Miss M Shields v Commissioners for HM Revenue and Customs: 8000737/2025

EMPLOYMENT TRIBUNALS (SCOTLAND)

Case No 8000737/2025

Venue Edinburgh by CVP

Hearing 1 and 29 September 2025

Between

Miss M ShieldsClaimant

Commissioners for HM Revenue & CustomsRespondent

Before

Employment Judge J M Hendry

Ms C McDairmant (instructed by Solicitor) for respondent

Date 27 November 2025

JUDGMENT

(One) The Tribunal makes an Order under Section 49(1) of the Employment Tribunal Rules of Procedure 2024 restricting the public disclosure of the claimant’s medical history and health conditions. (Two) The Tribunal exercises its discretion in favour of the claimant to allow the claims for disability discrimination contained in the ET1 to proceed although late. (Three) The Tribunal allows the claimant’s amendment to add claims under Sections 13,15,19 and 20 of the Equality Act 2010 excepting therefrom claims under Section 27 of the Equality Act and claims for breaches of the ACAS Code.

REASONS

[1]In her ET1 the claimant made claims for disability discrimination. The core complaint was that she had been excluded from applying for a promoted post because she was a home worker. The respondents argued that the claims were misconceived and in any event out of time.

[2]A case management hearing took place on the 3 June 2025. The claims at that point had been identified as claims of discrimination arising from disability under s15 of the Equality Act 2010 and claims of failure to make reasonable adjustments under s20 and 21 of the Equality Act 2010. Disability status was not conceded at that point but has since been conceded.

[3]The claimant was advised that she would have to amend her ET1 if she wanted to raise the additional claims that she had referred to in her Agenda document.

[4]The claimant applied on the 6 June 2025 for more time within which to amend her claim. An extension was granted and the amendment lodged on the 8 July. The claimant wanted to advance claims under Section 13 (Direct Discrimination), Section 19 (Indirect Discrimination), Section 15 (Discrimination arising from disability), Section 20 (Failure to make reasonable adjustments) and Section 27 (Victimisation following the making of a protected Act).

[5]The claimant also made an application on 9 June 2025 for her medical history to be restricted from public disclosure and an order granted under Rule 50. She later requested anonymity. Hearing

[6]An open preliminary hearing took place on 1 September 2025. Parties had helpfully prepared a draft list of issues for the open preliminary hearing which was of considerable assistance. I will not repeat its contents here.

[7]The matters that had to be addressed were as follows: 1. The claimant’s application for a restricted reporting/an anonymity order; 2. The claimant’s amendment; 3. The issue of time-bar in relation both to the allegations in the ET1 and in the amendment and 4. General case management matters.

[8]Parties had lodged an Index of Documents. The respondent’s agents had also set out their submissions in relation to the amendment and time bar in correspondence dated 29 June.

[9]In relation to the issues of time bar Ms Shields gave evidence about the background to her claims and the steps she had taken to seek assistance and advice. Ms McDairmant then cross-examined her. The claimant in her evidence indicated that she had records of the contacts she had made both with ACAS and her Trade Union. These were potentially relevant so in these circumstances, I considered that it was in accordance with the overriding objective, particularly as the claimant was a party litigant to adjourn the hearing to another date to allow the claimant to produce this information which was not contained in the joint bundle lodged prior to the hearing.

[10]The respondent’s agent did not object to this course of action. A further hearing took place on the 29 September. This allowed the claimant to lodge documents supporting her position and which she had referred to in evidence. This she did together with further submissions. Ms McDiarment then crossexamined the claimant and parties made further submissions.

[11]It should be recorded that at the outset of the second hearing the respondent’s agent advised that the claimant’s disability status had been accepted. There was also no objection to the claimant’s application for a Restricted Reporting Order in relation to her medical history. I explained to the claimant that given that disability status was accepted there might not be any requirement to mention her medical history in subsequent hearings but that I would nevertheless grant the application as her health conditions were possibly relevant to the late lodging of the claims and would be discussed today.

[12]I was not convinced that, having due regard to the need for public justice, that anonymity was justified to protect the claimant. There should be no need to discuss historic events that have impacted on her and any reference to her health conditions now that disability status has been accepted is unlikely. To be fair to the claimant the focus was on medical matters but having re-read the various reports including that of Mr Kerr and her GP if she still believes that such an order can be justified she can apply prior to any final hearing with such additional or updated medical evidence that she believes would justify a wider order to include anonymity. Amendment/Time Bar

[13]We now turn to the principal issues which revolved around time bar. The claimant gave evidence. Much of the background was not in dispute and the focus was on how and when she came to raise proceedings and the timing of her amendment. I will set out the claimant’s position in evidence. General background/Claimant’s evidence

[14]The claimant works with HMCR and has done so for many years. At the time of the Covid pandemic she became a home worker and retained that status because of her various health conditions. She worked part-time.

[15]The claimant became highly specialised in the work she did particularly in relation to “DAS” (Debt Arrangement Schemes). The claimant asserts that much of this work would have been usually carried out by someone of a grade above hers. The claimant was line managed by a Mr Peter Curry and was instructed to do the DAS work by a Miss Gilvear a manager in the technical team dealing with these matters.

[16]The claimant had made it clear to Miss Gilvear for some years that she wanted to apply for promotion and continue with insolvency work. She enjoyed the work and found it rewarding. The claimant waited for an opportunity to seek promotion.

[17]The claimant was unaware that she was ineligible to move from being a home worker to a higher grade post or that she was barred from applying for a higher grade post because she was a home worker. The claimant had been allowed to become a home worker because of her disabilities. She explained that despite her various health conditions she was able to attend her place of work if necessary and able to appear in court proceedings (which she said she had done in the past). The claimant advised that she had been given a home working contract some years ago but was only formally issued with it in 2025. Opportunity for Promotion/HOE post

[18]In February 2024 there was an advertisement for a HOE post to join the Insolvency team. This was advertised as a general post. The claimant understood that it was to replace a team member and was not a post she was interested in. There was according to the claimant no suggestion that the successful candidate take over DAS work.

[19]In June the claimant had spoken to Miss Gilvear. She narrated events in her ET1 thus: ‘‘During another telephone meeting between Karen and I on 14 June 2024, I raised the subject again. This time I specifically asked whether there was any possibility of me even being eligible to get temporary promotion to HEO due to the amount of HEO work that I was consistently doing for Karen and providing HEO level technical support to my colleagues. Unfortunately, the response I received from Karen stunned me. She said ‘I’m really sorry, but we already have two people on the reserve list from the previous HEO Tech advert’’.

[20]It was only in June that it had become apparent to her that the person to be employed in the new HOE post would be a case worker who would be given DAS work that she had been doing.

[21]The claimant was upset to learn from Miss Gilvear that this had always been management’s intention when the person was recruited for the HOE postholder to take over the DAS work. The claimant was told that because of the recruitment there were no places on the team for the claimant and in addition there were two reserve candidates identified at the recruitment in February who would take precedence over her.

[22]The claimant’s complaint was that despite expressing an interest in promotion and carrying out the higher level work she had been excluded. Her position was that she could have carried out the HOE post (which she said can be part-time post) and wanted to continue with the DAS work she was not told of the vacancy or asked if she wanted to apply. In addition, the claimant was not advised that the person recruited would begin taking over her work. She was given no opportunity to apply for the promoted position or the reserve positions.

[23]The claimant complained about these matters and raised a grievance on the 29 September 2024. She pointed out that in May of that year she had been assured by Miss Gilvear that she was “still trying to get her a promoted post”. It was only on 14 June she was told specifically that as a home worker she would be ineligible.

[24]The claimant was unsuccessful in her grievance process and subsequently appealed its outcome. The grievance had been dealt with by Linda Cooper, a grade 7 office manager. The process was lengthy and time consuming. The grievance was finally rejected in June 2025.

[25]The claimant had sought the assistance of her Trade Union the PTS union and was put in touch with Robin Paul, an internal Trade Union Shop Steward who agreed to assist her. The claimant has no experience in Employment Tribunal matters or knowledge of employment law. She was unaware of any time limits that applied to proceedings. She knew that her Trade Union had access to lawyers and felt reassured that her Union was acting for her.

[26]In about October Mr Paul suggested to her that there should be an application to ACAS. She was unaware what ACAS was. She was reassured by him that there was no urgency in taking matters further because she was complaining about a “policy” which was a continuing state of affairs and that time limits did not apply. The claimant understood that if matters could not be resolved with her employer she might have to raise employment tribunal proceedings. She placed confidence in the advice of Mr Paul that time limits did not apply or at least not at this point. Early Conciliation was sought on the 10 October 2024.

[27]The claimant recorded her interactions with the Trade Union. She had received the ACAS certificate and passed it to the Trade Union. She was told that in turn they would pass it to their legal advisers. There had been numerous delays in the grievance process including being told that her personnel file, which would have shown appraisals and the work she was doing on DAS, had been destroyed. She pressed the Union for progress.

[28]During this period the claimant found the grievance and appeal process very stressful and this had impacted her various health conditions which were exacerbated by stress. The considerable delays in concluding the grievance continued to have an adverse effect on her health and mental wellbeing.

[29]On the 18 February 2025 the claimant was told during a telephone conversation with Robin Paul that he hadn’t in fact made any submission to PCS Legal as he had claimed. The claimant was extremely angry. He apologised and promised that he would get the submission done and she requested that she should be copied into emails.

[30]The claimant had already been advised that there were no other available PCS Union Reps within Edinburgh who could assist, so felt she had no option but to allow him to submit the papers.

[31]By the 21 February no copy of any email correspondence had been received, so she emailed again to check if he had made contact with PCS Legal. She had not been copied into any correspondence. Once more she discovered that the form had not been submitted. Mr Paul said he needed some more information from her.

[32]On the 21 February she had received an email from Robin Paul attaching a PCU1 Form for completion. The claimant completed the form and she received an email from him advising that he was submitting the PCU1. By the 24 February she was told about a further delay in submitting the form but that he would send it ‘‘today’’. Later that day he said it would be ‘‘Tuesday’’.

[33]On the 27 February the claimant made contact with ACAS. During this call she explained the circumstances of the case and the issues she was experiencing with her Trade Union. She was told that there were no current proceedings. She asked if she was missing any deadlines. She was told that she should “just submit the form as soon as you can”. The Adviser made no mention of having missed any specific deadline.

[34]The claimant’s internal appeal was still continuing. The claimant decided to contact her Union directly which she did and discovered that Mr Paul was absent from work because of illness. Thereafter she was in contact with a Mr Napier, a Trade Union Steward who began assisting her in the absence of Mr Paul with submitting an application for assistance. Health and Personal Factors

[35]During the period from early 2025 the claimant suffered poor health and a number of personal problems which preoccupied her. Early in the year her mother underwent an operation with a lengthy recovery period of six weeks during which the claimant was her sole carer. The claimant found this period particularly stressful. She suffered from migraines but did not take any time off work. The caring responsibilities were time consuming.

[36]On or about the 8 March 2025 the claimant’s mother had a serious fall and again had to undergo an operation. Once more following her discharge on the 12 March the claimant had to act as her carer. She had to shop, cook and clean for her. She had some assistance from her fiancée. This put a strain on her physical and mental health. Lodging of Claim

[37]The claimant had become frustrated by the delays in dealing with her grievance/appeal and the lack of contact from her trade union or lawyers. She repeatedly contacted her TU reps to try and get the legal assistance application form completed. In emails from them she was not told about any applicable time limits.

[38]The claimant finally concluded that she was getting nowhere she went to the Tribunal website and drafted an ET1 herself and lodged it on the 24 March 2025. Her complaint was for disability discrimination based on ‘‘the decision to exclude me as a contractual homeworker from being able to apply for promotion…’’

[39]The claimant contacted Mr Napier on the 27 March asking how to contact the PCS legal department direct as she had heard nothing from them. This she did and later became aware that no application had been processed.

[40]The rejection of the claimant’s grievance appeal was intimated to her on the 3 June 2025. Submissions

[41]At the close of the hearing parties were invited to make submissions. The Tribunal already had written submission from the respondent and a response to these from the claimant. The latter showed that she had engaged with the issue and had carried out research into the discretionary power available to the Tribunal to allow late claims under Section 123 of the EA and the legal guidance available to Tribunals when considering amendment in the face of a time barred allegation. Claimant’s Submissions

[42]The claimant had made submissions in her application to amend.

[43]At the close of the hearing the claimant indicated that she had documents confirming dates of her mother’s illness and hospital appointments and she was asked to submit these. Then she wrote asking for an opportunity to explain that she had experienced a particular form of ill-health which she felt unable to disclose at the hearing. She summarised her position that her various health conditions alone justified an extension of time on Just and Equitable grounds. The procedural delays by the respondent in dealing with her internal grievance directly harmed her ability to address matters as the long delays had a considerable impact on her mental and physical health. She had tried to resolve matters internally. The Tribunal also acknowledged the difficulty in this case in establishing the date on which the 3-month time limit should apply from. It was her understanding that the 3-month deadline related to the last act of discrimination, not the first act. Respondent’s Submissions

[44]Ms McDairmant had lodged submissions when objecting to the amendment. In those she had referred the Tribunal to the tests the Tribunal had to apply. These were new matters. The amendment sought to expand the factual position from that set out in the ET1.

[45]The Tribunal had to ‘‘consider any injustice or hardship which may be caused to any of the parties… if the proposed amendment were allowed, or as the case may be, refused’’ (Cocking v Sandhurst (Stationers) Ltd

[1974] ICR 650

). She also made reference to the case of Selkent Bus Company Ltd v Moore [1996] IRLR and the various factors suggested there such as the nature of the amendment and applicability of time limits. 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. She also referred to passages in Abercrombie v Aga Rangemaster Ltd

[2013] EWCA Civ 1148

) and Kuznetsov v Royal Bank of Scotland

[2017] EWCA Civ 43

. The later case reiterated the need to take into account of all the circumstances to balance the injustice and hardship of allowing an amendment against the injustice and hardship of refusing it.

[46]The case of Chaudhry v Cerberus Security and Monitoring Services Ltd

[2022] EAT 172

, the EAT suggested a two-point checklist that Employment Judges might find helpful when considering applications to amend:(a) identify the amendment sought, which should be in writing and

(b) balance the injustice and/or hardship of allowing or refusing the amendment, taking into account all the relevant factors, including, to the extent appropriate, those referred in Selkent. The case of MacFarlane v Commissioner of Police of Metropolis

[2023] EAT 111

, the EAT noted that Selkent remained a clear guide on the relevant factors Tribunals should take into account, subject always to the overarching principle that the Tribunal must take into account of all the circumstances and should balance the injustice and hardship of allowing the amendment against the injustice of refusing it. It held that, in assessing the balance of hardship which may be caused to the parties if the proposed amendment were allowed, the Employment Judge was entitled to have regard to whether the claim the claimant was seeking to add had reasonable prospects of success. The Tribunal should also bear in mind the overriding objectives of the Tribunal such as ensuring that the parties are on an equal footing and dealing with a case in ways which are proportionate to the complexity and importance of the issues and so forth.

[47]The respondent’s position was that the fact that these matters are out of time to be the strongest argument for not granting the amendment.

[48]The claimant is still employed by the respondent. She notified Acas on 10 October 2024 (Day A) and the certificate was issued on 12 November 2024 (Day B). The last date on which a claim could have been presented in time was 12 December 2024. The amendment is brought outwith the statutory time limit by almost 8 months.

[49]The Employment Appeal Tribunal in Scotland in the case of Amey Services Ltd and another v Alridge and Othrs

UKEATS/0007/16

held that ‘[a] determination on the grant or refusal of an amendment is a single stage exercise. Once the tribunal allows the amendment the new claim is subject to the jurisdiction of the tribunal and a substantive decision will be made on the claims made within it’ (paragraph 22). The decision in Amey followed that of Rawson v Doncaster NHS Primary Care Trust

UKEAT/0022/08

paragraph 14 ‘[t]he effect of an amendment is to backdate the new claim to the date on which the original claim form is presented. Once the amendment is granted, the respondent is thereafter prevented from raising the limitation defence.’

[50]On that basis, if the claimant’s claims under s.13, s.19 and s.27 of the Equality Act 2010 are permitted by way of amendment, the respondent will likely be barred from raising the limitation defence. As above, the claim has been raised outside the statutory time limits. The respondent submits that the claimant has failed to provide any information from which the Tribunal could conclude that it would be just and equitable to extend time and submits that it would not be just and equitable to do so. The Tribunal should also be aware of the conflicting authority of Galilee v Commissioner of Police of the Metropolis

UKEAT/0207/15

where the Employment Appeal Tribunal considered that a Tribunal can make an amendment subject to limitation. Therefore, although that may be an option which would allow the respondent to advance a limitation point, this would be prejudicial to the respondent given the preparation and cost of a time-bar hearing.

[51]The respondent’s solicitor then considered the nature of the amendment and the factual background against which it was lodged. The ET1 does not make clear any claim for discrimination or adjustments or victimisation.

[52]The nature of the amendment is, therefore, not a re-labelling of facts already pled. This was a case she suggested there are entirely new factual allegations and pleading new causes of action. For example, but not limited to the claimant asserting that Ms Peters failed to fully investigate her complaint and asserts this was an act of direct discrimination. The claimant has also included new factual allegations under her current claims of failure to make reasonable adjustments and discrimination arising from disability claims. She has also brought new factual allegations against Linda Peters and Helen Webb. This would lead to further evidence being required which would lengthen a final hearing and require the respondent to call additional witnesses that they would not require to call for the current claims of discrimination arising from disability and a failure to make reasonable adjustments. Given that this cause of action would bring a different legal test for consideration, the respondent would require to spend considerable time and resources collating additional paperwork, identifying additional witnesses and providing a response to the new factual allegations and causes of actions. Whilst it is noted that the claimant did not have a legal representative at the time the claim was lodged and is still not represented, the claimant has failed to set out the reason for the delay in their bringing this application in any detail. If the amendment were to be allowed that would prejudice to the respondent as they would be required to investigate the matters raised in the amendment, thereafter, revise the grounds of resistance and so forth. Discussion and Decision

[53]The time limits for discrimination complaints are set out in section 123 of the Equality Act 2010. Proceedings may not be brought after the end of(a) the period of three months starting with the date of the act to which the complaint relates or

(b) such other period as the Employment Tribunal thinks just and equitable.

[54]In Robertson v Bexley Community Centre t/a Leisure Link

2003 IRLR 434

the Court of Appeal stated that when Employment Tribunals consider exercising the discretion under section 123 (1)(b) of the Equality Act 2010 there is no presumption that they should do so unless they can justify failure to exercise the discretion. The Tribunal has, however, wide discretion. A Tribunal cannot hear a claim unless the claimant convinces it that it is just and equitable to extend time. This does not mean that exceptional circumstances are required before the time limit can be extended to such grounds.

[55]In exercising the discretion to allow out of time claims to proceed the Tribunal may also have regard to the checklist contained in section 33 of the Limitation Act 1980 (British Coal Corporation v Keeble and ors

1997 IRLR 336

). Section 33 requires the court to consider the prejudice that each party would suffer as a result of the decision reached and to have regard to all the circumstances of the case in particular the length of and reasons for the delay, the extent to which the cogency of the evidence is likely to be affected by the delay the extent to which the parties sued has co-operated with any requests for information, the promptness with which the claimant acted once he or she knew of the facts giving rise to the cause of action and the steps taken by the claimant to obtain advice once she knew of the possibility of taking action.

[56]In Adedeji v University Hospitals Birmingham NHS Foundation Trust 2021EWCA Civ 23, the Court of Appeal held it was not healthy for the factors to be taken as the starting point for Tribunal’s approach to just and equitable extensions. The best approach when considering exercising discretion is to assess all the factors that it considers relevant.

[57]The respondent submitted that the burden rested upon the claimant to persuade the Tribunal that an extension of time should be granted and that it should not be granted in this case. The claimant was well enough to continue work and to seek advice from her Trade Union. She contacted ACAS on her own account. There was, they argued, insufficient reason to explain why the claims were not submitted in time. The claimant should have known about time limits to pursue her claims and that there was no need to pursue an internal grievance process. The claims were many months late. There was an inadequate explanation for a delay in bringing the proceedings; she did not act promptly; the period of delay is lengthy. The respondents would be prejudiced if the claims proceed. It would entail significant cost. Allowing the amendment which has it’s own deficiencies would entail considerable reinvestigation of events.

[58]The starting point is to consider the claimant’s ET1 which set out the impact of the respondent’s policies on her ability to apply and be considered for a promoted post as a home worker and disabled person together with the failure of the respondent, as she sees it, to make a reasonable adjustment to that policy to allow her to apply. Claims under Sections 13,15,19 and 20 were identified at the CMPH. It is however fair to say that she has expanded the factual basis of these claims. The claims under Section 27 and for breaches of the ACAS code are new.

[59]The claimant relies on three matters which are to an extent interlocked and they are the fact that her Trade Union did not give her correct advice about the applicability of time limits of which she remained ignorant, the long delay taken by the respondent to conclude her internal grievance appeal, the delay in her Trade Union completing and submitting an application for legal advice and finally her ill health and personal circumstances.

[60]I found the claimant both a credible and reliable witness who gave her evidence in a clear and measured way. I would record that the claimant is an intelligent and able person. However, her outward competence is deceptive. It belies the fact that it takes considerable efforts on her part to overcome these health conditions and to be able to fully address difficulties that arise. Her health conditions cannot be ignored in my view nor the personal difficulties that arose in early 2025 with her mother’s fall and spells in hospital. In simple terms the claimant ‘‘had a lot on her plate’’ with her health, work and family difficulties.

[61]The critical matter that explains the claimant’s failure to raise proceedings stems firstly from her ignorance of Employment Tribunal time limits and the fact that she had placed faith in her Trade Union to deal with the matter on her behalf. She was put off her guard by the suggestion that as the dispute revolved around a policy that was still in force that there was no time limit to address. This was reinforced in her mind as having to be the case by the fact that there seemed no hurry on the part of either Trade Union officers she was in contact with either to warn her of time limits or submit the application to access legal advice. The suspicion must be that there was an assumption on their part that as the claimant’s appeal had not yet been decided that there was time in hand.

[62]The position taken by the claimant’s Trade Union representatives in some ways was not unreasonable if the claim related only to the policy which in turn could be regarded as continuing discrimination extending over a period. This sort of reasoning was upheld by the House of Lords in the case of Barclay’s Bank v Kapur

(1991) ICR 208

HL. The argument open to the respondent is that the Tribunal should look at when the policy was last applied when determining the date from which the time limit runs. (Rovenska v GMC

(1998) ICR 85

. The difficulty here for the claimant is that she also objects to specific actions being taken by her employers such as a failure to make adjustments to the policy to take account of the fact that she was disabled which may be time barred.

[63]The respondent’s solicitor pointed out that there were two critical opportunities for the claimant to have checked the issue of time limits and those were her interactions with ACAS. This is to treat these matters with a degree of hindsight and the knowledge that strict time limits existed. It also requires the analysis that the likely claims arise from specific acts (or omissions) in relation to implementing the policy at the point of recruitment in early 2024 which excluded workers like the claimant from the process rather than the continuing existence of the policy itself. The claimant’s later actions need to be considered through this prism. She was not alerted to the possible operation of time limits because of the advice she had received and the apparent insouciance of her representatives in moving the matter forward after they had applied to ACAS.

[64]As noted earlier during this period she was still working part time and managing both her own ill health and in early 2025 personal difficulties arising from her mother’s. It should also be remembered that she was taking part in the grievance and then a tortuous appeal process while chasing her Trade Union representative for progress in obtaining legal advice.

[65]I also took into account the fact that the internal grievance process took some considerable time to conclude and was still continuing when proceedings were finally raised. Awaiting the conclusion of the process was a factor in the delay and in the crystallisation of the dispute between the parties. Although insufficient on its own this was a factor in both occupying the claimant with the process and diverting her energies away from any proceedings.

[66]Looking as I must at the whole circumstances here I conclude that the claimant has persuaded the Tribunal to exercise the just and equitable powers of extension granted to it in her favour. Amendment

[67]The claimant lodged her amendment after being advised at the first Preliminary Hearing that matters advanced by her in her Agenda required amendment. The issue of allowing the addition by amendment of out of time claims arises here.

[68]In Selkent Bus Company Limited v Moore

(1996) ICR 836

guidance was given as to how Tribunals should approach applications to amend. The EAT confirmed that any application to amend a claim must be considered in light of the actual proposed amendment, so that the Tribunal could understand and give consideration to the purpose and effect of the amendment. The claimant in this case had set out her amendment in writing.

[69]In approaching the question of whether to allow an application to amend, Tribunals must have regard to all the relevant circumstances and in particular to any injustice or hardship which would result from the amendment or a refusal to allow it (Cocking v Sandhurst (Stationers) Limited and Ano

(1974) ICR 650

, NIRC). The consequence of this is that when determining whether to grant an application to amend Tribunals should carry out a careful balancing exercise of all the relevant factors, having regard to the interests of justice and to the levels of hardship that would be caused to the parties by granting or refusing the amendment.

[70]In Selkent the then President of the EAT, Mummery P, explained that relevant factors would include:-(i) nature of the amendment - i.e. is the amendment, for example, one involving the correction of clerical or typographical errors, the addition of factual details to existing allegations and or the addition or substitution of other labels for facts already pled? Alternatively, is the amendment one which involves the making of entirely new factual allegations that change the basis of the existing claim? In other words, whether the amendment sought is a minor matter, or a substantial alteration pleading a new cause of action

(ii) applicability of time limits – if a new claim or cause of action is proposed to be added by way of amendment, the Tribunal should consider whether that claim/cause of action is out of time and, if so, whether the time limit should be extended

(iii) the timing and manner of the application – an application should not be refused simply because there has been 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 as it is relevant to consider why the application was not made earlier and why it is now being made. The aforementioned is not an exhaustive list. There may be additional factors to consider in any particular case, but the above basic factors should form part of the Tribunal’s consideration.

[71]The hardship and injustice test is a balancing exercise. As noted by Lady Smith in Trimble and another v North Lanarkshire Council and Ano EATS0048/12 it is inevitable that each party will point to there being a downside for them if the proposed amendment is allowed or not allowed. It will therefore rarely be enough to look at the downsides or ‘prejudices’ themselves. These need to be put in context, and that is why it is important to look at all the surrounding circumstances.

[72]The issue of time bar also requires to be considered. I accept that allowing amendment adding claims that are out of time would debar the respondent from arguing time bar as a defence at any future hearing in accordance with the decision in Amey which was a Scottish EAT decision.

[73]The amendment goes further than the ET1. It adds claims under Sections 13,15, 19, 20 and 27 of the Equality Act. The essential background is still the respondent’s recruitment process in early 2024 and the claimant coming to understand that she was both debarred from that recruitment exercise and that the person recruited would take over her work. My understanding is that the grievance and appeal related to these matters. There was no indication of any alleged victimisation in the ET1.

[74]I bore in mind the comments of Lord Justice Underhill in the case of Abercrombie v Aga Rangemaster Ltd about the prejudice of allowing new causes of action. Quoting Mummery J in Selkent he recorded: “Consistently with that way of putting it, the approach of both the Employment Appeal Tribunal 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 inquiry 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.”

[75]The grievance and appeal will have allowed the respondent to fully investigate the background to these claims. That process has no doubt been recorded. In these circumstances it is difficult to identify any real prejudice to them in having claims articulated that arise from that known background and which expand on what is said in the ET1. The practical effect is that the decision making that took place in the internal processes will be before the Tribunal for determination as to whether any discriminatory behaviour can be identified.

[76]In retrospect it is unfortunate that more time was not spent considering the actual terms of the amendment as there are two matters that stand out. The first is that there is no hint of any behaviour that could be described as victimisation in the ET1. The claimant now sets out numerous matters which she regards as amounting to victimisation under section 27 arising from her grievance in June which is the protected act on which she relies. Such claims are often difficult to prove as the motivation for the behaviour must be related to the protected act. In her amendment the claimant takes issue under this heading with a number of matters including the way in which her grievance was investigated and the behaviour of her managers towards her. While I accept that the claimant may perceive this as victimisation the Act requires the detriment to be ‘‘because’’ of the making of the protected act and such a connection is not clearly stated. The claimant is a party litigant and the assertions should not be read too restrictively.

[77]This is, however, an area where the respondent’s argument that they would be prejudiced if such claims were allowed is on stronger ground. These matters were not referenced in the ET1 nor were they subject to complaint in the grievance appeal. In effect they are wholly new matters that would require the respondent’s solicitors to investigate the allegations and consider leading additional witnesses or at least witnesses that might not otherwise be required. In these circumstances I am not minded to allow the amendment to add a new claim for victimisation under Section 27 although the background may have some relevance to the other claims or to the credibility of potential witnesses charged with victimisation.

[78]In relation to the other statutory claims although the pleadings can be criticised taken as a whole it seems tolerably clear what issues the respondents face namely the same legal issues that arise from the circumstances referred to in the ET1 namely the recruitment process and the way the claimant was treated.

[79]Finally, the claimant also seeks to claim for a breach or breaches of the ACAS Code relating to adequacy of the grievance process. No stand-alone claim exists for breach or breaches of that part of the Code and accordingly the amendment in so far as it relates to these matters is allowed only in so far as it provides potentially relevant background to the disability discrimination claims.

[80]Listing letters will now be sent out to identify dates for a final hearing on the merits. The respondent’s shall have 21 days from the date of issue of this Judgment to adjust their grounds of resistance in the light of the claimant’s amendment. 27 November 2025