Ms K Taylor v Grampian Health Board and P Reid: 8000628/2025
JUDGMENT
[1]The Tribunal does not have jurisdiction to hear the claimant’s claim of constructive unfair dismissal since the claimant does not have sufficient qualifying service.[2]The claimant’s application to amend her claim is refused.[3]The claimant’s remaining claims of direct disability discrimination and discrimination arising from disability, and the claim of a failure to make reasonable adjustments and the claim of harassment related to disability shall proceed to a hearing.REASONS
[1]The claimant submitted a claim to the Tribunal following the termination of her employment with the respondent. The claimant made various claims in her ET1. The respondent submitted a response in which they denied these claims. The case has been subject to a degree of case management following which the claimant has submitted various documents stating to be further and better particulars of her claims and also seeking to amend her claims. The amendment is resisted by the respondent. In their ET3 the respondent also identified that they considered the Tribunal did not have jurisdiction to deal with the claimant’s claim of “ordinary” unfair constructive dismissal since the claimant did not have two years’ qualifying service. This was disputed by the claimant on the basis that there had been no interruption in her employment from the time she ended a previous employment contract with the respondent until she started on her final employment contract with them. A preliminary hearing was fixed in order to deal with the issue of whether or not to allow the claimant’s application to amend. Initially the parties had agreed that the issue of two years’ qualifying service be dealt with on the papers however in correspondence it was identified that it may also be appropriate to deal with this at the preliminary hearing. At the outset of the preliminary hearing both parties were agreed that I should make the decision on this issue based on the previous written representations of the parties and additional representations made during the course of the hearing. In advance of the preliminary hearing the respondents had lodged a helpful bundle of documents which is referred to by page number below. During the course of the hearing the claimant identified that she wished to refer to another document which had not been included in the bundle. The preliminary hearing was adjourned for a time so as to allow the claimant time to email this document to the Tribunal and the respondent. I shall simply refer to this as “additional document” in the discussion below. Procedural history[2]The claimant submitted her claim on 11 March 2025 having commenced early conciliation with the first respondent on 2 December 2024, the ACAS certificate being issued on 13 January 2025. Early conciliation was commenced against the second respondent on 26 February 2025 and the ACAS certificate issued on 26 February 2025.[3]Along with her claim form the claimant included a Paper Apart. At the commencement of this she indicated she was requesting an extension of time since she stated that despite her efforts she was unable to submit her claim within the three month time limit. She said that she had been waiting for a response from NHS Grampian for conclusion of the grievance and that she was finding it difficult to re-read some of the emails and reports from the respondents during that time. The Paper Apart is a lengthy document (page 18-24).[4]The case proceeded to a preliminary hearing and the note of this is contained at pages 86-95 of the bundle. With regard to the extent of the claim it was noted that disability status was contested and the claimant was to lodge a Disability Impact Statement together with medical evidence from her GP. It is as well to record that at the time of writing the Disability Impact Statement has been produced. The respondents have indicated that they are not prepared to make a decision on whether or not to concede disability status until they have received medical evidence however if the medical evidence does conform to the impact statement then it is likely that disability status would be conceded. It is noted in the PH note that the claimant was making claims of direct disability discrimination and that there were three particular incidents on which she was seeking to rely. The Tribunal also recorded that the claimant now wished to make a claim of direct sex discrimination however it was noted that sex discrimination was not foreshadowed in her claim form and that any complaint of sex discrimination could only be heard by her claim being amended to include them. The claimant was to confirm whether or not she wished to amend within a certain timescale. It was noted that the claimant alleged discrimination arising from disability and three particular incidents were relied upon. It was noted that the claimant had mentioned indirect discrimination but did not provide any details or allegations which could come under this heading. It was noted that the claimant alleged a failure to make reasonable adjustments and the background to this claim was set out. It was noted that the claimant wished to make a claim of harassment related to disability and six particular points of claim were set out albeit there was little by way of specification of dates and precisely what facts were being averred in support of this. It was also noted that the claimant stated she wanted to make a claim of victimisation under section 27 of the Act however at the hearing the claimant could not describe any event or events which might qualify as a protected act. Again the claimant was advised that if she wished to make such a claim then she would require to provide further detail since at present there were no factual averments which would support such a claim. It was also noted that the claimant now wished to make claims of unfair dismissal and constructive dismissal by reason of making protected disclosures. Once again the claimant was advised that since this claim was not foreshadowed in her ET1 she would require to apply to amend. There was also discussion regarding her constructive dismissal claim. Following this, the claimant provided further particulars on 29 May which are contained at pages 96- 112. This took the form of various comments made by the claimant on the preliminary hearing note. In receipt of this the respondents confirmed their position in respect of the two years’ service. The respondents then submitted a response to the claimant’s further document (pages 118-121). There followed another preliminary hearing which took place on 2 July before Judge Hosie. The note of this was lodged (pages 124-129). Judge Hosie issued a specific order to the claimant on 2 July 2025 that she answer various specific questions designed to tease out the necessary details of her claim. The claimant then submitted further particulars on 3 August 2025 and then subsequently on 15 August submitted a further set of documents which appeared to relate to an application to amend. The respondents objected to this application to amend however before this could be dealt with the claimant then submitted her final application to amend which was made on 11 September and took the form of a completely fresh claim form with a completely fresh Paper Apart. I understood the claimant’s current position to be that she wished her pleadings to refer to this document instead of her original claim document and the subsequent further particulars. Submissions of the parties – two years’ service[5]The claimant’s position was that she accepted that there was a two week gap between Sunday 31 March 2024 when her previous employment had terminated and Monday 15 April 2024 when her final employment commenced. It was her position however that she should be treated as being continuously employed from February 2022 when her previous employment had commenced. It was her position that this gap should be ignored for a number of reasons.(1) In submissions she had referred to a document which stated that her continuous service with the NHS was deemed to have commenced in 2022.(2) It was her position that she had remained in contact with the respondent over this period and had still been attending Occupational Health appointments arranged for this period.(3) It was the claimant’s position that the first and last weeks should be ignored on the basis that she had been covered by a contract on the Sunday of those weeks and that this left a gap of less than a week which in terms of the legislation could be ignored.(4) That the claimant had been appointed to her new role before the termination of her previous role albeit the start date was not until some two weeks after the previous role terminated.(5) During the two week period the claimant had carried out work for the first respondent as a bank porter. Respondents’ submissions[6]The respondents’ position was as set out in their submissions. In their view it was clear that there had been a two-week gap and that this had interrupted continuity of service. With regard to the point made by the claimant the document which was referred to dealt with deemed service and did not affect the statutory position under the Employment Rights Act. They provided a note of the policies of the respondent which were relevant for this purpose.[7]With regard to the point made they provided documentation which showed clearly that the claimant’s first term contract as NC Administrator ended on 31 March 2024 at the end of the fixed term period. They provided documents which confirmed that the claimant’s new employment relationship with the first respondent started on 15 April. They disputed the claimant’s assertion that for some reason the first and second weeks should be ignored on the basis the claimant had been working on Sunday 31 March and commenced work on Monday 15 March. They noted that the claimant had carried out work for the respondent working as a Porter on a bank basis during this time however they considered this to be irrelevant since working on bank the claimant was not an employee. Submissions on amendment - claimant[8]The claimant’s position was potentially two-fold. Her first position was that at the time she had submitted her ET3 she had done so in a rush and had not been aware of all of the appropriate legal rules. As the case had gone on her knowledge of the legal background had increased and she wished to correct her claim so as to refer to the correct legal principles. Her second position was that she had made a data subject access request and had obtained further information in August of 2025 which led her to believe that there was a direct link between the disclosures which she allegedly made during her first period of employment with the AAA service which terminated in March 2024. Essentially she referred to various emails which although redacted in form, were in her view, emails passing between her previous manager at the AAA service and her new manager. In her view this proved a linkage between the disclosures which she had previously made and what she considered to be the detriments and the events leading to her constructive unfair dismissal. The redacted emails are to be found at pages 271-272 and 276-281. The claimant also referred to an additional email which was not in the bundle but which was subsequently lodged as the additional document. The document was in fact a letter sent by the claimant’s manager to the claimant around 2 July. It was the claimant’s view that it was in the interests of justice for the amendment to be allowed. Respondents’ submissions[9]The respondents referred to the well-known Selkent principles. They set out the procedural history. It was clear that the claimant had been given various opportunities to provide further and better particulars of her claim and indeed had been urged at the outset that if she wished to amend she should do so. It was their position that there were various difficulties with the documents provided by the claimant. The claimant was at times referring to claims which were not only not in her ET1 but did not appear anywhere else. It was their view that with regard to the whistleblowing claim this was quite clearly time barred from the outset. The claimant had not commenced early conciliation until 2 December. She had not submitted her ET1 until March. The protected disclosures had been made in an employment which had ended one year previous to the submission of her ET1. The detriments in her previous employment which she referred to were quite clearly time barred. There was absolutely no good reason why the claimant should be allowed to submit these late. With regard to the additional claims the claim of sex discrimination had not been in the original ET1. There was no reason at all given for this. It could have been included. With regard to the claim of victimisation in relation to having made protected acts relating to a protected characteristic the situation was that even after the various attempts made by the claimant to provide additional specification of this there was still no claim which the Tribunal could adjudicate upon. The claimant had not set out any protected acts relating to a protected characteristic. With regard to the additional emails which the claimant had discovered following her DSAR request there was really nothing new in them. The claimant had submitted a grievance previously in which she had specifically referred to there having been correspondence between her previous manager and her new manager. Many of the documents which the claimant was seeking to rely on were in fact documents which had been sent to her at the time. It was the respondents’ position that the balance of prejudice in this case clearly favoured the respondents. If the amendment was allowed then the respondents would first of all require to request the Tribunal to press the claimant for additional specification of a substantial number of claims. Once that had been provided, if indeed it was, then the respondents would require to speak again to witnesses which would almost certainly lead to further delay. It was the respondents’ position that there were claims in the current pleadings which were capable of going to a hearing, there would be no major prejudice to the claimant if she was only permitted to make these claims, on the other hand there would be considerable prejudice to the respondents if the amendment was allowed. The respondents had already faced considerable expense in this case having spent time and effort dealing with the claimant’s original further particulars of claim and this would be entirely wasted if the claimant was permitted to abandon her previous pleadings and proceed with the new document. Discussion and decision[10]As noted above the issues to be decided in this case were first of all whether the claimant’s claim of ordinary constructive unfair dismissal could proceed or whether the Tribunal had no jurisdiction to deal with it on the basis of lack of qualifying service and secondly, whether or not the claimant’s application to amend should be allowed. Two years’ service[11]There appeared to be a significant degree of agreement between the parties on the relevant factual background. The claimant’s engagement commenced on Monday 15 April 2024. Her previous engagement had ended on 31 March 2024. The claimant’s employment with the respondent terminated on 12 December 2024 which means quite clearly that she did not have two years’ qualifying service unless her service under the earlier contract of employment was counted. The issue of continuous employment is dealt with in Part XIV of the Employment Rights Act. Section 211 of the Act states:- “An employee’s period of continuous employment for the purposes of any provision of this Act—(a) subject to subsection (3) begins with the day on which the employee starts work, and(b) ends with the day by reference to which the length of the employee’s period of continuous employment is to be ascertained for the purposes of this provision.” …….. (3) If an employee’s period of continuous employment includes one or more periods which by virtue of section 215, 216 or 217 while not counting in computing the length of the period do not break continuity of employment, the beginning of the period shall be treated as postponed by the number of days falling within that intervening period, or the aggregate number of days falling within those periods, calculated in accordance with the section in question.”[12]Section 212 states:- “(1) Any week during the whole or part of which an employee’s relations with his employer are governed by a contract of employment counts in computing the employee’s period of employment.”[13]Section 235 of the Employment Rights Act is an interpretation section and defines a week as being “(a) In Chapter I of this part means a week ending with Saturday, and (b) otherwise except in sections 27C, 75F, 75H, 80A, 80B, 80EA, 80EF, 81G(2) and (3) and 86 means in relation to where an employee’s remuneration is calculated weekly by a week ending with the day other than Saturday a week ending on that other day and in relation to any other employee a week ending with Saturday.”[14]In this case I am required to look at each of the weeks over the relevant period. In the week ending on Saturday 6 April then it is at least arguable that the claimant’s relationship with the respondent was governed by a contract of employment in that her contract extended up to and including Sunday 31 March. In the week ending 13 April it is clear that during no part of that week was the claimant’s relations with the respondent governed by a contract of employment. In the week ending Sunday 21 April it would appear that the claimant’s relations with the respondent was governed by a contract of employment since she started her new employment on 15 April. Applying section 212 my view is that there was a definite gap in employment. The claimant did appear to argue at times that this should be disregarded because she was ill over this period however it is absolutely clear from the documentation that the terms of section 212(3) would not apply since she was not absent because she was incapable of work in consequence of an injury but because her contract of employment had ended. It would also appear she was working on the bank over this period so any suggestion that she was unable to work due to illness does not appear to be founded in fact. For these reasons my view is that the claimant does not have two years’ continuous service and accordingly her claim of unfair constructive dismissal cannot proceed.[15]On the issue of amendment it appeared to me that the claimant had been genuinely trying to assist the Tribunal by providing detail of her claim however looking at the documents it is clear that she is not assisting either herself or the Tribunal by continuing to attempt to add new claims. This case has not reached a hearing and the Tribunal file already consists of more than 450 pages. There are a number of heads of claim mentioned by the claimant which are clearly not relevant to the facts which she has pled. There are others which might potentially be relevant such as the claim for whistleblowing and the claim for sex discrimination. With regard to the whistleblowing claim I agree with the respondents’ representative that the part of that claim which is relevant to her previous employment is time barred and that it would be entirely inappropriate for the Tribunal to seek to extend its jurisdiction so as to cover this. There would be absolutely no reason for this. The claimant had been aware of these claims and did not choose to make them at the time. With regard to the claim of sex discrimination the claimant gave no reason as to why this was not included in the original ET1 other than that she was in a hurry and was unaware of Tribunal process. With regard to the claim of victimisation, during the hearing the claimant clearly stated that the act she was relying on as the protected act was the same for her whistleblowing claim which was in relation to members of the AAA team carrying out various acts which related to patients. There was no suggestion that any protected act which related to a protected characteristic. Looking at matters in the round it is clear from the procedural history that the tribunal did a great deal of work in case managing the case with the claimant following her original submission. AS a result of the various orders which were made there is now a case which is capable of going to a hearing. The claimant’s latest amendment basically seeks to negate that work and start afresh with an entirely new ET1. This document does not provide sufficient detail of the claims and if the amendment is allowed the tribunal will effectively have to start again in case managing the case so as to get the pleadings into a state where a hearing can take place.[16]I am required to look at the balance of prejudice in this case. If the amendment is not allowed the claimant will not be permitted to raise claims which she clearly feels she has against the respondent. On the other hand the claimant still has claims which after considerable work by the various employment judges involved are now reasonably well specified and capable of proceeding straight to a hearing that is the claims of direct disability discrimination, discrimination arising from disability and a failure to make reasonable adjustments. I consider that there would be considerable prejudice to the respondent if the claimant’s amendment was allowed. As it stands the amendment is not really capable of proceeding to a hearing. I agree with the respondents’ representative that further work would require to be done on this so as to establish exactly what the claimant’s extended claims are. This will involve the respondent in considerable further work and expense. There may of course be cases where the interests of justice require this to be done. The fact that the parties and the respondent would be put to the expense of repeating the work already done would not outweigh a situation where there was a genuine and pressing reason why the amendment should be permitted, but that is not the case here. I would agree with the respondent that the balance of prejudice favours refusing the amendment. In all the circumstances of the case I considered that the appropriate course of action was to refuse to accept the amendment. The case will proceed in respect of the claims already clearly identified. The respondents’ representative very fairly conceded that during the course of the hearing of these claims the claimant may well wish to refer to certain additional specification of these claims which are set out in her amendment document as background information and indeed there is absolutely no reason why she would not be permitted to do so on the basis of the pleadings as they stand given the latitude normally permitted to claimants in cases involving discrimination.