C Nolan v West Thames College: 6013719/2024
JUDGMENT
[1]The claimant has permission to amend her claim form in the form attached to her application dated 13 February 2025.REASONS
[2]The tribunal gave reasons orally for its decision to allow the claimant to amend her claim in the form of the attachment to her application to amend dated 13 February 2025.[3]These were in summary as follows:[4]The tribunal considered the draft amendments in the course of a case management hearing.[5]The proposed amendments related to allegations of conduct by a Mr Stober of the respondent. They concern allegations which on the face of it raised claims of direct discrimination on the ground of the protected characteristic of sex, harassment in the grounds of sex and/or sexual harassment.[6]It furthered the overriding objective to deal with the amendment application at this hearing. Further clarifications are directed to be provided of the claimant’s claims in general.[7]The tribunal considered the parties submissions. It considered in particular the time limits, the nature of the amendments sought, the reason why the amendments were made when they were, and the balance of prejudice in all the circumstances.[8]The following considerations weighed against permitting the amendments:-8.1 The events referred to relate to conduct between March 2023 and March 2024. They are therefore somewhat historical;8.2 They are substantial amendments which introduce new facts and new claims. The claims they introduce are serious ones, which involve a PHCM Order 1 of 3 September 2023 burden on both the respondent and the person alleged to be responsible for the conduct;8.3 They were not brought within the statutory time period. To allow them to be brought would deprive the respondent of a statutory defence;8.4 The application to amend was made long after the end of the time limit. – 13 October 2025. They would be out of time if brought now.8.5 The reasons given for not bringing the claims earlier were insubstantial. The claimant said she did a bad job initially and referred to events (bereavement and an accident) as reasons for the delayed application.8.6 The respondent is relying on jurisdiction/time limits defences to the claimant’s initial claims, these claims would have been out of time even if brought in the original claim form;8.7 The new claims likely will require additional evidence;8.8 The allegations in many cases rely on events which are one person’s word against another. The erosion of memory arising from delay is a significant factor;[9]The factors in favour of granting permission to amend were:-9.1 The allegations were of a serious nature. If permission were refused, the claimant would not be able to bring the claims;9.2 The procedural history of the case, which has involved lost correspondence and communications, mean that, although late in the day, the case has not substantively moved past the initial claim stage, there is therefore little or not procedural prejudice to the respondent;9.3 Although not the strongest, the claims were not without merit;9.4 Some complaints are made against Mr Stober in the ET1 as originally pleaded. It is possible that the claimant would be able successfully to show that there was a course of conduct involving that person that included the conduct concerning sex/sexual harassment;9.5 Although the application to amend was made late, the allegations were formulated on 27 October 2024 and were communicated to the respondent.9.6 The case of Galilee v the Commissioner of the Metropolis encourages time limits claims to be dealt with a final hearings in light of all the evidence at that hearing.9.7 The respondent is not precluded from making an application at a later preliminary hearing to strike out the claims in the amendment (or the initial claims) or to seek deposit orders if so advised. It is also able to make applications to strike out on the basis of time limits either before or at the full hearing.[10]On balance I decided that the balance of prejudice, in all the circumstances fell narrowly in favour of the claimant and of allowing the amendment. Approved by Employment Judge Cox Dated: 24 February 2025 PHCM Order 2 of 3 September 2023 Note Reasons for the judgment were given orally at the hearing. Written reasons will not be provided unless a party asked for them at the hearing or a party makes a written request within 14 days of the sending of this written record of the decision.