Mr F Kubes v Department for Work and Pensions: 6013763/2025
EMPLOYMENT TRIBUNALS
Case No 6013763/2025
Between
Mr. F. KubesClaimantDepartment for Work and Pensions RECORD OF A PUBLIC PRELIMINARYRespondent
Before
Employment Judge J. Galbraith-MartenIn person for claimantMr. S. Maini-Thompson (instructed by Counsel) for respondentDate 16 December 2025
JUDGMENT
[1]The claimant’s application to amend his claim to include a wrongful dismissal complaint was refused.[2]The claimant does not have two years’ continuous service required to bring an unfair dismissal claim under s.108 Employment Rights Act 1996 and that claim is struck as having no reasonable prospect of success in accordance with Rule 38(1)(a) Employment Tribunal Procedure Rules 2024 and is dismissed.[3]The claimant’s sex discrimination claim is struck as having no reasonable prospect of success in accordance with Rule 38(1)(a) Employment Tribunal Procedure Rules 2024 and is dismissed.
REASONS
[1]Judgment was given orally on 16 December 2025. On 26 December 2025 and in accordance with Rule 60(4)(b) Employment Tribunal Procedure Rules 2024 the claimant requested written reasons, and they are provided below in accordance with that request.
Introduction
[2]The purpose of the preliminary hearing was to deal with the applications as set out in the Tribunal’s letter to the parties dated 4 July 2025. The claimant’s application to amend his claim to include a wrongful dismissal claim and the respondent’s application to strike out the claim in its entirety on the basis it has no reasonable prospects of success in accordance with Rule 38(1)(a) Employment Tribunal Procedure Rules 2024.[3]I was provided with a 416-page bundle, a skeleton argument from the respondent and I heard submissions from both parties on their respective applications.[4]The claimant was employed by the respondent as an executive work coach at the Acton job centre between 13 November 2023 and 14 January 2025. He was dismissed summarily for gross misconduct. A female customer complained about his behaviour towards her and following an investigation, the respondent found those allegations substantiated.[5]The claim was presented on 18 April 2025. Early conciliation commenced on 10 February 2025 and ended on 19 March 2025. The claimant pursues claims of unfair dismissal and sex discrimination, and the respondent denies the claimant was discriminated against or unfairly dismissed. Claimant’s application Claimant submissions[6]I heard the amendment application first and the claimant submitted when he presented his original claim, he wasn’t aware of all the facts, and he had never completed a claim form before. The online form was restrictive in the number of words he could use, and he was not aware that he could upload other documents.[7]The claimant submitted amendment applications on 25 May 2025 and 13 July 2025 and they were included at pages 44, 50, 51, 52, 53 & 54 of the bundle. His position is the applications sought to add clarification regarding his sex discrimination complaint and wrongful dismissal claim but that clarification did not introduce new claims.[8]The claimant relied on the facts and documents regarding his dismissal. He relied on his appeal letter, the notes from the appeal meeting, the appeal outcome, and the respondent’s HR advice to appeal managers. Those documents were included at pages 55 - 77 of the bundle.[9]I asked the claimant if he understood that wrongful dismissal was a separate head of claim to a discriminatory dismissal, and he confirmed that he did and he thought he had ticked that box when completing the online form. Respondent’s submissions[10]The respondent’s position was it did not understand the claimant’s amendment application. There is no wording in his claim form seeking notice pay and it is not alluded to. Whatever reason the claimant might have regarding ticking boxes on the online platform is irrelevant. If the claimant intended to bring a wrongful dismissal claim he would have described it as he did regarding his claims for sex discrimination and unfair dismissal in the claim form.[11]The respondent objected to the amendment and submitted the wrongful dismissal claim is out of time. The claimant is seeking permission to bring a new claim for which the time limit is strict, and the claimant provided no explanation why it was not reasonably practicable for him to bring that claim in time.[12]The respondent requested the claimant’s application be dismissed applying the principles in Selkent. There was no good explanation for the delay from the claimant, the claimant was seeking to bring a new claim out of time, and it is in the interests of proportionately for the respondent to have finality in respect of this litigation and allowing the amendment would elongate the proceedings thereby prejudicing the respondent. Law[13]The leading authority on amendments is Selkent Bus Company Ltd v Moore [1996] ICR 836. In deciding whether to exercise my discretion to grant leave for an amendment, I should consider all the circumstances and balance the injustice or hardship which would result from granting or refusing the amendment. The factors to be considered include the nature of the amendment, the applicability of the statutory time limits, and the timing and manner of the application to amend. However, this is not a checklist and should not be treated as such.[14]The Court of Appeal held in Abercrombie and ors v Aga Rangemaster Ltd [2014] ICR 209, CA that in respect of amendment applications, the focus should be on the extent to which a new amendment would be likely to involve different areas of enquiry.[15]In Vaughan v Modality Partnership [2021] ICR 535, EAT the Employment Appeal Tribunal emphasised the core test in an amendment application is the balance of injustice or hardship in allowing or refusing the application.[16]In Chaudhry v Cerberus Security and Monitoring Services Limited [2022] EAT 172, the Employment Appeal Tribunal suggested a two-step approach to amendment applications. The first stage is identifying the amendment sought and the second stage is balancing the injustice or hardship of granting or refusing the amendment considering all the relevant factors including those referred to in Selkent.[17]The Presidential Guidance on General Case Management for England and Wales states there is a distinction between applications to amend which add new claims essentially out of facts that have already been pleaded and applications to add new claims which are entirely unconnected with the original claim. The Tribunal must consider the entirety of the claim form.
Conclusion
[18]The relevant sections of the claim form were included at pages 11 & 12 of the bundle. The claimant did not tick the notice pay or other claims box. He ticked the unfair dismissal and sex discrimination boxes only. On page 12, setting out the details of the claim, there was no reference to notice pay.[19]The claimant first submitted an amendment application on 25 May 2025, and that amendment was about the sex discrimination claim, he stated “I wanted to provide more details why I feel the way I do, and I would like to provide multiple supporting documents.”[20]The second amendment application submitted on 13 July 2025 with accompanying attachment also referred to the sex discrimination complaint and the claimant further stated he wanted to provide “a detailed basis for wrongful dismissal which I have ticked in my original application but not explained on ET1.” It also sought to clarify the contractual breaches in respect of the wrongful dismissal claim. The claimant alleges breaches of the respondent’s disciplinary guidance is the basis for his wrongful dismissal claim.[21]Following the guidance in Chaudhry the amendment to the claim relates to the respondent’s breach of contract by failing to provide the claimant with notice pay. This is a new claim that was not raised in the claim form albeit the claimant believed he had included it.[22]The first reference to wrongful dismissal and the basis for that claim was in the amendment application of 13 July 2025. Although connected to the claimant’s dismissal, wrongful dismissal is a different cause of action and raises new facts and complaints regarding the respondent’s conduct that were not included in the original claim form.[23]As the wrongful dismissal is a new claim I must consider whether it has been made in time and as set out in the Employment Tribunal Extension of Jurisdiction (England & Wales) Order 1994 claims of this nature are required to be submitted within the period of 3 months beginning with the effective date of termination. As it was first raised with the Tribunal on 13 July 2025 and the claimant was dismissed on 14 January 2025 this claim has been presented out of time.[24]Therefore, I must consider where it was not reasonably practicable for the complaint to be presented in time or within such further period as the Tribunal considers reasonable.[25]The response to the sex discrimination and unfair dismissal claims was accepted on 23 May 2025 (and the wrongful dismissal claim was not referred to) and claimant submitted his first amendment application after on 25 May 2025 and there was no reference to the wrongful dismissal claim.[26]Save for his mistaken belief that he had ticked the relevant box; there was no other explanation from the claimant why this claim was not raised earlier.[27]I find it was reasonably practicable for this claim to have been raised when the claimant submitted his original claim form or latterly by the 25 May 2025 after he received the response form and when he submitted his first amendment application, that being a further reasonable period of time. However, as it was not raised until 13 July 2025, I do not exercise my discretion to extend time in respect of the wrongful dismissal claim.[28]The claimant did not raise any specific hardship if I were to refuse the amendment application, the respondent did raise the necessity of finality of litigation and understanding the extent of the case it needs to meet.[29]Notwithstanding the proceedings are at an early stage, the wrongful dismissal claim is a new cause of action that has been presented out of time and balancing the hardship between both parties, I find the prejudice to the respondent would be greater if were to grant the amendment as it would be required to respond to a new complaint and therefore the application to amend is refused. Respondent’s application[30]The respondent’s application to strike out related to both the claimant’s unfair dismissal and sex discrimination complaints on the basis that both have no reasonable prospect of success. Unfair Dismissal[31]In relation to the unfair dismissal claim, the respondent submitted the claimant does not have sufficient service to pursue the claim as provided in s.108 Employment Rights Act 1996.[32]The claimant had 14 months service at the date of dismissal, and he did not dispute his length of service albeit he pursues a sex discrimination complaint regarding his dismissal which does not require two years continuous service.[33]Therefore, and as the claimant did not have sufficient service to pursue an unfair dismissal claim, it has no reasonable prospects of success and is struck out in accordance with Rule 38 (1)(a) Employment Tribunal Procedure Rules 2024. Sex Discrimination Claimant submissions[34]Regarding the sex discrimination claim, the claimant clarified that his complaint was of direct discrimination and the act of discrimination was his dismissal.[35]In the claim form the claimant referred to unconscious bias having played a role in his dismissal and the basis of the sex discrimination claim was elaborated on in his amendment of 13 July 2025.[36]The claimant submitted his claim did have a reasonable prospect of success and he referred to the respondent’s approach to the credibility between himself and the customer who complained about his behaviour, namely her account of events was taken as read but he was not believed. Furthermore, the customer relying on emotion during the investigation might have swayed the respondent. In the appeal outcome letter, the respondent implied the claimant was blaming the victim. The claimant highlighted unconscious bias during the appeal process, but the respondent didn’t act on that or question it. Dismissal was only one of a range of sanctions available to the respondent and HR advice regarding the respondent’s obligations in accordance with the Equality Act 2010 was not taken into consideration. Respondent submissions[37]The respondent submitted the claimant was dismissed for gross misconduct which involved inappropriate contact and cultivating a relationship with a customer and engaging with her on social media, about which she complained. The claimant was a work coach, she was a customer, not an employee of the respondent.[38]A comparator in a direct discrimination complaint must be similar in all material circumstances, and that would have to be a female work coach also facing a disciplinary investigation for the same reason, who would not have been dismissed. That is not the claimant’s case, his complaint is the customer’s evidence was believed over his own, but that doesn’t substantiate a discrimination complaint, that goes to the merits of his dismissal not whether his sex was a relevant factor in the disciplinary process or the decision to dismiss him.[39]In respect of the unconscious bias point, the claimant has raised no prima facie evidence to substantiate that. The information supplied by the claimant relates to the wrong comparison, there is no evidence of the alleged unconscious bias, or how it significantly influenced the relevant decision maker. It is pure conjecture. The claimant provided no reason why his sex was relevant, and that being the position there is no material prospect of him being able to shift the burden of proof, and because he can’t do that, his claim cannot have a reasonable prospect of success.[40]However, if the claim has limited prospects, despite the architecture of the complaint being incoherent, the respondent requested that I consider making a deposit order. The respondent acknowledged the Tribunal must act carefully in discrimination cases, but this is a case where there is zero evidence. The claimant has articulated the basis of his complaint; he is not comparing himself to an employee of the respondent and the complaint does not get off the ground. The respondent submitted the sex discrimination claim should be struck out. Claimant’s reply to respondent’s submissions[41]The claimant was given an opportunity to respond to the respondent’s submissions, and he confirmed that he relies on a hypothetical comparator; he is not comparing himself with the customer. He believes a woman in the same circumstances would have been treated better by the respondent.[42]He submitted the respondent failed to investigate his concerns, they blamed him, his evidence in this case is inferred from the respondent’s pattern of behaviour rather than direct evidence. In his appeal meeting, his trade union representative highlighted his case had been misclassified, his behaviour was not gross misconduct. The claimant accepted there was inappropriate talk with the customer, but it did not meet the criteria for gross misconduct. The respondent’s HR advice was that dismissal was one of the options. Why did the respondent dismiss him and not provide a warning, the claimant was suspended immediately but there was an option to remove him from contacting the customer instead. The respondent took his laptop, blocking his access to its policies and therefore, he couldn’t properly defend himself during the process. Respondent’s reply to the claimant’s reply[43]The respondent replied to the claimant’s points and submitted that he made no reference to a hypothetical comparator in the claim form and despite that assertion he pivoted again to comparison with the customer, in that her evidence was preferred to his. The claimant accepted he engaged with the customer outside of work. Based on his submission, the claimant wants the Tribunal to investigate why the respondent decided it was gross misconduct and that is not a claim for sex discrimination. Therefore, the claim has no reasonable prospect of success. Law Direct Discrimination[44]Section 13 of the Equality Act 2010 defines direct discrimination as follows: ‘A person(a) (A) discriminates against another(b) (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.’ In this matter the claimant relies on the protected characteristic of age.[45]To succeed with a direct discrimination claim a claimant must have been treated less favourably than a comparator because of the protected characteristic. The conventional approach to considering whether there has been direct discrimination is a two-stage approach: considering first whether there has been less favourable treatment by reference to a real or hypothetical comparator; and secondly considering whether that treatment is because of the protected characteristic.[46]A comparator must not share the protected characteristic. S.23(1) Equality Act 2010 provides there must be no material difference between the circumstances relating to each case. In Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] ICR 337, HL Lord Scott explained this means ‘the comparator required for the purpose of the statutory definition of discrimination must be a comparator in the same position in all material respects as the victim save only that he, or she, is not a member of the protected class’.[47]Tribunals are encouraged to address both stages of the test by considering a single question: the ‘reason why’ the employer did the act or acts alleged to be discriminatory. Was it on the prohibited ground or was it for some other reason? Again, in Shamoon, the House of Lords commented that by tying themselves in knots attempting to identify a comparator, Tribunals run the risk of failing to focus on the primary question, namely, why was the claimant treated as he was.[48]The question whether an alleged discriminator acted ‘because of’ a protected characteristic is a question as to their reasons for acting as they did. This is the ‘reason why’ question and the test is subjective in accordance with Nagarajan v London Regional Transport [1999] IRLR 572, HL.[49]This was confirmed recently in Gould v St John’s Downshire Hill [2021] ICR 1, EAT, the Employment Appeal Tribunal stated, ‘The question whether an alleged discriminator acted “because of” a protected characteristic is a question as to their reasons for acting as they did. It has therefore been coined the “reason why” question and the test is subjective… For the tort of discrimination to have been committed, it is sufficient that the protected characteristic had a “significant influence” on the decision to act in the manner complained of. It need not be the sole ground for the decision… the influence of the protected characteristic may be conscious or subconscious.’[50]However, the fact the claimant has been subjected to unreasonable treatment is not, of itself, sufficient as a basis for an inference of discrimination to cause the burden of proof to shift. This was established by the House of Lords in Glasgow City Council v Zafar 1998 ICR 120, HL. However, the position may be different if the conduct is unexplained, as held by the Court of Appeal in Igen v Wong [2005] ICR 931, CA.[51]Furthermore, even if a claimant can establish unfair or unreasonable conduct, which may amount to less favourable treatment than that which was (or would have been) meted out to a comparator (whether real or hypothetical) a Tribunal must not automatically assume that such conduct was motivated by the protected characteristic relied on and was thus directly discriminatory. There must be some evidential basis for drawing such a conclusion or adverse inference.[52]The standard of proof the Tribunal must apply is the civil standard that is the balance of probabilities. Something asserted by a party can only be a fact if it is shown by sufficient evidence to be more probable than not.[53]In relation to discrimination claims. the burden of proof rule is set out in s.136 Equality Act 2010 which provides where a claimant proves facts from which a tribunal could conclude in the absence of an adequate explanation that the respondent has discriminated against the claimant (a prima facie case), the Tribunal must uphold the complaint unless the respondent proves that it did not discriminate.[54]How that works in practice was discussed in Igen v Wong [2005] IRLR 258, CA & Madarrassy v Normura International Plc [2007] ICR 867, CA. In Madarassy the Court of Appeal stated: at the first stage the claimant must prove a prima facie case and, ‘The bare facts of a difference in status and a difference in treatment only indicate a possibility of discrimination. They are not, without more, sufficient material from which a tribunal “could conclude” that, on the balance of probabilities, the respondent had committed an unlawful act of discrimination.’ If the claimant establishes a prima facie case, the second stage is the burden shifts to the respondent to prove it has not committed an act of unlawful discrimination.[55]Evidence of direct discrimination is unusual, and Tribunals can draw inferences from facts, all the relevant surrounding circumstances and an examination of the actions of the alleged discriminator but motive is not relevant as provided in Ahmed v Amnesty International [2009] ICR 1450. However, clear findings of fact are required. As Lord Justice Peter Gibson stated in Chapman v Simon [1994] IRLR 124, CA, ‘a mere intuitive hunch… that there has been unlawful discrimination is insufficient without facts being found to support that conclusion’.[56]However, the burden of proof rule should not be applied in too strict or a mechanical manner. In Hewage v Grampian Health Board [2012] UKSC 37, the Supreme Court approved the obiter comments of Justice Underhill in Martin v Devonshires Solicitors [2011] ICR 352 that there might be cases when there are clear non-discriminatory reasons for the treatment in question without the need to resort to the burden of proof rule. He stated while ‘the burden of proof provisions in discrimination cases… are important in circumstances where there is room for doubt as to the facts necessary to establish discrimination — generally, that is, facts about the respondent’s motivation… they have no bearing where the tribunal is in a position to make positive findings on the evidence one way or the other, and still less where there is no real dispute about the respondent’s motivation and what is in issue is its correct characterisation in law’. This was endorsed by the Supreme Court in Efobi v Royal Mail Group Ltd [2021] ICR 1263, SC. Strike Out[57]The Tribunal must first decide whether one of the grounds identified in Rule 38 is made out and if so whether to exercise its discretion to order strike out as confirmed in Hasan v Tesco Stores Ltd EAT0098/16. In exercising discretion Tribunals must have regard to the overriding objective to deal with cases fairly and justly.[58]In Mbuisa v Cygnet Healthcare Ltd EAT 119/18 the Employment Appeal Tribunal held that strike out is a draconian step and should only be taken in exceptional circumstances. This may include circumstances when the facts of the case are demonstrably untrue.[59]In Anyanwu and anor v South Bank Student Union and another [2001] ICR 391, HL, the House of Lords stressed the importance of not striking out discrimination claims save for in the most obvious of cases.[60]In Balls v Downham Market High School and Colleges [2011] IRLR 217, EAT the Employment Appeal Tribunal stated that where strike-out is sought or contemplated on the ground that the claim has no reasonable prospect of success, the tribunal must first consider whether, on a careful consideration of all the available material, it can properly conclude that the claim has no reasonable prospect of success. The test is not whether the claim is likely to fail; nor is it a question of asking whether it is possible that the claim will fail.[61]In Cox v Adecco Group Uk & Ireland and ors [2021] ICR 1307, EAT the Employment Appeal Tribunal provided guidance for Tribunals in relation to strike out applications involving litigants in person. His Honour Judge James Taylor provided the following guidance. 28. From these cases a number of general propositions emerge, some generally well- understood, some not so much:(1) No-one gains by truly hopeless cases being pursued to a hearing;(2) Strike out is not prohibited in discrimination or whistleblowing cases; but especial care must be taken in such cases as it is very rarely appropriate;(3) If the question of whether a claim has reasonable prospect of success turns on factual issues that are disputed, it is highly unlikely that strike out will be appropriate;(4) The Claimant's case must ordinarily be taken at its highest;(5) It is necessary to consider, in reasonable detail, what the claims and issues are. Put bluntly, you can't decide whether a claim has reasonable prospects of success if you don't know what it is;(6) This does not necessarily require the agreement of a formal list of issues, although that may assist greatly, but does require a fair assessment of the claims and issues on the basis of the pleadings and any other documents in which the claimant seeks to set out the claim;(7) In the case of a litigant in person, the claim should not be ascertained only by requiring the claimant to explain it while under the stresses of a hearing; reasonable care must be taken to read the pleadings (including additional information) and any key documents in which the claimant sets out the case. When pushed by a judge to explain the claim, a litigant in person may become like a rabbit in the headlights and fail to explain the case they have set out in writing;(8) Respondents, particularly if legally represented, in accordance with their duties to assist the tribunal to comply with the overriding objective and not to take procedural advantage of litigants in person, should assist the tribunal to identify the documents in which the claim is set out, even if it may not be explicitly pleaded in a manner that would be expected of a lawyer;(9) If the claim would have reasonable prospects of success had it been properly pleaded, consideration should be given to the possibility of an amendment, subject to the usual test of balancing the justice of permitting or refusing the amendment, taking account of the relevant circumstances.”[62]I was mindful of that guidance, in particular nobody gains by truly hopeless cases being pursed to a hearing, especial care is required in discrimination cases, if factual issues are disputed, it is highly unlikely that strike out will be appropriate and the claimant’s case must be taken at its highest. Conclusion[63]The claimant clarified his sex discrimination claim and at its highest he asserts his dismissal was because of sex and he believes a hypothetical comparator would have been subject to different treatment. The respondent maintains he was dismissed for conduct. It is apparent the central facts regarding the claimant’s conduct are not in dispute, it is the procedure adopted by the respondent and the sanction the claimant complains about.[64]Furthermore, for the sex discrimination claim to have a reasonable prospect of success, the claimant would have to show ‘something more’ than the difference of treatment and the difference of sex as between him and his hypothetical comparator.[65]The respondent’s conduct the claimant relies on to establish a prima facie case of sex discrimination are matters that go to the reasonableness of his dismissal as opposed to the mind of the decision maker and there was an absence of any evidence or information that even suggested the respondent treated him differently than it would a hypothetical comparator in similar circumstances because of his sex.[66]Therefore, the sex discrimination claim has no reasonable prospect of success and it is struck out.