Mr M McGuile-Probyn v Superdrug Stores plc: 6016792/2025
EMPLOYMENT TRIBUNALS
Case No 6016792/2025
Between
Mr R. Holland (Counsel)ClaimantMr J. McHugh (Counsel) Having examined a bundle of documents, and having heard the Claimant describe his medication regime –Respondent
Before
Employment Judge SmailMr R. Holland (instructed by Counsel) for claimantMr J. McHugh (instructed by Counsel) for respondentDate 19 April 2026
JUDGMENT
[1]It is not disputed that the Claimant was disabled with depression from 2008, and with depression and anxiety from 2021, continuing to the present day.[2]He was therefore disabled at all material times for the purposes of this claim.[3]The Claimant seeks determination of no further alleged disability. 17 March 2026
REASONS
[1]The Claimant seeks to amend his claim in terms the draft list of issues at Appendix 1. It is agreed that the amendment is sensibly made in the form of a list of issues. That highlighted in yellow is said to be agreed by way of amendment. Where victimisation is mentioned in the Claimant’s draft Appendix 1 there was a reference to protected disclosures rather than protected acts. I have deleted that bit because the Claimant is not seeking to add claims of protected disclosures (whistleblowing), as I understand it. In any event I would not have granted an amendment to add a claim of whistleblowing. It is difficult to see how the Claimant might reasonably regard he was raising the public interest when the claims were about the treatment of him. A whistleblowing claim was neither intimated in the original claim form and surrounding documents nor in the Claimant’s grievance. Accordingly, I focus on the rest.[2]The Claimant presented a claim form on 8 May 2025. The ACAS dates are 9 April to 8 May 2025. He was employed by the Respondent between 4 April 2015 and 5 August 2025 when he resigned. He was a store manager.[3]The claim form included claims of disability, sex, sexual orientation discrimination and unfair dismissal. In the grounds of claim the overview summary alleged that the Area Manager had pursued a sustained pattern of behaviour causing an untenable working environment leading to mental health issues. A list of key allegations was set out. A full Response was entered on 9 July 2025.[4]The key allegations were set out as follows: KEY ALLEGATIONS Discrimination and Harassment:• Inappropriate comments regarding my sexual orientation ("Yeah you're not going to walk up to him on the first day and go Hi I am Mal, I'm gay")• Systematic exclusion from team activities and events• Pattern of derogatory comments including repeatedly conveying that colleagues thought I was "a dick"• Insensitive remarks during family bereavements ("the grim reaper has come to get you this year")• False accusations of theft following stock discrepancy Breach of Duty of Care:• Failure to implement reasonable adjustments despite medical recommendations• Refusal to refer to Occupational Health during declining mental health• Denial of flexible working despite caring responsibilities• Threatening disciplinary action for legitimate sickness absences• Refusing to classify family tragedy as "exceptional circumstance" for sick pay purposes Contractual and Equality Issues:• Sudden enforcement of 90-minute breaks after ten years without this requirement• Arbitrary withholding of pay rises while colleagues received increases• Systematic obstruction of career progression despite excellent performance ratings• Threatening communications regarding break enforcement Impact:• Clinically diagnosed work-related stress requiring medication• Severe anxiety, panic attacks, and depression• Physical symptoms including insomnia, migraines, and hypertension• Significant deterioration in self-confidence and quality of life LEGAL FRAMEWORK The allegations engage multiple legal protections including the Equality Act 2010, Employment Rights Act 1996, Health and Safety at Work Act 1974, Protection from Harassment Act 1997, and Data Protection Act 2018. CONSTRUCTIVE DISMISSAL The cumulative effect of these breaches constitutes a fundamental breach of the implied term of mutual trust and confidence, meeting the threshold for constructive dismissal as established in Malik v BCCI [1997] and Western Excavating v Sharp [1978]. REMEDY SOUGHT I request a full investigation, access to employment documentation, clarification on CCTV usage, investigation into pay disparities, implementation of reasonable adjustments, and consideration of compensation for injury to feelings as established in Vento v Chief Constable of West Yorkshire Police [2002]. Many of the allegations are general and non-specific, making an amendment application unsurprising.
LEGAL FRAMEWORK
[5]A disability impact statement was provided in advance of the first Preliminary Hearing which took place on 8 January 2026. At that Preliminary Hearing before Employment Judge Dawson, agreed directions were made for the filing of an agreed list of issues in advance of the next Preliminary Hearing.[6]On 29 January 2026 the Claimant made an application to amend his claim. It contained allegations of victimisation, failure to make reasonable adjustments and sexual orientation discrimination. The amendment was objected to not wholly but in significant part.[7]The matter came before Employment Judge Hastie on 9 February 2026 who listed the present hearing. At that hearing claims of sex discrimination and harassment were withdrawn. One issue for this hearing was whether the Claimant was a disabled person. That has now been resolved as have the directions bringing the matter to a final hearing. The amendment and therefore the list of issues are the outstanding matters.[8]The Claimant, represented by Mr Holland, has refined his amendment in accordance with Appendix 1 hereto. I acknowledge that some steps have been taken to simplify the matter as well as add to matters from the original grounds of complaint. Additions to the original application to amend have been set out in bold. Mr Holland has sought to set out once and for all the claim the Claimant wishes to make. That is a useful and necessary exercise. 8. Mr Holland has also put before me the Claimant’s internal grievance dated 16 April 2025. It is an extensive and comprehensive document setting out the types of allegation the Claimant wishes to pursue in these proceedings. Sections included those concerning an alleged pattern of coercive and controlling behaviour; sexual orientation discrimination; bullying and victimisation following previous complaints; failure to implement reasonable adjustments; break enforcement; pay discrimination and career obstruction. The grievance document intimated a constructive dismissal but was sent before the Claimant resigned in the hope that he would not have to resign. The grievance was not successful in preventing the Claimant’s resignation. It seems that the Respondent was aware of detailed issues raised by the Claimant before these proceedings were brought. The discretion to permit amendment[9]The Respondent submits that the amendment application seeks to admit new causes of action which are brought out-of-time and so should not be permitted. That a claim is sought to be admitted out-of-time is certainly a factor to be taken into account in the discretion whether or not to allow the amendment; but the issue remains the balance of justice. Time limits are not a trump card held by a Respondent. Important guidance on this issue is provided by HHJ Tayler in Vaughan v Modality Partnership UKEAT/0147/20/BA(V) (9 November 2020). He said the following in seeking to summarise the guidance:21. Underhill LJ focused on the practical consequences of allowing an amendment. Such a practical approach should underlie the entire balancing exercise. Representatives would be well advised to start by considering, possibly putting the Selkent factors to one side for a moment, what will be the real 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. This requires a focus on reality rather than assumptions. It requires representatives to take instructions, where possible, about matters such as whether witnesses remember the events and/or have records relevant to the matters raised in the proposed amendment. Representatives have a duty to advance arguments about prejudice on the basis instructions rather than supposition. They should not allege prejudice that does not really exist. It will often be appropriate to consent to an amendment that causes no real prejudice. This will save time and money and allow the parties and tribunal to get on with the job of determining the claim.22. Refusal of an amendment will self-evidently always cause some perceived prejudice to the person applying to amend. They will have been refused permission to do something that they wanted to do, presumably for what they thought was a good reason. Submissions in favour of an application to amend should not rely only on the fact that a refusal will mean that the applying party does not get what they want; the real question is will they be prevented from getting what they need. This requires an explanation of why the amendment is of practical importance because, for example, it is necessary to advance an important part of a claim or defence. This is not a risk-free exercise as it potentially exposes a weakness in a claim or defence that might be exploited if the application is refused. That is why it is always much better to get pleadings right in the first place, rather than having to seek a discretionary amendment later.23. As every employment lawyer knows the Selkent factors are: the nature of the amendment, the applicability of time limits and the timing and manner of the application. The examples were given to assist in conducting the fundamental balancing exercise. They are not the only factors that may be relevant.24. It is also important to consider the Selkent factors in the context of the balance of justice. For example: 24.1. A minor amendment may correct an error that could cause a claimant great prejudice if the amendment were refused because a vital component of a claim would be missing. 24.2. An amendment may result in the respondent suffering prejudice because they have to face a cause of action that would have been dismissed as out of time had it been brought as a new claim. 24.3. A late amendment may cause prejudice to the respondent because it is more difficult to respond to and results in unnecessary wasted costs.25. No one factor is likely to be decisive. The balance of justice is always key.26. Rather like Charles Darwin who, when pondering matrimony, wrote out the pros and cons, there is something to be said for a list. It may be helpful, metaphorically at least, to note any injustice that will be caused by allowing the amendment in one column and by refusing it in the other. A balancing exercise always requires express consideration of both sides of the ledger, both quantitively and qualitatively. It is not merely a question of the number of factors, but of their relative and cumulative significance in the overall balance of justice.27. Where the prejudice of allowing an amendment is additional expense, consideration should generally be given as to whether the prejudice can be ameliorated by an award of costs, provided that the other party will be able to meet it.28. An amendment that would have been avoided had more care been taken when the claim or response was pleaded is an annoyance, unnecessarily taking up limited tribunal time and resulting in additional cost; but while maintenance of discipline in tribunal proceedings and avoiding unnecessary expense are relevant considerations, the key factor remains the balance of justice.[10]In arriving at that position, HHJ Tayler cited Underhill LJ in Abercrombie and others v Aga Rangemaster Ltd [2014] ICR 209 (CA).Underhill LJ referred to Selkent, at paragraph 47: If the final sentence of point (5) (a) is taken in isolation it could be understood as an indication that the fact that a pleading introduces "a new cause of action" would of itself weigh heavily against amendment. However, it is clear from the passage as a whole that Mummery J was not advocating so formalistic an approach. He refers to "the … substitution of other labels for facts already pleaded" as an example of the kind of case where (other things being equal) amendment should readily be permitted – the contrast being with "the making of entirely new factual allegations which change the basis of the existing claim". (It is perhaps worth emphasising that head (5) of Mummery J's guidance in Selkent was not intended as prescribing some kind of a tick-box exercise. As he makes clear, it is simply a discussion of the kinds of factors which are likely to be relevant in striking the balance which he identifies under head (4). Consistently with that way of putting it, the approach of both the EAT and this Court in considering applications to amend which arguably raise new causes of action has been 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 enquiry 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. It is thus well recognised that in cases where the effect of a proposed amendment is simply to put a different legal label on facts which are already pleaded permission will normally be granted: see the discussion in Harvey on Industrial Relations and Employment Law para. 312.01-03. We were referred by way of example to my decision in Transport and General Workers Union v Safeway Stores Ltd (UKEAT/0092/07), in which the claimants were permitted to add a claim by a trade union for breach of the collective consultation obligations under section 189 of the Trade Union and Labour Relations (Consolidation) Act 1992 to what had been pleaded only as a claim for unfair dismissal by individual employees. (That case in fact probably went beyond "mere relabelling" – as do others which are indeed more authoritative examples, such as British Printing Corporation (North) Ltd v Kelly (above), where this Court permitted an amendment to substitute a claim for unfair dismissal for a claim initially pleaded as a claim for redundancy payments.) Decision on this application[11]I grant permission to amend in the claim of constructive unfair dismissal as set out by Mr Holland. Constructive dismissal was intimated by the grievance and mentioned in the original claim form even if the Claimant had not actually resigned by then. The claim is confirmed by the amendment. The matters said to amount to breaches of the implied term of trust and confidence relate to 2024 and 2025. They are thus relatively contemporaneous and many were the subject of the grievance. The Respondent can deal with them evidentially and is not materially prejudiced. The Claimant would be genuinely disadvantage if he could not pursue the claims he wishes to bring.[12]Similarly, reasonable adjustments claims were intimated by the original grounds of claim and the grievance. The Respondent can deal with them evidentially and is not materially prejudiced. I grant permission. The Claimant would be genuinely disadvantage if he could not pursue the claims he wishes to bring.[13]Similarly, the allegations of direct sexual orientation discrimination, most of which the Respondent does not object to. The Respondent can deal with them evidentially and is not materially prejudiced. I grant permission. The Claimant would be genuinely disadvantage if he could not pursue the claims he wishes to bring.[14]As to the victimisation claim: this was intimated in the internal grievance. The detriments relied upon are mostly repeats of allegations already made. This is predominantly a re-labelling exercise in terms of the detriments alleged. I see no point, however, in relying on protected acts pre-2023. The detriments alleged are 2024 and 2025, Accordingly, I do not give permission to rely upon any alleged protected act pre-2023. The Respondent can deal with these allegations evidentially and is not materially prejudiced. The Claimant would be genuinely disadvantage if he could not pursue these claims he wishes to bring. I grant permission for the victimisation claim.[15]As to the discrimination arising from disability claim, I agree with Mr McHugh that these are inadequately pleaded. For example, what is the ‘something arising from disability’? The Claimant has his failure to make reasonable adjustments claim. He has always intimated that. I refuse permission to bring claims under s.15 of the Equality Act 2010. They are inadequately pleaded and incoherent.[16]Accordingly, I give permission to the claimant to argue the claims set out at Appendix 2.