary was given by Linden J in Twist DX Limited v Armes UKEAT/0030/20/JOJ(V):[43]The relevant principles relating to the application of this provision for present purposes can be summarised as follows:a. A decision to strike out is a draconian measure, given that it deprives a party of the opportunity to have their claim or defence heard. It should, therefore, only be exercised in rare circumstances: see, for example, Tayside Public Transport Company Limited v Reilly [2012] IRLR 755 at paragraph 30.b. The power to strike out on the no reasonable prospect ground is designed to weed out claims and defences, or parts thereof, which are bound to fail. The issue, therefore, is whether the claim or contention “has a realistic as opposed to a fanciful prospect of success”: see, for example, paragraph 26 of the Judgment of the Court of Appeal in the Ezsias case (supra).c. The court or tribunal should not conduct a mini-trial of the facts and therefore would only exceptionally strike out where the claim or contention has a legal basis, if the central or material facts are in dispute and oral evidence is therefore required in order to resolve the disputed facts. There may, however, be cases in which factual allegations are demonstrably false in the light of incontrovertible evidence, and particularly documentary evidence, in which case the court or tribunal may be able to come to a clear view: see, for example, paragraph 29 of Ezsias.d. Subject to this point, the court or tribunal must take the case of the respondent to the application to strike out at its highest in terms of its factual basis and ask whether, even on that basis, it cannot succeed in law.e. The court or tribunal generally should not seek to resolve novel issues of law which may not arise on the facts, particularly in the context of a developing area of the law: see, for example, Campbell v Frisbee [2003] ICR 141 CA.f. The fact that a given ground for striking out is established gives the ET a discretion to do so – it means that it “may” do so. The concern of the ET in exercising this discretion is to do justice between parties in accordance with the overriding objective and an ET, therefore, would not normally strike out a claim or response which has a reasonable prospect of success simply on the basis of the quality of the pleading. It would normally consider the pleading and any written evidence or oral explanation provided by a party with a view to determining whether an amendment would clarify or correct the pleaded case and render it realistic and, if so, whether an amendment should be allowed. In my view, this last point is important in the context of litigation in the employment tribunals, where the approach to pleading is generally less strict than in the courts and where the parties are often not legally represented. Indeed, even in the courts, where a pleaded contention is found to be defective, consideration should be given to whether the defect might be corrected by amendment and, if so, the claim or defence should not be struck out without first giving the party which is responding to the application to strike out an opportunity to apply to amend: see Soo Kim v Yong [2011] EWHC 1781.g. Obviously, particular caution should be exercised where a party is not legally represented and/or is not fully proficient in written English (see the discussion in Hassan v Tesco Stores Limited UKEAT/0098/16 and Mbuisa v Cygnet Healthcare Limited UKEAT/0109/18), but these principles are applicable where, as here, the parties are legally represented, albeit less latitude may be given by the court or tribunal. Amendment 41. In considering an application to amend a claim, a Tribunal will have particular regard to the balance of hardship and injustice in refusing or allowing the amendment, together with any relevant factors. Those include the factors set out in Selkent Bus Co Ltd v Moore ICR 836, EAT: The nature of the amendment: The Tribunal has to decide whether the amendment sought is one of the minor matters or a substantial alteration pleading a new cause of action. Applicability of time limits: If a new claim or cause of action is proposed to be added by way of amendment, it is essential for the tribunal to consider whether that claim/cause of action is out of time and, if so, whether the time limit should be extended. Timing and manner of the application: Delay in making the application is 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 identification of new facts or new information from documents disclosed on discovery. 42. The merits may be relevant to an amendment application; if a proposed claim is obviously hopeless, that consideration affects the assessment of the injustice caused to a claimant by not being able to pursue it. Nothing is lost in not being able to pursue a claim which cannot succeed: Herry v Dudley MBC and anor EAT 0170/17. 43. Time limits are simply a factor in the exercise of the discretion although they may be an important and potentially decisive one. The fact a time limit has expired will not prevent the tribunal exercising its discretion in favour of allowing an amendment, although it will be an important factor in the scales against allowing the amendment: Transport and General Workers’ Union v Safeway Stores Ltd EAT 0092/07.[44]The core test in considering applications to amend is the balance of injustice and hardship in allowing or refusing the application. The parties must therefore make submissions on the specific practical consequences of allowing or refusing the amendment. If the application to amend is refused, how severe will the consequences be, in terms of the prospects of success of the claim or defence? If permitted, what will be the practical problems in responding? Where the prejudice of allowing an amendment is additional expense, consideration should be given as to whether the prejudice can be ameliorated by an award of costs, provided that the other party can meet it: Vaughan v Modality Partnership [2021] ICR 535, EAT Conclusions Amendment
Conclusions
[45]In considering the amendment application, I considered it was appropriate to have close regard to what was already in the claim forms. Claim 3 added nothing new to what was in claim 2 and so I focused on claim 2.[46]I concluded that there was a claim for unfair dismissal in claim 2 already. The claimant had ticked the box for unfair dismissal in the form itself. In the attachment, albeit under headings relating to disability discrimination, she had raised concerns about the application of the sickness absence procedure. The amendment ultimately put forward simply sets out the standard considerations for a Tribunal in a case of dismissal because of long term ill health absence: The Respondent will not be able to show that there was adequate evidence of incapability at the time of the decision to dismiss, that they adopted a fair procedure prior to the decision to dismiss, and that they considered suitable alternatives to dismissal[47]If this is properly to be regarded as an amendment at all, it is one which should not take the respondent by surprise or cause any prejudice since it simply sets out explicitly the questions which would have been implicit in the claimant’s claim for unfair dismissal arising out of her dismissal due to long term sickness absence.[48]I find that there is no need for an amendment at all but, if I am wrong about that, the balance of hardship and injustice is firmly in favour of allowing the amendment. There is no real prejudice to the respondent in a change to an existing cause of action which simply clarifies the claim and in any event overlaps with the factual compass of the other causes of action pleaded. The claimant on the other hand, were the amendment not allowed, would be allowed to pursue a curiously hobbled claim for unfair dismissal denuded of any real issues for the Tribunal to decide.[49]The reasonable adjustments claims sought to be added concern a PCP about the application of the sickness absence procedure: 28.The Claimant submits that the following PCPs have been applied:(i) Applying the Sickness Absence Management Policy to the Claimant 31.The Respondent’s PCPs outlined at (i) put the Claimant, as a disabled person, at a substantial disadvantage in comparison with persons who are not disabled in that the Claimant’s non-Hodgkin’s Lymphoma; hypertension; alopecia; thyroid condition and dyslexia means that she requires acknowledgement of disabilities and for the respondent to act in accordance with their own policy that where someone has a disability or disabilities everything is done to ensure that person is able to work continually. My employers should have supported me in being able to continue work, instead of trying to apply the sickness absence policy 32.Ultimately, the application of this PCP by the Respondent has exacerbated the symptoms of the Claimant’s disabilities and resulted in the Claimant’s dismissal. She is currently unfit to work due to her underlying health conditions, mainly non-Hodgkin’s Lymphoma and her stress-related conditions. This has also in turn affected her professional development. 33.The Claimant suggests that the following adjustments should have been made: (i) Allowing the Claimant to work from home(ii) Offering the Claimant to work in a different role and/or in a different department within the Respondent(iii) Allowing the Claimant to work in a different team to her manager, Ms Juliet Dugdill, in order to reduce her stress The Claimant avers that the above adjustments would have reduced her stress-related disabilities.[50]The claim form had said the following about reasonable adjustments: that the respondent “required staff to attend work in person despite their (sic) being a pandemic”. The claimant suggested that a reasonable adjustment would have been to allow her to work from home or be furloughed. She said: “It would have not been unreasonable for Moorfields to have created a home work role for me after COVID 19” and that “a creation of a remote role could have been a reasonable adjustment”.[51]The claim form appears to be gesturing towards a PCP of requiring staff to work at the respondent’s premises. The proposed amendment says that the PCP is the application of the respondent’s sickness absence attendance policy. However the amendment does not specify what aspect of the policy was applied and put the claimant at a disadvantage. The amendment sought is not in a form which the respondent could sensibly respond to. In circumstances where the claimant has not put this claim in a form which it could sensibly be tried despite extensive case management, I concluded the balance of hardship and injustice was against allowing the amendment. It is not right that the respondent should be expected to respond to the amendment in this form nor would it be appropriate for the respondent to be subject to the further expense and inconvenience of further case management. The claimant has claims with a very similar factual ambit which she is still able to pursue in the form of her claims for unfair dismissal and section 15 discrimination.[52]So far as the section 15 claim is concerned, the claim form already says this: 8) Discrimination arising from disability (s16EqA) Moorfields has continually discriminated against me as I have been treated unfavourably because of consequences arising and connected to my disabilities. In my case Moorfields put me through a performance / attendance / sick leave absence procedure. Moorfields use the Bradford score, which should have taken into account my disabilities, that is shielding, the impact of stress effecting my non Hodgkin's Lymphoma this coupled with my dyslexia. But Moorfields choose to continue on the Bradford Score which resulted in my dismissal from their employment.[53]The amendment is put in this way: Section 15 The unfavourable treatment is namely, failure to make reasonable adjustments for the Claimant and dismissing the Claimant on the grounds of medical capability. The ‘something arising in consequence of the Claimant’s disability’ includes her absences arising from her hypertension which was caused by the dysfunctional and stressful situation between the Claimant and the Respondent at work, and the Claimant’s body’s reaction to stress which results in extreme fatigue, hypertension and alopecia. Is therefore something arising from my disability and my dismissal. The dismissal was due to my absences which were due to the dysfunctional situation, therefore my dismissal was discrimination arising from my disability/ disabilities. The Claimant avers that the Respondent cannot show that the treatment she received in a failure to make reasonable adjustments and dismissal on grounds of medical capability was a proportionate means of achieving a legitimate aim. A more proportionate means of achieving a legitimate aim in this respect would have been to support the Claimant by, for example, not inviting the Claimant to meetings after she had made the Respondent aware that meetings exacerbate her disabilities. Supporting the Claimant in continual employment[54]The claim has very much the same factual compass as the unfair dismissal claim and is arguably just a clarification of what was in the claim form. The dismissal was because of absences which it is said were caused by disabilities. The section 15 claim gives rise to different questions but those questions emerge from very much the same factual background. The claim is capable of being understood and responded to.[55]I bear in mind that the claimant is a litigant in person who has dyslexia. She clarified her claims when she obtained free legal assistance.[56]I considered that the balance of hardship and injustice was in favour of allowing this amendment. I also considered that it was in favour of allowing the amendment to rely on further impairments as disabilities, those being hypertension, stress, alopecia and a thyroid condition. The claimant has complex impairments and says that her absences are connected with these various impairments. The proceedings are at a relatively early stage, before disclosure of medical records, so there should not be additional cost or prejudice to the respondent, in adding these impairments. Strike out: abuse of process[57]I considered carefully whether it was an abuse of process for the claimant to pursue claims related to her dismissal. The dismissal occurred shortly before the full merits hearing and Employment Judge Akhtar refused an amendment to add claims relating to it.[58]Looking at the matter in the round, it did not seem to me to be an abuse of process for the claimant to have put in a new claim about her dismissal. Had the claimant applied urgently for an amendment after she was dismissed, one of two things would have happened: either the amendment would have been refused (as it was when she applied later) or the full merits hearing would have had to have been postponed. The dismissal postdated the original claims and raised distinct and different issues. It did not seem to me that a litigant in person was properly to be criticised for not making a very prompt application to amend to add the dismissal and it is by no means obvious that it would have been in the parties’ interests for there to be further delay in determining the claims in claim 1. It was unsurprising Employment Judge Akhtar did not allow an amendment, which would have derailed the full merits hearing. However, that decision has to be looked at in the context it was made; it does not cast any light on the issue of whether putting in a fresh claim in respect of the dismissal was an abuse of process.[59]In respect of matters which do not bear on the dismissal, it seemed to me that the claimant should have brought those much sooner. Insofar as there was a complaint of failure to make reasonable adjustments relating to a PCP of being required to work at the respondent’s premises, I concluded that that was a claim which could and should have been pursued either by way of claim 1 or an amendment to claim 1, relating as it did to a period beginning as early as 2020. Most of the rest of claims 2 and 3 had been withdrawn by the claimant. Any matters in claims 1 and 2 not contained in the list of issues are struck out. Strike out: time[60]If the Acas certificate issued on 2 April 2024 was effective to increase the time limit, the respondent accepts that the second claim was submitted in time.[61]Looking at the authorities, the question for me was whether the dismissal constituted a new ‘matter’. Claim 1 was brought on 17 April 2022, nearly two years before the claimant’s dismissal. It was essentially a complaint about sick pay, at least in its inception. These are very different circumstances from those in the authorities where, for example, the matters of complaint in the claim form are the same matters which lead to an actual or constructive dismissal. I concluded that claim 2 was brought in respect of a different ‘matter’ than claim 1 and hence the second Acas certificate had extended the limitation period. I did not conclude therefore that the claimant had no reasonable prospects of showing she had brought her claims in time. Strike out: merits[62]These claims did not seem to me to be suitable for strike out on the merits. I am obliged to take the claimant’s case at its highest.[63]The respondent relied on the following: C was off sick from 7 February 2020 and was signed off by her GP as not fit for work continuously from 22 April 2021 until 29 December 2023. b. C had 10 Occupational Health assessments between October 2019 and December 2023. c. Remote working was explored by R, and reasons given for why it was not possible.. (The fact that R considered remote working was recorded in the Claim 1 Reasons at para.34 and 37 and para.44]). d. C’s original Stage 3 sickness absence hearing took place on 29 April 2022. That hearing was paused to allow for C’s grievance to be investigated. e. On 1 December 2023, Dr Khan (OH) recommended a phased return which was agreed to commence from 2 January 2024. On 5 January 2024, C submitted a further fit note stating she was not fit for work until 29 February 2024. f. The Stage 3 hearing was rescheduled for 15 January 2024, and then again for 22 January 2024.[64]A central question is whether the claimant could have been redeployed to work which did not required her to attend the office. The claimant says that there was such work and other people were allowed to do it. Her version of events is not disproved by contemporaneous documents. Documents from the relevant time recording an individual’s opinion that there is no such work are by no means proof no such work existed. That is a central dispute of fact which needs to be resolved at trial.
Conclusions
[1]The Claimant’s claim for unfair dismissal is not well founded and is therefore dismissed.[2]The Claimant’s claim for unfavourable treatment because of something arising in consequence of disability (section 15 Equality Act 2010) is not well founded, and is therefore dismissed.