Mr J Edwards v Kingston University Service Company Ltd: 6005329/2024 and 6019711/2024
EMPLOYMENT TRIBUNALS
Case No 6005329/2024, 6019711/2024
Between
Mr J EdwardsClaimantKingston University Service Company LtdRespondent
Before
Employment Judge HeathIn person for claimantMr I Wheaton (instructed by Counsel) for respondentDate 9 July 2026
JUDGMENT
[1]The claimant’s claims are not struck out pursuant to Rule 38 Employment Tribunals Rules of Procedure 2024. Approved by: RESERVED JUDGMENT[2]The claimant was not a disabled person for the purposes of the Equality Act 2010 between 24 January 2024 and 10 July 2024.
REASONS
[1]This matter came before me as a public preliminary hearing to deal with a number of points set out in the Issues section below. I have dealt with a strike out application in a separate judgment (I did not strike out the claim). The amendment is a case management issue rather than a judgment, but it is convenient to deal with it in this decision.
Issues
[2]I clarified with the parties at the start of the hearing that the tribunal would be dealing with the issues as outlined in the letter from the tribunal dated 13 May 2026 written on instruction from Employment Judge Ramsden. Namely: 2.1.Whether the claimant was disabled for the purposes of the Equality Act 2010 between 24 January 2024 and 10 July 2024 by virtue of a) tinnitus, and b) anxiety associated with tinnitus. 2.2. The respondent’s application to strike out (I have dealt with this in a different judgment). 2.3. The claimant’s application to amend of 12 November 2025.
Procedure
[3]I was provided with a 507 page bundle, a witness statement from Ms Kapoor of the respondent, respondent counsel’s written outline submissions on disability.[4]I clarified with the claimant, by reference to the Case Management Summary of Employment Judge Tsamados of the hearing on 16 July 2025, that his Disability Impact Statement as ordered in paragraph 11 and 12 of the Case Management Summary appeared in the claimant’s email of 10 September 2025 at pages 144-5 of the bundle.[5]I told the parties that other than pleadings, case management orders etc. I had not pre-read the bundle, and that they were to flag up any pages of the bundle they wanted me to read.[6]I heard oral submissions from the parties first on the strike out issue, then on the disability issues, and then on the amendment. I gave an oral decision with summary reasons on strike out. Time did not allow for an oral decision on disability or amendment, and so I reserved my decisions on these issues. Disability Facts Evidence during employment
Facts
[7]The claimant was employed by the respondent as a security officer. It appears that on 24 January 2024 he was the victim of a “prank” by a work colleague, who stood behind him and shouted through a megaphone. This was the last night of a 4-night shift. He did not attend his next scheduled shift on 29 January 2024, and was off work certified with GP notes until his resignation on 26 August 2024.[8]GP certificates set out various reasons for absence (set out in paragraph 8 of Ms Kappor’s statement) which included work related stress, work related injury, tinnitus, mental health issues, stress/anxiety.[9]The claimant was referred to the respondent’s occupational health (“OH”) provider on 4 occasions, and also provide some other medical evidence: 9.1. On 18 March 2024 (page 278-281) Ms Aldridge, an OH Specialist reported: 9.1.1. The claimant stated he had constant ringing and buzzing in his ears, which he described as intolerable and overwhelming. He reported being anxious after the incident. 9.1.2. The claimant stated that the tinnitus was causing headaches, migraines and insomnia. 9.1.3. The claimant could return to work with adjustments as his symptoms stabilised. 9.1.4. With appropriate treatment his symptoms will stabilise. 9.1.5. Ms Aldridge did not consider the claimant was disabled under the Equality Act 2010 as he had not had symptoms for 12 months, nor was likely to, and he did not require regular treatment to alleviate the risk of further symptoms. 9.2. On 24 April 2024 the claimant provided a letter from the ENT department of Epsom and St Helier University Hospital (page 283). Dr Khan reported that the claimant said he was experiencing tinnitus. The hearing test conducted was “unremarkable” with a slight high frequency hearing loss on the right side. Other tests were normal and unremarkable. 9.3. On 10 May 2024 Ms Welsh, an OH Specialist produced a report. 9.3.1. The claimant told her he continued to endure symptoms of headaches and dizziness. 9.3.2. He had been diagnosed with depression and anxiety and was experiencing lack of motivation and paranoia. 9.3.3. Ongoing barriers to returning to work were his relationship with management and unresolved work related issues. 9.3.4. Ms Welsh set out the types of physiological and psychological issues associated with depression and anxiety. She said that she felt that the claimant’s normal activities of living were “currently compromised but not unachievable by the ongoing physiological and psychological symptoms, that the psychological symptoms Jason is currently enduring are purely as a result of the nature of the allegations which are continuing to have a detrimental effect on his health rather than any underlying illness. Resolution of the perceived work-related stressors will be the key factor in Jason restoring his psychological wellbeing which in my clinical opinion will result with him returning to work”. 9.3.5. Her advice to management included “From my assessment today, I believe that the main barrier to a return to work is the on-going situation at work and that a successful and sustainable return to work will be achieved only through resolution of this situation”. She said a speedy resolution of the workplace issues was essential, and that the claimant was fit to engage with processes. 9.4. On 13 May 2024 the claimant shared a Word document seemingly prepared by him in which he quoted from and commented on a “doctor’s statement”. 9.5. On 10 June 2024 the claimant sent the respondent another letter dated 3 June 2024 from Dr Khan of the ENT team reporting that an MRI scan “which was organised for the tinnitus in the right ear is normal with no concerns therefore I am discharging you from our ENT care”. 9.6. On 18 June 2024 Ms Collins an OH Specialist prepared a report which included: 9.6.1. “Jason confirms his absence is due to his work stressors that remain unresolved. He states that without resolution to these he is unable to consider returning to work”. 9.6.2. “He also reports the effect of incident and his employer’s actions since have damaged his emotional resilience and mental health and confirms he is engaged with GP mental health services”. 9.6.3. Her opinion was “Resolution of the perceived work-related stressors will be the key factor in Jason restoring his psychological wellbeing which in my clinical opinion will result with him returning to work”. 9.6.4. Her advice to management was “Jason is unlikely to return to work until he has resolution to his perceived documents stressors. Resolution to the situation is not through medical intervention but through management action to find a resolution at the earliest time frame. Further referral to occupational health is unlikely to be helpful until the reported stressors are resolved”. 9.7. On 13 August 2024 Ms Aldridge, OH Specialist produced a report which included: 9.7.1. The claimant’s symptoms appear to have improved, but the condition appear to be longer term and he would have to manage his tinnitus symptoms in the longer term. 9.7.2. He appeared anxious about returning to work. 9.7.3. An MRI suggested that there was no “clinical” reason for his symptoms. 9.7.4. He was fit to return to work with adjustments. The adjustments suggested appear to be phased return with short shifts increasing in length in the control room only over a period of 7 weeks. 9.7.5. He was unlikely to be covered under the Equality Act 2010 for the same reasons as before. Further evidence[10]The claimant presented claims on 8 and 10 July 2024 and on 25 November 2024.[11]On 13 May 2024 he also sent to the respondent a pre-action protocol letter from solicitors instructed by his trade union. It intimated a personal injury action. The respondent says that it has sought access to medical evidence in those proposed proceedings but none has been supplied by the claimant.[12]As set out above, the claimant confirmed that his Disability Impact Statement was included in his email of 10 September 2025 at pages 144-5 of the bundle. This sets out: 12.1. Tinnitus and anxiety and depression associated with it started on 24 January 2024, continued until present and are expected to continue. There is no cure for tinnitus. 12.2. The medical treatments were anti-depressants, GP consultations and OH assessments. Other measures taken were rest, avoidance of noise and counselling sessions. Without these his symptoms would worsen and include severe sleep loss, increased anxiety and inability to function at work. 12.3. Under the heading “Effects on Day-to-Day Activities” he said examples include: “• Difficulty concentrating and holding conversations in noisy environments• Sleep disturbance and fatigue• Needing to ask people to repeat themselves• Social withdrawal and distress in group settings• Difficulty following meetings and shift patterns” 12.4. Under the heading “The Claimant’s condition” he adds: “The claimant experiences the following substantial effects:• Sleep disturbance: frequent waking and difficulty sustaining rest• Impaired concentration: difficulty focusing on tasks, particularly in quiet environments or when background noise is present• Communication difficulties: challenges in following conversations, especially in group or workplace settings• Mental health impact: associated anxiety and stress arising from the constant intrusive noise These effects are substantial, not minor or trivial, and materially impair the claimant’s ability to carry out day-to-day activities both at work and in personal life.”[13]On 11 November 2024 the claimant was examined by Mr AJ Parker, a consultant ENT surgeon. He had been instructed by Premex Services Limited, who, I understand, had been instructed by the claimant’s trade union solicitors in proposed personal injury proceedings. Mr Parker produced a report on 11 December 2024.[14]Before I deal with the contents of the report I will deal with some issues which I dealt with in the strike out application.[15]On 15 October 2025 (which was the date on which Employment Judge Tsamados ordered the claimant to produce GP records and any other medical records or other evidence relevant to the issue of disability) the claimant emailed the respondent’s solicitor purporting to attach a “Private Medical Report 15.01.2025” and “Medical Report Wed 15th Oct 2025 Medical Evaluation”. 15.1. One document was headed “Exhibit M1 – Private Medical Report (Mr A J Parker, 15 January 2025”. It was a Word document which stated that “This independent medical report has been prepared by Mr A J Parker following a consultation on 15 January 2025.” It goes on to say that the report confirms that the claimant developed tinnitus as a direct result of a workplace incident, was currently assessed as severe and has persisted over 12 months. It went on to say “Mr Parker’s findings indicate that the tinnitus is chronic, intrusive, and impacts the claimant’s sleep, concentration, and ability to function in a noisy environment.” It goes on to say that the symptoms substantially interfere with normal day to day activities including sustained focus and concentration at work, sleep and rest patterns, social interaction and communication in group or noisy environments. It goes on to outline Mr Parker’s recommendations for specialist audiology therapy, sound therapy, counselling or other psychological support, ongoing GP monitoring. It is said that Mr Parker considers the condition long term and expected to continue indefinitely. 15.2. The second document appears to be a heavily redacted letter addressed to the claimant referring to a medical report prepared by Mr Parker who confirms that the claimant has developed tinnitus as a direct result of the incident, which is considered severe, and has recommended referral to an audiologist.[16]It is right to say that the respondent’s solicitor was puzzled by these documents as they did not appear to be medical reports in a form recognised by him. He wrote to Mr Parker on 23 October 2025 saying that the respondent had been provided with what purported to be Mr Parker’s reports of 15 January 2025 and 15 October 2025. He outlined his suspicions that the documents were not genuine, and asked for Mr Parker’s comment. Mr Parker emailed back on 27 October 2025 to say he had no record of having provided reports on the dates in question. He set out the format he would normally provide a report in, which appeared to differ from the documents supplied by the claimant.[17]The respondent made an application to strike out the claims on the basis that the way the claimant had conducted proceedings had been scandalous, unreasonable or vexatious. In short, it submitted that the claimant had deliberately doctored or altered documents and submitted them to the tribunal as being true documents prepared by an expert for the purposes of the disability discrimination allegation, when they were not such reports. It submitted that this was fundamental dishonesty which made a fair trial impossible.[18]It would appear that Mr Parker did in fact produce a report on 11 December 2024, but it would appear that it was produced in the context of personal injury proceedings. I found that the documents produced by the claimant, in purported compliance with Employment Judge Tsamados’ order to produce medical evidence relating to disability, were a summary prepared by the claimant himself, and a heavily redacted letter from his solicitors. In the disposal of the strike out application I did not conclude that there had been fundamental dishonesty which made a fair trial impossible. I must indicate that this does not mean that I did not have some concerns that the claimant, in seeking to comply with an order to produce medical evidence relating to his disability, chose to produce his own summary of a medical report that he was in possession of, rather than producing the report itself. This might not be fundamentally dishonest, but it was lacking in transparency and candour, even for somebody representing themselves.[19]Mr Parker’s report (page 194ff) includes the following: 19.1. The claimant told Mr Parker he developed mental health issues following the workplace issue. 19.2. He experienced ringing and buzzing in both ears. 19.3. He does not always hear conversations, and finds this embarrassing. 19.4. Examination showed no evidence of hearing loss or external or middle ear disease. 19.5. He concluded that the claimant developed tinnitus as a direct result of the index incident. 19.6. The tinnitus has persisted and not improved with the passage of time. 19.7. He categorised the tinnitus as severe. 19.8. The claimant probably developed transient hearing middle frequency hearing loss on the right, which has reverted to normal, with some minor issues in the left ear consistent with the effects of aging. 19.9. There is no treatment for tinnitus. 19.10. It was likely that there were some “overriding mental health issues”. Mr Parker believed, based on his experience, that if such issues were diagnosed and robustly treated then it was likely that the tinnitus would become less intrusive. Having audiometrically well-preserved hearing placed the claimant in good prognostic group. 19.11. Mr Parker did not regard himself as an expert in the Equality Act 2010 but ventured an opinion that the claimant “probably should be regarded as disabled” but acknowledges this was an issue for the court to determine.[20]On 20 May 2025 Professor Rehman, a Clinical Psychologist, provided a report. There has been some redaction to the report, but my working assumption is that this report was also commissioned at the request of the claimant’s trade union’s solicitors in connection with the personal injury action. The report included: 20.1. The summary of the report concluded that the claimant developed severe situational anxiety disorder and generalised anxiety disorder. 20.2. This severely affected his social and emotional functioning. 20.3. 30% of the impact was due to pre-existing mental health issues. 20.4. Treatment by way of CBT and EMDR intervention was proposed. 20.5. The “estimated prognosis period” was 3-4 months with treatment or 10-12 without treatment. 20.6. At paragraph 11 onwards of the report Professor Rehman considers the diagnostic criteria for various conditions: 20.6.1. None of the diagnostic criteria for PTSD was met (paragraph 11.2). 20.6.2. At paragraph 12.3 the diagnostic criteria for depressive disorders were considered, and at paragraph 12.3.10 Professor Rehman concluded that “Overall the symptoms as described Do Not Meet the criteria for a depressive disorder as disclosed by the claimant”. In respect of “Anxiety and panic attacks” the criterion was met. 20.6.3. I note also underneath paragraph 12.3.9 appears the following “Criterion B – symptoms caused clinically significant impairment to social, occupation or other important areas of functioning. Was Not Met”. 20.6.4. The report sets out an assessment finding that psychometric tests results highlight an absence of distress and severe anxiety, and the impact appears to have had a moderate psychological impact to the claimant causing low level avoidance behaviours. 20.6.5. The report expressed an opinion that the claimant developed severe Situational Anxiety Disorder and severe Generalised Anxiety Disorder which severely affected his social and emotional function. The report expressed a further opinion that the claimant appears to be currently experiencing symptoms of moderate Situational Anxiety Disorder and Generalised Anxiety Disorder.
The law
[21]Section 6 Equality Act 2010 provides: - (1) A person (P) has a disability if— (a) P has a physical or mental impairment, and (b) the impairment has a substantial and long-term adverse effect on P's ability to carry out normal day-to-day activities[22]Schedule 1 Part 1 Paragraph 2 of the EA provides: - 1) The effect of an impairment is long-term if—(a) it has lasted for at least 12 months,(b) it is likely to last for at least 12 months, or(c) it is likely to last for the rest of the life of the person affected. (2) If an impairment ceases to have a substantial adverse effect on a person's ability to carry out normal day-to-day activities, it is to be treated as continuing to have that effect if that effect is likely to recur.[23]Part 2 of the same schedule obliges tribunals to take account of such guidance as it thinks is relevant. The “Equality Act 2010 Guidance: Guidance on matters to bet taken into account in determining questions relating to the definition of disability” (May 2011) (the “Guidance”) was issued by the Secretary of State pursuant to s. 6(5) of the EA 2010.[24]Unlike Disability Discrimination Act 1995, the EA does not set out what day-today activities might be. Section D of the Guidance is some assistance and gives some examples. The Appendix of the Guidance also gives an illustrative and non-exhaustive list of factors which would be reasonable to regard as having a substantial adverse effect on normal day-to-day activities, and a list of factors it would not be reasonable to regard as having a substantial adverse effect on normal day-to-day activities. 25.[26]The relevant point in time in assessing whether the claimant is disabled under section 6 EA is the time of the alleged discriminatory acts (Cruikshank v Vaw Motorcast Ltd [2002] ICR 729).[27]In J v DLA Piper UK LLP UKEAT/0263/09/RN the EAT observed at paragraph 42: - The first point concerns the legitimacy in principle of the kind of distinction made by the Tribunal, as summarised at para. 33 (3) above, between two states of affairs which can produce broadly similar symptoms: those symptoms can be described in various ways, but we will be sufficiently understood if we refer to them as symptoms of low mood and anxiety. The first state of affairs is a mental illness – or, if you prefer, a mental condition – which is conveniently referred to as "clinical depression" and is unquestionably an impairment within the meaning of the Act. The second is not characterised as a mental condition at all but simply as a reaction to adverse circumstances (such as problems at work) or – if the jargon may be forgiven – "adverse life events".[ We dare say that the value or validity of that distinction could be questioned at the level of deep theory; and even if it is accepted in principle the borderline between the two states of affairs is bound often to be very blurred in practice. But we are equally clear that it reflects a distinction which is routinely made by clinicians – it is implicit or explicit in the evidence of each of Dr Brener, Dr MacLeod and Dr Gill in this case – and which should in principle be recognised for the purposes of the Act. We accept that it may be a difficult distinction to apply in a particular case; and the difficulty can be exacerbated by the looseness with which some medical professionals, and most laypeople, use such terms as "depression" ("clinical" or otherwise), "anxiety" and "stress". Fortunately, however, we would not expect those difficulties often to cause a real problem in the context of a claim under the Act. This is because of the long-term effect requirement. If, as we recommend at para. 40 (2) above, a tribunal starts by considering the adverse effect issue and finds that the claimant's ability to carry out normal day-to-day activities has been substantially impaired by symptoms characteristic of depression for twelve months or more, it would in most cases be likely to conclude that he or she was indeed suffering "clinical depression" rather than simply a reaction to adverse circumstances: it is a common-sense observation that such reactions are not normally long-lived[28]In respect of direct discrimination, Section 13(1) of the Equality Act provides as follows: Conclusions Impairment
Conclusions
[29]I am satisfied on the evidence that the claimant has the physical impairment tinnitus. There is a continuity of evidence from sick certificates submitted while he was in employment to Mr Parker’s report.[30]The evidence in relation to anxiety associated with tinnitus is less compelling. The contemporaneous sick certificates refer to “work related stress”, “mental health issues” and “stress/anxiety”. There is also contemporaneous evidence in the form of OH reports (see paragraph 9 above). The OH report of 18 March 2024 refers to anxiety. The report of 10 May 2024 refers to stress and anxiety but appears very much to associate that with relationships with management and perceived work stressors. Again, the 18 June 2024 refers to unresolved work stressors, the resolution of which will impact on his ability to return to work. Finally, the 13 August 2024 report firmly places the anxiety as being associated with the return to work.[31]In the circumstances, the contemporaneous evidence appears to be pointing towards anxiety as being associated with workplace issues, and the strong suggestion from OH is that resolution of the workplace issues was key to resolution of the stress/anxiety issues.[32]Against that is the report of Professor Rehman. A report prepared on 20 May 2025 for the purposes of contemplated personal injury litigation. I confess I have not found the findings of this report particularly easy to follow. That said, he appears to be firm in his conclusion that the claimant experienced Situational Anxiety Disorder and Generalised Anxiety Disorder. While I have in mind the observations in Herry v Dudley Metropolitan Council [2017] ICR 210 that stress when it appeared to be a reaction to perceived unfair treatment may not amount to an impairment, it appears here that there is evidence of the impairment of anxiety. Substantial adverse effect[33]Substantial means more than minor or trivial. I must also concentrate on what the claimant cannot do because of the impairment. I can also consider the impact of more than one impairment in combination with each other to determine whether they have the requisite substantial effect.[34]The question of disability is very much a functional one, and it is for the claimant to establish that the impairment or impairments adversely impacted his day to day activities in a more than minor way. To do this involves adducing evidence to this effect.[35]Employment Judge Tsamados made orders for the preparation of a Disability Impact Statement. Paragraph 12.2 of his Orders read as follows: 12.2 What are/were the effects of[the impairment on the claimant’s ability to do day-to-day activities setting out the dates? The claimant should give clear examples. If possible, the examples should be from the time of the events the claim is about. The Tribunal will usually be deciding whether the claimant had a disability at that time. In general, day-to-day activities are things people do on a regular or daily basis, and examples include shopping, reading and writing, having a conversation or using the telephone, watching television, getting washed and dressed, preparing and eating food, carrying out household tasks, walking and travelling by various forms of transport, and taking part in social activities. Normal day-to-day activities can include general workrelated activities, and study and education-related activities, such as interacting with colleagues, following instructions, using a computer, driving, carrying out interviews, preparing written documents, and keeping to a timetable or a shift pattern.[36]As set out above at paragraph 12.3 and 12.4, the claimant responded to the Order with a brief set of bullet points. He did not give details or dates. His responses were generalised and did not give particular examples. Employment Judge Tsamados’ Order was clearly expressed and this was the claimant’s opportunity to spell out what particular activities of daily living were adversely impacted. The claimant did not expand on this at the hearing, beyond saying that in some of the medical evidence there were examples of the adverse impact of his conditions on his daily living. Without examples and specific evidence: 36.1. It was difficult to guage the frequency of his waking and difficulty sleeping. 36.2. It was difficult to assess what tasks were impacted by issues with concentration. 36.3. It was difficult to assess the extent of his difficulties with communication. Also, that this was down the impairment of tinnitus was difficult to square with the evidence from Dr Khan and Mr Parker of the lack of major impact on the claimant’s actual hearing.[37]On balance, having regard to the contemporaneous medical evidence, the further medical evidence and the claimant’s Disability Impact Statement, the claimant has not established on the evidence that his conditions had a substantial adverse impact on his ability to carry out day to day activities. Long term effect[38]It is not strictly necessary to deal with this issue as I have not found that the claimant has established that his impairments had a substantial adverse effect on his ability to carry out day to day activities. Overall conclusion on disability[39]The claimant has not established that he was a disabled person for the purposes of Equality Act 2010. Application to amend[40]This application was dealt with after I heard submissions on the application to strike out and submissions on the issue of disability. I told the parties that I had focussed my pre-hearing attention on the first two matters. I therefore took an early lunch to read up on matters relating to the amendment application, and heard submissions after lunch. I would also point out that amendments are case management orders and this section of the reserved decision does not appear in the judgment.[41]Much time was spent in the afternoon trying to work out what the claimant was seeking to add by way of amendment. I took the claimant to Employment Judge Tsamados’ case management summary; from this it was clear that the claimant was ordered to provide further information on his unfair dismissal claim, his disability related harassment claim and his reasonable adjustments claim. These claims were identified by Employment Judge Tsamados in his summary, would proceed as claims but needed particularisation. Employment Judge Tsamados also identified at paragraphs 34 and 38 that it appeared the claimant was seeking to add complaints of discrimination arising from disability, direct disability discrimination and victimisation. At paragraph 42 Employment Judge Tsamados set out that the claimant had provided no details in his claim form of claims for raced discrimination, whistleblowing and other payments. He said that 1) the claimant would need to make an application to amend to include additional claims (or withdraw claims), and 2) that he would need to set out the wording of the amendment sought, and explain why he had not made the application sooner.[42]I asked the claimant on a number of occasions where I could find the wording of proposed amendments. Eventually I was taken to page 177 of the bundle, which appears to be a document included in an email from the claimant of 12 November 2025. It reads: 4. Whistleblowing Detriment I raised concerns about surveillance, data handling, and procedural fairness. Following this:• I was subjected to disciplinary action• My union representative’s correspondence was ignored• My SAR was obstructed• I experienced further surveillance and exclusion This constituted a detriment under the Employment Rights Act 1996. 5. Race Discrimination I was treated less favourably than a colleague, Marcio Marthino, who caused my injury, and who was praised and protected. In contrast:• I was subjected to disciplinary action• Surveillance was directed at me• I was excluded from recognition and support This constituted direct race discrimination under Section 13 of the Equality Act 2010.[43]The claimant said on a couple of occasions that he did not seek to pursue his application to amend to include these claims. I asked the claimant on more than one occasions whether he was absolutely sure this is what he wanted to do. He was clear that he was sure that he did not pursue this amendment.[44]I therefore will not deal with this. I would observe that had I been called upon to make a decision I would not have allowed these amendments. By nature they are not clear, have no particulars about what information was disclosed, to whom, how and when, the dates of alleged detriments, the form of less favourable treatment etc.[45]In further discussion I told the claimant that I was unable to see what amended discrimination arising from disability claim he was seeking to make. As far as I could understand the discussion, the claimant appeared (once again in the document attached to the 12 November 2025 email) that he was seeking to amend his reasonable adjustments claims. He says that the respondent applied procedures that placed him at a substantial disadvantage by: “• Initiating disciplinary action while I was medically unfit• Refusing to engage with my union representative• Withholding key images and data in response to my SAR• Requiring me to attend a Kusco property to view CCTV footage• Ignoring medical evidence linking my tinnitus to a workplace injury”
The law
[46]The power to allow a party to amend a claim or response is a case management power under Rule 30 ET Rules, to be exercised in accordance with the overriding objective in Rule 3.[47]The case of Selkent Bus Co Ltd v Moore [1996] IRLR 661 sets out some of the primary factors Tribunal should take into account in exercising the discretion to grant an amendment. These include: - 47.1. The nature of the amendment: 47.2. The applicability of time limits; and 47.3. The timing and manner of the application. 48.Selkent emphasised that “the paramount considerations are the relative injustice and hardship involved in refusing or granted 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 to reaching a decision”.[49]In Vaughan v Modality Partnership [2021] IRLR 97 the EAT pointed out that the Selkent does not require a box ticking exercise, and again emphasised the core importance of considering the balance of injustice and hardship in allowing or refusing the application. Vaughan also made reference to the fact that tribunal’s should deal with the real practical consequences of allowing or refusing amendments rather than dealing with hypotheticals or assumptions. Representatives may be required to take instructions about these practical consequences.[50]In Abercrombie v Aga Rangemaster Ltd [2013] IRLR 953 the Court of Appeal observed that the approach of tribunals faced with applications to amend is “to 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.''[51]In Chandhok v Tirkey [2015] ICR 527 the EAT observed “The claim, as set out in the ET1, is not something just to set the ball rolling, as an initial document necessary to comply with time limits but which is otherwise free to be augmented by whatever the parties choose to add or subtract merely upon their say so. Instead, it serves not only a useful but a necessary function. It sets out the essential case. It is that to which a Respondent is required to respond. A Respondent is not required to answer a witness statement, nor a document, but the claims made – meaning, under the Rules of Procedure 2013, the claim as set out in the ET1.”[52]The Employment Tribunal (England and Wales) Presidential Guidance – General Case Management (2018) Guidance Note 1 (“PGGCMG”) sets out guidance that tribunals must have regard to in exercising the discretion to grant an amendment. This also emphasises the importance of carrying out “a careful balancing exercise of all the relevant factors, having regard to the interests of justice and the relative hardship because parties by granting or refusing the amendment”. It highlights the three Selkent factors, and provides guidance on the labelling claims, time limits, adding grounds of complaint and adding and removing parties.
Conclusion
[53]By nature the application to amend is unclear and not particularised. I have attempted not to be too fussy about the label of the proposed claim, be it an adjustments claim or a discrimination arising claim. That said, the claimant has simply set out a series of bullet points that do not set out proposed claims with clarity. It is difficult to see the legal nature of the claims. If I were to allow the amendment we would be walking straight into an application to particularise the claim.[54]I did inform the claimant about the factors which a tribunal would consider in determining an application to amend, but I was unclear about why the claimant says he put the application in when he did. He said that he was “trying to update as things were happening”. He said he was seeking to clarify and not change his claims.[55]Similarly the claimant did not address the issue of disadvantage to either party. Again, he said that he was seeking to clarify rather than add claims.[56]In the circumstances, and having regard to all these matters, I do not allow amendments which are not clear, which require further particularisation, about which there is no satisfactory explanation why they were not included earlier and about which no submissions were made on prejudice. The way ahead[57]Following my determinations on disability and amendment the claim will go ahead on a slimmed down basis. Employment Judge Tsamados identified claims of unfair dismissal, breach of the duty to make reasonable adjustments and disability related harassment. The unfair dismissal claim is the only one which will go ahead.[58]The parties should be in a position to agree a List of Issue for a constructive unfair dismissal case. I will enclose a draft template for such a claim for the parties to agree a final List of Issues. The parties may also wish to write in with any observations they may have about the listing of this case. It was listed for 5 days when it was also a disability discrimination claim. It may be that a shorter time estimate is warranted. Approved by: