Mrs M Scott v J C Frost (Holdings) Ltd: 6010762/2024

EMPLOYMENT TRIBUNALS

Case No 6010762/2024

Between

Mrs M ScottClaimant

J C Frost (Holdings) Limited RECORD OF A PRELIMINARY HEARINGRespondent

Before

First Tier Tribunal Judge Davison sitting as an Employment Judge

Mr B Wells (instructed by Counsel) for claimant

Ms A Wright (instructed by Counsel) for respondent

Date 1 October 2025

JUDGMENT

[1]The claimant’s application to amend her claim to include claims under section 21 of the EA 2010, that the respondent had failed to make reasonable adjustments and a claim for harassment under section 26 EA 2010 is refused.

[2]The respondent’s application to convert the hearing of 17,18 and 19 November 2025 to in person, as opposed to the current CVP listing, is refused.

REASONS

[1]The relevant background to the application to amend the claim can be summarised as follows. On 5 September 2024 an ET1 was received. The claimant stated, at paragraph 8.1 of the same, that she wished to bring a claim of (constructive) unfair dismissal. The summary facts to the claim were set out at 8.2. On 7 October 2020 the respondent filed the ET 3.

[2]On 9 November 2024 a Notice of the final hearing (to be conducted over CVP on 17, 18 and 19 November 2025) was sent to the parties along with relevant Case Management Orders. Within this Notice the following was noted. ‘EJ Quill has listed the final hearing on the basis that it appears that the only claim that has been brought is unfair dismissal (based on an alleged constructive dismissal). 1 of 5 If the Claimant believes that she is bringing any other claim, for example an alleged breach of Flexible Working legislation, or an alleged breach of the Equality Act, then she must write to the Tribunal and the Respondent by 25 November 2024, and a preliminary hearing might be required to discuss further.’

[3]No response was received in this timeframe.

[4]On 15 May 2025 the claimant’s representative made an application to amend the claim and admit further information. Substantively the claimant wished to advance a claim under section 21 of the EA 2010, It was alleged the respondent had failed to make reasonable adjustments. A claim for harassment under section 26 EA 2010 was also advanced. On 17 July 2025 the respondent replied to the application. i) The respondent raised no objection to the name of the respondent being corrected to J C Frost (Holdings) Limited, ii) The respondent had no objection to the additional factual details being provided with regard to the existing allegations. iii) The respondent object to the application to raise new factual allegations and/or change the basis of claim.

[5]The matter was therefore set down for a Preliminary Hearing.

[6]In the case of Selkent Bus Company Limited v Moore

[1996] ICR 836

the Employment Appeal Tribunal (“EAT”) set out the test to be applied by a Tribunal in deciding whether to exercise its discretion to grant an amendment. It said 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. The EAT in Selkent also set out a list of factors which are certainly relevant, which are usually referred to as the “Selkent factors”. In brief they are:(1) The nature of the amendment i.e. whether the amendment sought is one of the minor matters or is a substantive alteration pleading a new cause of action;

(2) The applicability of time limits. If a new complaint of 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; and

(3) 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 making amendments, but delay 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 discovery of new facts or new information).

[7]In the case of Vaughan v Modality Partnership

UKEAT/0147/20/BA

the EAT reminded parties and Tribunals that the core test in considering applications to amend is the balance of injustice and hardship in allowing or refusing the 2 of 5 application. The exercise starts with the parties making submissions on the specific practical consequences of allowing or refusing the amendment. That balancing exercise is fundamental. The Selkent factors should not be treated as if they are a list to be checked off.

[8]The issue of amendment applications was more recently discussed in CX v Secretary of State for Justice

[2025] EAT 114

[9]All the above guidance has been considered in assessing this application. Analysis of the practical impact of granting or refusing the application must be undertaken. In determining whether to grant an application to amend, an employment tribunal must always carry out a careful balancing exercise of all the relevant factors, having regard to the interests of justice and to the relative hardship that would be caused to the parties by granting or refusing the amendment.

[10]The hardship and injustice test is a balancing exercise. Lady Smith noted in Trimble and anor v North Lanarkshire Council and anor EATS 0048/12 that it is inevitable that each party will point to there being a downside for them if the proposed amendment is allowed or not allowed.

[11]I have considered the original ET 1 claim form and the extracts of the same helpfully highlighted by Mr Wells. It was submitted that, in part, the claimant was seeking to have her claim relabelled. i) nature of the amendment

[12]I find the substantive amendments sought are not of clerical or typographical nature. It is a change of a head of claim to add both a failure to make reasonable adjustments and harassment claim. Additional facts concerning events are being relied upon. Whilst there is some overlap as the claimant alleges that the harassment she alleges and the failure to make reasonable adjustments all link to the constructive unfair dismissal claim. Both parties agreed that evidence would have to be disclosed regarding disability, the respondent would have to consider whether disability was accepted and the hearing set down in November 2025 would have to be vacated due to insufficient time and the changes that would need to be made to the documents already disclosed. More time would also need to be provided for witnesses to be cross examined. This does therefore change the basis of the existing claim. If a hearing has to be vacated, more evidence provided and further legal issues to be considered the amendment is not clerical or typographical but far more substantive. I find the amendment is not therefore a minor change. ii) applicability of time limits

[13]The application would be out of time given that it is a substantive new head of claim. In order for it to be admitted the time limit would have to be extended on a just and equitable basis. 3 of 5 iii) the timing and manner of the application

[14]An application should not be refused solely because there has been a delay in making it as amendments may be made at any stage of the proceedings. 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. The claimant’s representative made clear that the basis for the late claim was that the appellant had not realised that her medical conditions could give rise to a claim for failure to make reasonable adjustments and it was also submitted that the claimant did not have sufficient funds prior to May 2025 when the amendment application was made.

[15]The Presidential Guidance on General Case Management for England and Wales notes the Selkent provisions are not intended to be an exhaustive list. There may thus be additional factors to consider in any particular case (Conteh v First Security Guards Ltd EAT 0144/16).

[16]I have therefore considered all matters advanced including the Selkent provisions. As noted the claimant’s grounds for seeking an amendment are lack of legal understanding at the time of lodging her claim as a litigant in person and lack of funds until shortly before the amendment application was lodged.

[17]As noted above in Vaughan v Modality Partnership

2021 ICR 535

, EAT, His Honour Judge James Tayler emphasised that 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. The claimant’s representative stated that the claimant would be prohibited from raising heads of claim that were, at least in part, apparent in her ET 1. She would therefore be denied justice.

[18]The claimant’s representative stated there was no real hardship caused to the respondent or prejudice if the application were to be granted. The witnesses were still employed by the respondent. Whilst some additional facts would need consideration and the issue of disability contemplated these matters can be accommodated and so the overall balance lay in the claimant’s favour. For the respondent, at page 69 of the bundle prepare for this preliminary hearing, a list of factual allegations that were said to be entirely new is set out. Having reviewed these factors I find that there have been several additional factual elements advanced by the claimant such as having to change a car to be able to attend a place of employment, being made to sit in a certain place and not being allowed to move desk. There is a lack of detail regarding any adverse comments that were made to substantiate a harassment claim. I also find it of note that an experienced Employment Judge when assessing the ET 1 and attempting to ascertain potential heads of claim considered that the claimant was only advancing a claim of constructive unfair dismissal. It was not therefore obvious or apparent that any other heads of claim were being advanced.

[19]The claimant can advance her claim for constructive unfair dismissal and any facts that go to establish the same can be relied upon. If the amendment is not allowed 4 of 5 her potential recovery (financial) would be capped. If the hearing date scheduled in November 2025 is lost the matter may well not be relisted for many months, this can affect the memory of those involved, leave the matter is hanging over everyone concerned and delay the outcome of the hearing.

[20]I finally note the timing of this application, it was not served on the respondent until 15 May 2025 when it ought to have been served, at the very latest, in compliance with previous Notice of hearing and CMO by 25 November 2024. The hearing is listed for 3 days in November 2025. Whilst arguably the hearing could be delayed and costs awarded to the respondent for any inconvenience and delay caused (although it is possible that the claimant would have insufficient funds to be able to pay), for the reason given above and in considering all matters in the overall balance, the Selkent factors and the others listed above, I refuse the application to amend. The fact that the claimant is a litigant in person does not excuse her failure to set out the narrative on which she wishes to advance her claims. Further, as noted above the Tribunal had also considered the same and provided a further opportunity for the claimants to clarify the claim she wished to advance. To allow such substantive amendments, at this late stage, I find would unfairly tip the balance of injustice and hardship against the respondent.

[21]The respondent separately made an application to have the three-day CVP hearing converted to face to face. It was the respondent’s position that having an in-person hearing would mean that all who attended would be “secure in the knowledge that justice would be seen to be done.” It was also submitted that a face-to-face hearing would be in keeping with the overriding objective given the complexity of the issues. Given my refusal to amend the application this is a claim for constructive unfair dismissal which is set down for 3 days. I do not find there to be factors, or any such compelling factors, that justify alteration of the listing. The claimant’s representative mentioned various health issues from which the claimant suffers and that changing the listing to an in-person hearing would simply cause unnecessary distress and inconvenience. Having reviewed the evidence. I agree with this assessment and refuse the application to alter the listing. The hearing will therefore proceed in November 2025 over the CVP platform.

[22]The parties confirmed the CMOs previously issued address all further matters and so those CMO will stand for the listing and timetabling of the substantive issues now to be decided in November 2025. Approved By: First Tier Tribunal Judge Davison sitting as an