C Johnston v The City of Edinburgh Council: 8001287/2025
EMPLOYMENT TRIBUNALS (SCOTLAND)
Case No 8001287/2025
Between
Christina JohnstonClaimantThe City of Edinburgh CouncilRespondent
Before
Employment Judge J G d’InvernoMs S Thomson, Solicitor for respondentDate 15 April 2026
JUDGMENT
The Judgment of the Employment Tribunal is:- (First) That the claimant has Leave to Amend in terms of paragraphs 21 to 27 inclusive of the “Terms of Proposed Amendment” document dated 14 January 2026 under deletion of:-(a) The words “and protected disclosures” where they appear in the heading immediately above paragraph 21;(b) The words “harassment and ongoing disability – related disadvantage,” where they appear in the penultimate line of paragraph 23; and,(c) Of the words “and making protected disclosures” where they appear in the second and third lines of paragraph 24. ETZ4(WR) (Second) Orders the respondent’s representative to write to the claimant, with a copy to the Tribunal, within 21 days of the date upon which these Orders are sent to the parties, setting out the matters of further specification (Further Particulars of Claim) which they seek from the claimant in relation to the amended in paragraphs 21 to 27 as so excised, in order that they may have fair notice of the case which they require to meet; and to do so in the form of written numbered questions, (i) Each question to be succinct and capable of a direct answer. (ii) Portmanteau questions to be avoided. (Third) Orders the claimant, within a further 21 days thereafter, to write to the respondent, with a copy to the Tribunal, providing the Further Particulars of Claim sought by the respondent’s representative; and to do so in the form of written answers to the written questions while utilising corresponding paragraph numbers; (i) Each question to be answered succinctly; and (ii) Lengthy narrative to be avoided. (Fourth) Orders the respondent’s representative, within a further 14 days thereafter, to answer the amendment, to send to the claimant and to lodge with the Tribunal Amended Grounds of Resistance; the same to include full specification of all relevant statutory provisions and an articulation of any subsisting or newly arising Preliminary Issues which, in the consideration of the respondent’s representative are focused by the amended Particulars of Claim and the amended Grounds of Resistance. (Fifth) Orders the respondent’s representative to thereafter draw up, send to the claimant and to lodge with the Tribunal, within a further 14 days, an updated Draft List of Issues, including Preliminary Issues, requiring investigation and determination at hearing; the same to include full citation of all relevant statutory provisions (sections and sub sections/paragraphs and sub paragraphs) of primary and secondary legislation where applicable). (Sixth) Orders parties to thereafter liaise and to write to the Tribunal, either separately or, in the event of agreement, the respondent’s representative on behalf of both parties, setting out proposals for further procedure in the case.
REASONS
[1]This case called for Open Preliminary Hearing, in terms of Order (Seventh) of the Tribunal Orders of 12 December 2025 issued at the Closed Preliminary Hearing (Case Management Discussion) which proceeded before the sitting Judge on that date, the written copy of which was sent to parties on 17 December 25 and of which, Notice of Hearing was issued to parties on 6 January 2026, for the purposes of:-(a) Determination of any opposed elements of such Application for Leave to Amend as the claimant may have brought forward further to Order (Fifth) of 12 December 2025, and(b) The respondent’s challenge, by reason of asserted time bar, to the Tribunal’s jurisdiction to hear elements of the claimant’s complaints of harassment related to the protected characteristic of Sex/Sexual Harassment, in terms of section 26 of the Equality Act 2010.[2]The claimant appeared in person. The respondent was represented by Ms Thomson, Solicitor.[3]By Application dated 14 January 2026 the claimant sought Leave to Amend in terms of an accompanying document “Terms of Proposed Amendment” in which she bore to set out, within quotation marks, the actual words which, in terms of her Application, she seeks Leave to Amend into section 8.2 of her initiating Application ET1 as first presented on 22 May 2025.[4]In its Orders of 11 September 2025, issued following the first Closed Preliminary Hearing (Case Management Discussion) which proceeded in the case on that date and at which the claimant participated, the Tribunal recorded the claimant’s confirmation that the claims which she sought to give notice of in her initiating Application ET1, in the narrative of which at section 8.2 she makes reference to having been “sexually assaulted under 10 years ago by a work colleague”, as including complaints of Sexual Harassment in terms of section 26(2)(a) of the Equality Act 2010.[5]In the 14 January 2026 “Terms of Proposed Amendment” document, at paragraph 3 under the heading ‘Sexual Assault/Sexual Harassment/Unwanted Sexual Contact’, the claimant stated that she ‘does not pursue claims in respect of the underlying acts themselves’.[6]The claimant’s Title to Present and the Tribunal’s Jurisdiction to Consider such complaints was one of the Preliminary Issues before the Tribunal for determination at Open Preliminary Hearing.[7]At the outset of the Hearing, the respondent’s representative sought clarification/confirmation from the claimant as to whether or not she sought to present complaints of Harassment related to the protected characteristic of Sex and or of Sexual Harassment both in terms of section 26 of the EqA.[8]The claimant confirmed to the Tribunal, contrary to the position recorded at the Closed Preliminary Hearing of 11 September 2025, that she does not and did not seek to present such complaints explaining rather, that what she sought to do, in terms of her Minute of Amendment was to found upon her disclosure of that occurrence, to her Managers on 17 and or 20 May 2024, as constituting the doing of a protected act, for the purposes of supporting a putative complaint of section 27 EqA Victimisation which she now sought to introduce by way of amendment.[9]The Tribunal having double checked with the claimant that that was indeed her position, of consent of both parties, dismissed the “apparent” complaints of Harassment and or of Sexual Harassment in terms of section 26 of the EqA, with the consequence that the requirement to determine the claimant’s Title to Present and the Tribunal’s Jurisdiction to Consider such complaints, falls away.[10]In accordance with the Tribunal’s earlier issued Direction, made with a view to putting parties on an equal footing in accordance with the Overriding Objective, the respondent’s representative had prepared and provided to the claimant, with a copy to the Tribunal, a skeleton of the arguments and contentions to be advanced on behalf of the respondent at the Open Preliminary Hearing. In terms of that skeleton the respondent confirms and gives notice its earlier intimated position of opposing, in its entirety, the Application for Leave to Amend.[11]At the outset of hearing the Tribunal explained to parties that it would determine matters on the basis of the written Application and written Grounds of Objection and of oral submissions made before it.[12]The Tribunal confirmed, regarding the order in which parties would address it, that the respondent’s representative would first set out the Grounds of Objection to the Application for Leave to Amend, that the claimant would then make her submissions in response with the respondent’s representative exercising a limited right of reply in relation to any new matter raised by the claimant which had not already been addressed by her.[13]The Tribunal reminded parties that the Hearing was not one which was concerned with determining whether or not any of the matters alleged or denied had in fact occurred but rather was one fixed for the sole purpose of determination of the question of whether or not the claimant was to be granted Leave to Amend in terms of her Proposed Amendment of 14 January 2026, and if so, to what extent and in what terms. Summary of Submissions for the Respondent[14]In accordance with the Tribunal’s earlier Direction the respondent’s representative had prepared a skeleton of the arguments and contentions to be advanced on behalf of the respondent, copies of which had been provided to both the claimant and to the Tribunal. Although the respondent’s representative made oral submissions at length, the essence of these was set out in the skeleton argument and they are thus, only summarised here; viz;[15]The claimant’s Application to Amend in terms of her Proposed Amendment (both dated 14th January 2026) was opposed in its entirety by the respondent on the grounds that such claims as may be capable of being identified within the Proposed Amendment are all new claims not given notice of in the initiating Application ET1 and further, are claims in respect of which the basis in asserted fact and in statutory jurisdiction remains unclear.[16]The claimant had confirmed, in the course of the hearing that she did not and had never intended to give notice, either in her initiating Application ET1 or in terms of her Proposed Amendment, of complaints of Sexual Harassment in terms of section 26(2)(a) of the Equality Act 2010.[17]Following that clarification which was recorded by the Tribunal, those “apparent claims” had been dismissed. The claimant had further confirmed that all reference to historic acts of sexual harassment/assault whether appearing in the initiating Application ET1 first presented on 22 May 2025, or in the terms of the Proposed Amendment, were to be read as only as giving notice of a disclosure by the claimant, on or around 20 May 2024 to her Managers, for the purposes of constituting the doing of a “protected act” in terms of section 27 of the Equality Act 2010.[18]From her consideration of the terms of the Proposed Amendment the respondent’s representative considered that the claimant bore to be seeking to give notice, in its terms, of the introduction of new claims being the complaint of section 26 EqA 2010 Harassment related to the protected characteristic of Disability, a section 27 EqA 2010 Victimisation, section 13 EqA Direct Discrimination because of the protected characteristic of Disability and section 21 Discrimination by reason of alleged breach of duty to make adjustments arising in terms of section 20 of the EqA in the face of the protected characteristic of Disability. Nature of the Amendment[19]By its nature the Proposed Amendment constituted a substantial alteration of the claim seeking to introduce 4 entirely new Heads of Claim arising from new facts and not merely in consequence of a relabelling exercise. That coupled with the claimant’s confirmation that what had been previously perceived as complaints of sexual harassment from the terms of her ET1 were not in fact pursued, resulted in a situation in which the claimant was seeking to substitute, for her original claim, 4 new Heads of Claim with the effect that if allowed the respondent would require to respond to an entirely different claim.[20]That notwithstanding the length of the Proposed Amendment, the terms remained unclear and were so lacking in specification as to fail to give fair notice of the case to be met and in consequence, were not capable of being effectively responded to. The Proposed Amendment contained reference to allegations said to have occurred beginning in 2021 across a 5 year timescale. For the majority of the allegations there was lack of specification as to the acts complained of, the alleged perpetrators, the date upon which the acts took place and, the legislative basis for each complaint resulting in it not being possible for the respondent to respond to the claims were Leave to Amend in the terms sought to be granted.[21]In respect of the prospective complaint of victimisation, the terms of the Amendment did not include notice of offer to prove any causal link between the asserted detriments on the one hand and the protected acts on the other. Nor in respect of allegations of direct discrimination, any link between the alleged less favourable treatment and the claimant’s asserted disability. The same lack of causal connection/relation to the founded upon protected characteristic was also wanting in relation to the non sexual harassment complaint under section 26 of the EqA. Applicability of Time Limit[22]The last act of alleged harassment related to disability referred to in the terms of Proposed Amendment appears at paragraph 23 of the document and is said to have occurred on 20 May 2024. That act, of the claimant’s relocation of workplace, is said to constitute both the last act of direct discrimination and the last act of harassment related to disability. No further such acts are pleaded or given notice of beyond that date with the result that the Tribunal lacks jurisdiction to consider the complaints in terms of section 123(1) and or 123(3) of the Equality Act 2010, those last acts having occurred a year before the claim was first presented. Separately, and in any event, there was a lack of specification and clarity as to which alleged acts are relied upon as constituting victimisation on the one hand and or breach of duty to make adjustments on the other and or, yet again, as detriments suffered on the grounds of having done a protected act, making it impossible for the respondent and for the Tribunal to take a view in relation to the Tribunal’s jurisdiction were amendment to be allowed in the terms proposed.[23]The claimant’s claim was raised in May 2025 and her ET1 first presented on 22nd 05 2025. The claim as presented did not include any reference to discrimination (relating to any protected characteristic), to failure to make reasonable adjustments, to victimisation, to harassment related to disability and in fact made no reference to disability at all, neither within the text appearing at section 8.2 or by reason of any of the boxes at section 8.1 having been ticked. As such the claimant’s Proposed Amendment, if Leave were to be granted, would have the effect of introducing entirely new claims. Balance of Hardship and Prejudice[24]The amendment in its proposed form is so lacking in specification as to be incapable of being properly responded to. Should Leave to Amend be allowed in the terms proposed that will result in longer delay to any Final Hearing as further time would be required to allow the respondent to seek clarification and specification of the claims potentially contained within the Amendment, to then investigate events stretching back over a 5 year period with potentially relevant witnesses who may not be able to accurately recall events given the general nature of much of the allegation and the passage of time. That will result in the respondent incurring further significant expense and the passage of further significant periods of time. The Proposed Amendment also gives rise to potentially significant jurisdictional issues, including but not limited to, time bar and in respect of which, given the allegations made, focussed the requirement for a further Open Preliminary Hearing. The prejudice to the claimant on the other hand would appear limited because the claims given notice of in the Proposed Amendment are not sufficiently particularised nor in a form that can be effectively responded to.[25]The respondent’s representative submitted that the balance of hardship and injustice which would result to the respondent in the event that Leave to Amend was allowed, compared to that which would result to the claimant in the event that Leave to Amend was refused, lay in favour of refusal which latter determination the respondent’s representative, under reference to the following statutory provisions and case authorities, urged the Tribunal to make, refusing the Application for Leave to Amend in its terms. Statutory Provisions in Case Authorities to which the Tribunal was referred:-(1)The Equality Act 2010 sections 13, 20, 21, 26, 27, and 123.(2) Chandhok v Tirkey (EAT) [2015] ICR EAT 527(3) Selkent Bus Company Limited v Moore (EAT) [1996] 836(4) Transport and General Workers Union v Safeway Stores Limited (UKEAT) [2007](5) Bexley Community Centre (trading as Leisure Link) v Francis Robertson CA [2003](6) Polystar Plastic Limited v Mr M Liepa [2023] EAT 100, 2023 WL04625776(7) Dr Nicholas Jones v Secretary of State for Health and Social Care [2024] EWCA Civ 1568, 2024 WL05107275(8) Southwark London Borough Council v Afolabi [2003] EWCA Civ 15 The Claimant’s Submissions[26]The Tribunal is not under obligation to record at length the detail of submissions made by parties and would normally sumarise these.[27]Recognising that the claimant appears on her own behalf and in the interests of completeness and of fully representing the position outlined by her, the Tribunal, exceptionally sets out below the full text of the submissions made by the claimant as contemporaneously noted by the Employment Judge.[28]The Judge having invited the claimant to respond to the submissions made on behalf of the respondent the claimant submitted as follows:- “The respondent’s representative made reference to my opposed amendment being 17 pages long. My amendment is crystal clear full of dates it reflects clarity and no new facts at all. I set out each claim separately and clearly and the length of my submission reflects clarity not new facts. It doesn’t matter now but the ET1 we got is not the one I sent I say I ticked every box. All I can say is I wasn’t represented. I did not understand the legal terminology but I described the facts as best as I could at the time. I used the words ‘bullying and harassment’. I used those words throughout my time [with the respondents] to describe the discrimination that was happening to me. I sent internal emails using the term discrimination but then said I was being bullied. When I referred to bullying and harassment, the discrimination was my bullying and harassment related to my disability and I stated bullying and harassment all the way through. Before 20th May when I received the grievance outcome and responded I stated about victimisation I have never realised, I did not know that I was being victimised. I first became aware of that when the Judge referred me to the terms of the statute [at the first Closed Preliminary Hearing in September 2025] and I searched on the internet and have never stopped since but up until then I did not know* the legal form even though I had completed 2 ET1 forms and I saw the boxes I did not know until I looked at the statutes what these terms meant I just called it bullying and harassment. So I felt I say I said at work that I was being bullied and harassed because of my bowel condition. I was complaining continuously; to my boss about bullying and harassment and that you are not supporting me about my bowel condition. But she said in 2001 that she would support me but she didn’t. When I complained to Jane Donaldson and about Conrad Barns the senior I was told in an email she is just fooling with you. I was having bowel accidents at work. I was experiencing anxiety at work I was experiencing harmful thoughts. I was breaking down at work and at home. My family and my daughter were worried about me. On the 6th of May 2024 my Manager eventually held a meeting. I was stating about the 27th of April 2023 and sharing my thoughts. I got numerous dates – 7th September 2023 C Barns shouting at me humiliating me causing anxiety and distress when I was trying to manage my symptoms in the toilet. No matter how many times I complained it was brushed off I did not know what to do. I felt no one was going to help me. On 19th September (page 2010 in the bundle I went to my Manager and said that I was sick of how I was being treated with only one toilet down the stairs. They blocked it with furniture. Management used to lock the door with a knife because children were opening the door. The knife was at the edge of the door. I couldn’t reach the knife and could not get into the door. When I complained I was told to stop moaning. So on 17th September I said to my Manager that she was not supporting me and that the toilet was blocked constantly. I didn’t feel supported at paragraph 13 [of the Proposed Amendment] she said ‘you never feel well’. She was dismissing my disability. The last part of that is that my Manager was photocopying my medical appointment letters which I had to show her to get the time off for the appointments. She did not believe in the severity of my condition. Every time she said leave it here and she was caught copying my medical appointment letters and she admitted it. My claim is disability discrimination, failure to make adjustments, harassment related to disability and victimisation. That is why I had a meeting on the 6th of May which Tracy Shaw asked for, at the meeting was Jane Donaldson my Manager, Tracy Shaw my Manager’s Manager and myself. At the meeting I had with me contemporaneous notes with all the dates of the things that had happened to me but at the meeting I wasn’t allowed to show my dates so I knew then this was not going to stop so I asked for a meeting with my Manager it was arranged for the 20th of May at the meeting I disclosed the underlying earlier [sexual harassment] because I was in a very dark place and wanted to disclose it and to raise a grievance. So I disclosed first what had happened to me because I was so broken and worried about my wellbeing. I stated that I wanted to make a grievance and that I was being bullied and harassed because of my disability and I wanted to make a grievance. Tracy Shaw stated ‘so you are being discriminated and isolated’ yes. So Tracy went on to state well you’ll take these (both of these investigations will be taken) very seriously. This is when my Manager out of the blue said ‘this can’t carry on, it is an unhealthy working environment for you and for everyone involved.’ And she then stated it’s best you move. I started to cry and said I don’t want to move but my Manager said it was for the best. You can choose where you want to go. I was being punished for complaining as I was being discriminated. I was in absolute shock I was hysterical. There was a very strong clear power imbalance because my Manager shouted at me and said ‘it’s for the best it cannot carry on Christine’. It just went on. I worked there. I did not want to leave. She said how great it would be for me and I thought if I moved all bullying and harassment would stop I would not have to deal with it every day. The following day 23rd May I emailed, at night to demonstrate the effect on my mental health at about 1 in the morning. I emailed to Neil Lennon first to say I had been penalised for making a formal complaint [see page 228 of the bundle] and 227 in my email to Tracy about having to move from my place of work. I was very distressed. 30th May – I was told I was to be relocated after raising the issue of my disclosures. I had a mental breakdown went straight to the doctor my Fit Notes – I could not cope with all that had happened and was being punished for raising a protected act, a formal complaint. On 30th May 2024 I went off sick. My first Fit Note is at page 351 of the bundle it says stress at work. Then during the time that I was absent I was dealing with the internal investigations for the grievance and for my disclosures (disability discrimination) both were being investigated. On 30th May 2024 I contacted ACAS. On 29th August 2024 my mum died unexpectedly. I had refused to leave the hospital for 2 weeks and remained with her I took her to hospital in July because she was unwell then she was getting better I had only one day when I did not see her and she said that a nurse had hurt her and there is an investigation ongoing, I have plenty of evidence for it. Going back to work the doctor wrote a line ‘because of my work’ at page 356 asking for reduced hours it was ignored by the respondents who advised that the needs of the service came first. October, in October I was sent to two temporary establishments, first at Davidson Mains and then at East Craigs and then to the Maybury School which was my choice of place to transfer to when in January 25 I was told I would have to transfer. I was incredibly unwell. All of my other Fit Notes state ‘work related stress, anxiety, PTSD. There are 5 Fit Notes in all at pages 351 to 355. So 31st January 25 there was a grievance investigation meeting it took place 8 months after I had raised the grievance. The Investigating Officer was Carla Ross. The interview took place on the 31st of January 2025 between then I was repeatedly asking what’s going on about the investigation. I sent emails to Paula Greenhill in March 2025 at page 230 [of the bundle] she was the nominated Investigating Officer. I sent a contact to ACAS as a year had passed with no outcome from either investigation. 14th April 2025 and 17th April 2025 Hannah Baines, Investigating Officer for the disclosure, I had an interview with her. When she sent me the notes they were inaccurate I said ‘not my wording’ we agreed that we would meet up again but because there were two investigations ongoing, on the 7th of May 2025 I asked for the disclosure investigation to be paused because of overlap of the two investigations I was struggling to cope. Page 232 I asked for it to be paused just until the grievance investigation ended. I was very ill and trying to manage my mental health. 29th May 2025 the grievance hearing came but during it it was abruptly stopped three quarters of the way in when I started saying that the information which I had given to Carla Roth the Investigating Officer hadn’t been investigated and I said that she exhibited bias towards me – I did not get a fair hearing. Paula Greenhill and HR’s Claire Cochrane had a break, then said after it we are stopping this hearing and said that a new Investigating Officer will be taking over. No reason was given. Page 279 Paula Greenhill still sent me the report page 305 Paula concluded the investigation and partially upheld, and adjourned to allow other investigations and for a new Investigating Officer to be appointed. During this time Paula Greenhill she was asking me to send to her the information which I had said had not been investigated. I said she should get it from Carla Roth as I had already sent it to Carla Roth page 237-239 and page 240. On 14th July 2025 Paula sent a grievance outcome without any new Investigating Officer having been appointed. So it took 1 year and 2 months for that investigation – page 306. Then, on 4th August 2025 Paula Greenhill the nominated Officer lifted the pause on the disclosure investigation. On 4th September 2025 I had a meeting with Hannah Bain, the Investigating Officer to review and amend the notes of the meeting of 17th April 2025 but the notes of that 4th September review meeting are not available. The updated report is full of inaccuracies page 341. 18th November 2025 Police Scotland were informed 18 months after I disclosed the matter and the Police have stated that they wondered why it had taken so long to inform them. 7th January 2026 Paula sends me an email to invite me to attend a disclosure investigation meeting – page 275. I refused because my claim is not about the underlying acts [which I disclosed]. It is about the respondent’s mishandling of the investigation. I told her just send me all of the information about the mishandling – 275. 19th January 2026 discussing the investigation just contradictions and procedural failures. Stating that she has concluded the investigation but wants me to go to a reconvened meeting. 29th January [page 283] For failures I say it’s a very severe failure omitting the 4th of September 24 review meeting. Is a major procedural failure. On 30th January [pages 283 to 284 and 289] emails about please can it be stopped as investigation now 2 years old.” Further Submissions of the Respondent In Reply[29]The respondent’s representative submitted that the apparent complaints of sexual harassment having been dismissed of consent of parties at the outset of the hearing following the claimant’s confirmation that she had not and was not presenting any such claims, there were remaining no residual complaints given notice of in the initiating Application ET1 and that everything else was contained in the amendment.[30]Regarding what the claimant said was her ignorance prior to the first Closed Preliminary Hearing of 11th September 2025, the respondent’s representative submitted that that ignorance was not reasonable in the circumstances and that the claimant, notwithstanding the fact that she was a litigant in person, ought reasonably to have known what type of claims she wished to bring. She could have sought advice from various voluntary or statutory bodies for example the Citizens Advice Bureau or ACAS or have carried out, as she subsequently did following the 11th of September Closed Preliminary Hearing, an internet search such as to allow her to give fair notice of those claims within the initiating Application ET1.[31]Although the claimant had made reference to the length of time which had elapsed between her first reporting the allegations of sexual assault and the respondent’s reporting of those allegations to Police Scotland, it was the respondent’s position that the claimant was not happy that the respondents had informed Police Scotland. She had not informed Police Scotland and had not wished the matter to be reported to the Police. [At this point in the respondent’s reply the claimant intervened stating that that wasn’t the case.][32]While the claimant had made reference to various pieces of correspondence in her submission, the correspondence did not form part of the amendment and events said to have occurred on the 17th, the 19th and the 29th of January all postdated the date of the Application for Leave to Amend and the creation of the terms of the Proposed Amendment which had occurred on 14th January 2026. She submitted that many of the matters to which the claimant had referred in submissions were not contained within the terms of the Proposed Amendment. Likewise, the claimant’s asserted ignorance of the existence of victimisation until after the first Closed Preliminary Hearing on 11th September 2025 was not reasonable ignorance, but even if the Tribunal held the ignorance to be reasonable, the claimant had delayed for a period of 4 months between the date of that hearing on 11th September 25 until the 14th of January before making an Application to Amend and had provided no explanation for doing so. That was a fact which required to be considered in the exercise of balancing the relative injustice and hardship associated with the granting or refusal of the Application for Leave to Amend. Discussion and Determination[33]At this Hearing, the claimant makes Application for Leave to Amend, in terms of a Proposed Amendment dated 14 January 2026, her initiating Application ET1 first presented to the Tribunal on 25 May 2025.[34]Parties may be granted Leave to Amend their statements of case as contained in their initiating Applications ET1, to bring forward relevant and intelligible (that is to say sufficiently specific as to accord the other party fair notice of the case they have to meet) and apparently credible claims, that is to say stateable claims which can be seen to enjoy a reasonable prospect of success, where the balance of injustice and hardship which would result to the applicant if Leave to Amend was refused, outweighs the injustice and hardship to the other party, and where relevant to litigants in general, were Leave to Amend in the terms sought to be granted. When is an Application to Amend required[35]A party’s case should be set out in its original pleading (the claimant’s ET1 and the respondent’s ET3) which should respectively contain parties’ essential cases. In Chandhok v Tirkey (No 2 on List of Authorities above), per Langstaff P as he then was, the EAT said:- “The claim, as set out in the ET1, is not something just to set the ball rolling, as an initial document necessary to comply with time limits but which is otherwise free to be augmented by whatever the parties choose to add or subtract merely upon their say so. Instead, it serves not only a useful but a necessary function. It sets out the essential case. It is that to which a respondent is required to respond. A respondent is not required to answer a witness statement, nor a document, but the claims made – meaning under the Rules of Procedure, the claim as set out in the ET1”.[36]It follows that if a claimant wishes to argue a claim that is not set out in the ET1, they should make an Application for Leave to Amend. Similarly a respondent needs to apply to amend their ET3 if it wishes to assert a new ground of defence/resistance. In principle, it is not open to parties to expand the scope of a claim or a response through, for example Further Particulars (other than to the extent of giving further specification of claim already given notice of in the initiating Application ET1 and as directed and ultimately formally received by the Tribunal) or by inter party correspondence, or through the vehicle of a List of Issues or a witness statement.[37]A Tribunal can consider an application to amend a claim or a response at any stage of the proceedings.[38]In Scottish Opera Limited v Winning UKEAT/0047/09 Underhill P (as he then was) noted that:- “Clear and accurate pleadings are of importance in all cases, but particularly in discrimination claims. It is essential that parties seeking permission to amend to introduce such a claim, formulate the proposed amendment in the same degree of detail as would be expected had it formed part of the original claim; and the Tribunal should ensure that the terms of any such proposed amendments are clearly recorded.”[39]While the Rules of Procedure do not prohibit the making of an oral application to amend in the course of a hearing, the above guidance points to the appropriateness of amendments being set out in writing. Factors Taken Account Of[40]The Tribunal considers an application to amend a claim or a response, in light of its duty, under the overriding objective as set out in the Rules of Procedure, to deal with cases fairly and justly and which includes:• Ensuring that the parties are on an equal footing• Dealing with a case in ways which are proportionate to the complexity and importance of the issues• Avoiding unnecessary formality and seeking flexibility in the proceedings• Avoiding delay so far as compatible with proper consideration of the issues• Saving expense[41]Two key decisions of the Employment Appeal Tribunal have identified factors which the Tribunal should include in its consideration when determining an application to amend.[42]In Cocking v Sandhurst (Stationers) Limited [1974] ICR 650, the then President of EAT held that regard should be had to all the circumstances of the case and in particular, the Tribunal should “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.”[43]The case of Cocking was followed by the EAT in Selkent Bus Company Limited (trading as Stagecoach Selkent) v Moore) [1996] IRLR 661, which held that, when faced with an application to amend, a Tribunal must carry out a careful balancing exercise of all the relevant circumstances, and exercise its discretion in a way that is consistent with the requirements of “relevance, reason, justice and fairness, inherent in all judicial discretions.” The EAT considered that the relevant circumstances would include:-• The nature of the amendment• The applicability of time limits, and,• The timing and manner of the application[44]In Chaudhry v Cerberus Security and Monitoring Services Limited [2022] EAT 172, the EAT suggested a two point checklist that Tribunals might find helpful when considering applications to amend:-(a) First identify the amendment or amendments sought which should be in writing. (i) It is important to clarify the specific amendments that are sought because otherwise it will not be possible to balance the injustice or hardship of allowing the amendment(s) against that of refusing them. There need not always be an all or nothing decision because some amendments may be clearly identified and the case for allowing them may be compelling while others may be nebulous and the arguments for permitting them insufficient.(b) Second, in express terms, balance the injustice and hardship of allowing or refusing the amendment or amendments, taking account of all the relevant factors, including to the extent appropriate to those referred to in Selkent. The Nature of the Amendment[45]When an Application seeks to make a substantial amendment, such as introducing a new cause of action, the Tribunal will exercise its discretion more carefully having regard to the wording of the Proposed Amendment. New Cause of Action[46]A distinction falls to be made between amendments that:(a) Seek to add or substitute a new claim arising out of the same facts as the original claims; and(b) Those that add a new claim entirely unconnected with the original claim.[47]In order to determine whether the Proposed Amendment is within the scope of an existing claim or constitutes an entirely new claim, the entirety of the claim form should be considered. In some cases the Application will merely be seeking to “relabel” a set of existing facts and may not therefore be as significant an amendment as it first seems; and a Tribunal may be expected to adopt a flexible approach and to grant amendments that, for example, only change the nature of the remedy sought. New Claims arising out of the same Facts as the Original Claim[48]Where new claims are very closely related to the claim originally pleaded and depend on facts that were substantially already alleged, that is likely to be a factor in favour of allowing amendment. Determining whether the Amendment seeks to bring a new Cause of Action[49]In Ali v Office of National Statistics [2004] EWCA Civ 1363, the English Court of Appeal held that whether a claim form already contained a specific claim could only be judged by looking at the document as a whole and considering the name given to the claim as well as the factual details accompanying it. If a claim was put very generally for example discrimination, its particulars would need to be specific enough to enable the employer to be clear about what allegations were being made against them. Time Limits[50]Time limits are relevant if the claimant wishes to add by amendment what is an entirely new complaint.[51]When should the time limit issue be decided?[52]In Patka v British Broadcasting Corporation UKEAT/0190/17, the EAT approved the Tribunal’s decision to not decide whether the new claim was still in time when determining the Application. This followed a shift in the approach taken to amendment applications. The position previously established in the case of Selkent, was that: “If a new complaint or cause of action is proposed to be added by way of amendment, it is essential for the Tribunal to consider whether the complaint is out of time and, if so, whether the time limit should be extended under the applicable statutory provisions.”[53]In Amey Services Limited and another v Aldridge and others UKEATS/007/16, the EAT in Scotland held that determining an amendment application is a single stage exercise and an amendment cannot be allowed “subject to time bar issues”. The decision in Amey Services refers to earlier decisions explaining that the reason why consideration of time bar issues was essential when determining an amendment application, was because once an amendment was granted, a respondent was prevented from raising a limitation defence.[54]However, in Galilee v Commissioner of Police of the Metropolis UKEAT/0207/16, the EAT, sitting on an English Appeal, reached a different view; namely, that a Tribunal can decide to allow an amendment, subject to limitation points or, alternatively, it can postpone making a decision on the Application to Amend. This might be necessary in cases that require significant evidence in order to determine time points, such as whether there are any continuing acts or whether time should be extended in discrimination claims. Furthermore, the EAT held that amendments and pleadings in the Tribunal which introduced new claims or causes of action, take effect for the purposes of limitation at the time permission is given to amend. Galilee is not authority for the proposition that time points cannot ever be considered and determined with finality as part of an amendment application at a Preliminary Hearing; rather, it is authority for the proposition that it is not mandatory to do so, and notes that it may be difficult to do so in certain cases where significant evidence is required.[55]Applications to amend the pleadings can be made at any stage in the proceedings and an application will not generally be refused solely because there has been delay in seeking amendment. The extent of a party’s delay, however, is a factor that the Tribunal may take into account. In general terms the party seeking Leave to Amend will need to show why the application was not made earlier and why it is now being made.[56]A consideration of the entirety of the initiating Application ET1 presented on 22 May 2025 discloses under section “8 Type and Details of Claim” as follows:-(a) At section “8.1 Please indicate the type of claim you are making by ticking one or more of the boxes below” no boxes are ticked including in particular the box, the ticking of which would indicate; “ □ I was discriminated against on the grounds of – disability”.(b) At the foot of section 8, page 6, under the heading ‘I am making another type of claim which the Employment Tribunal can deal with (please state the nature of the claim. Examples are provided in the guidance)’”, that box is ticked and in the space below the following words appear as a list: - “Bullying/harassment Sexual assault Injury to feelings Personal injury Duty of care PTSD” “Victimisation” is not included in that list which, on an application of the normal rules of construction, would fall to be considered as having been intentionally omitted.(c) In section 8.2 – “Please set out the background and details of your claim in the space below. The details of your claim should include the date(s) when the event(s) you are complaining about happened. Please use the blank sheet at the end of the form if needed.”[57]The following words are set out:- “I was sexually assaulted under 10 years ago by a work colleague, finally had the courage to disclose. I was promised counselling whilst an investigation would take place. One year later nothing, no support as promised, whilst more and more people in management being told what happened to me. I have been told who all know and I struggle with this as they have done nothing to support me. My Manager has apologised on behalf for the length of time taken. Now one year later ..an investigation is underway, there has been no duty of care, they left me to struggle to rot. I disclosed due to suffering countless bullying at work by my Manager and Senior. Almost 2 years ago I was noticing changes in the way that I was being treated at work by my Manager. This escalated to both my Manager and a Senior I was belittled, humiliated, singled out, refused personal CPD training to develop my skills, deliberate unfair treatment, insulted, judged. I reached out to management, HR, higher management many times, I was constantly dismissed. I could no longer cope. I was having a breakdown, my health suffered, my home life suffered. I asked for another meeting after one previous one where I wasn’t being listened to. I was told soon after this, I was being removed from my place of work. Convincing me it was for my best interest. I was very upset inside. I contacted HR to complain of being penalised because I raised a formal complaint. HR (Neil) ignored me. I went off sick then I was moved to another temporary establishment. It was unfair and said goodbye to my friends at work. It was very difficult. Two serious formal complaint investigations. Both were overlapping, one investigator asking for information “[sic-about]” the grievance and another investigator asking information about the sexual assault. I told my work I cannot cope dealing with both at the same time! No care for me. My health and wellbeing severely impacted. Due to my absence record (only ever hospital illness absence). I was told by my Manager and HR … if I go off sick I will go onto half pay. I told them but it is you that has made me unwell .. all I have been through and are going through. I couldn’t afford to be off on half pay so I have struggled in work. Breaking down in toilets, now suffering anxiety and PTSD. My wellbeing has suffered profoundly. The severity of pain caused by my work no duty of care has affected me so badly. I have alopecia, I cannot control exacerbating when stressed. My work has failed me.”[58]Applying to it, the normal rules of construction and according to the words used their statutory meaning where applicable and otherwise their ordinary English language meaning, the terms of the initiating Application ET1, considered in its totality do not fall to be regarded as giving notice of any complaint of Harassment related to the protected characteristic of Disability in terms of section 26 of the Equality Act 2010 any complaint of Direct Discrimination because of the protected characteristic of Disability in terms of section 13 of the Equality Act 2010, any complaint of Discrimination in terms of section 21(2) of the Equality Act 2010 by reason of an alleged breach of failure in a duty to make adjustment vis a vis a disabled person said to arise in terms of section 20 of the 2010 Act.[59]The terms of the initiating Application ET1 nowhere include reference to any of the sections of the Equality Act in which the Tribunal’s Jurisdiction to Consider such complaints and a claimant’s Title to Present such complaints is contained. Neither do the words “disability”, or “harassment”, (other than in the context of sexual harassment), or “failure to make adjustments” appear.[60]On their proper construction the words which are set out at section 8.2 of the ET1 fall to be read as providing some particularisation of the apparent (now dismissed) complaints of sexual harassment, and those in the fifth last to the penultimate lines – “I told them but it is you that has made me unwell …. no duty of care has affected me so badly. I have alopecia, I cannot control exacerbating when stressed”, of an otherwise wholly unparticularised potential complaint of (a claim for damages for) “personal injury” which appears in section 8.1 under the heading “I am making another type of claim which the Employment Tribunal can deal with.”, albeit, when so read, that apparent claim remains so lacking in specification as to fail to give the respondent fair notice of the case which it has to meet, as to fail to disclose a relevant claim for damages for personal injury and such that, it is not capable of being responded to other than by a bald denial.[61]The words which appear at line 7 to line 17 of section 8.2 of the ET1 make no reference to “victimisation” nor to section 27 of the Equality Act 2010. Neither is any reference made to such a complaint or to statutory basis for jurisdiction of such a complaint at section 8.1.[62]Notwithstanding the above the Tribunal considers the words “I disclosed due to suffering countless bullying at work by my Manager and Senior. Almost 2 years ago I was noticing changes in the way I was being treated by my Manager. … I was told soon after this, I was being removed from my place of work. Convincing me it was for my best interest. I was very upset indeed. I contacted HR to complain of being penalised because I raised a formal complaint. HR (Neil) ignored me.”; and the words which appear at lines 1 and 2 of section 8.2; viz, “I was sexually assaulted under 10 years ago by a work colleague, finally had the courage to disclose. I was promised counselling whilst an investigation would take place. One year later nothing ….. now one year later … an investigation is underway, there has been no duty of care, they left me to struggle to rot.” are words which give notice of asserted factual allegations which, were such a claim to have been included in the initiating Application when it was raised, would be capable of supporting a potential complaint of section 27 EqA Victimisation and claim for compensation for resultant hurt to feelings albeit, as currently pled so lacking in specification such as to fail to give notice of a sufficiently relevant and thus competent complaint of section 27 EqA Victimisation, such as to fail to give the respondent fair notice of the case which they require to meet and being incapable of being responded to beyond a bald denial. The Proposed Amendment – 14 January 2026[63]The possibility of the question of potential amendment by the claimant having been raised at the second Closed Preliminary Hearing (Case Management Discussion) which proceeded on 12 December 2025, the claimant made a written Application to Amend in terms of an accompanying document “Terms of Proposed Amendment” respectively on and dated 14 January 2026. Structure of the Amendment Document[64]The document “Terms of Proposed Amendment” comprises 48 paragraphs extending over 17 pages. The document consists(a) in part of proposed averments bearing to give notice of claims,(b) in part of contentions and argument which sit in the category of submissions as to the merits of the matters given notice of let it be assumed that Leave to Amend had been granted and let it be further assumed that those matters had been established at an evidential hearing; and, again,(c) in part of submissions explaining that when the claimant used the term “bullying and harassment” in section 8.2 of her initiating Application ET1, the term was to be taken as meaning, and giving notice to the respondent and to the Tribunal of, complaints of:- (i) non sexual harassment related to the protected characteristic of Disability in terms of section 26 of the EqA, (ii) Direct Discrimination because of the protected characteristic of Disability, section 13 of the EqA and, (iii) Discrimination in terms of section 21 by reason of Breach of Duty to make Adjustments, said to arise in terms of section 20 of the EqA.[65]The basis upon which, in terms of the document, it is submitted that the respondent and the Tribunal should accord such meaning to the term “bullying/harassment”, was that in the course of the claimant’s pre litigation dealings with her employer when she used the term “bullying” and or “bullying/harassment”, in her mind she intended it to communicate reference to all of those other potential claims and the fact that the same terms in her initiating Application was consistent with her pre litigation usage meant that those terms, “bullying” or bullying/harassment fell to be construed, by the respondent and the Tribunal, when used in her ET1, as having that same privately intended meaning. The Nature of the Amendment[66]Under deletion of;(a) the words “harassment, and ongoing disability-related discrimination” where they appear in the penultimate line of paragraph 23; and of,(b) the words “and making protected disclosures” where they occur in the ante penultimate and penultimate lines of paragraph 24; and of(c) the words “and protected disclosures” where they appear in the heading “2024 – relocation following formal grievance and protected disclosures”, which is located immediately above paragraph 21, paragraphs 21 to 27 inclusive of the “Terms of Proposed Amendment” fall to be read as relating to a potential complaint/complaints of Victimisation in terms of section 27 of the Equality Act 2010., albeit, one still lacking in specification such as to fail to give the respondent fair notice of the case which it has to meet and to allow the Tribunal to determine whether it has Jurisdiction to Consider the complaints contained within those paragraphs, by reason of potential time bar.[67]Subject to the deficiency of want of specification and the potential issue of time bar, those paragraphs 21 to 27 inclusive, under deletion of the passages identified above, fall into the category of an amendment which seeks to add a new claim, that is an express claim of section 27 EqA Victimisation albeit one, notice of which was, were it not for the express matters set out at section 8.1 of the ET1 which included no such claim, might have been inferred from the wording contained at section 8.2, and being a claim arising partly out of the same facts as are given notice of in the ET1 and partly on new facts.[68]The claim of which the paragraphs give notice does not fall to be described as “a new claim entirely unconnected with the original claim.”[69]Otherwise, the terms of the Proposed Amendment, in so far as they do not comprise contentions and submissions, seek to introduce entirely new Heads of Claim arising from substantially new facts and cannot be described as a “relabelling exercise.”[70]The claimant having confirmed that she did not stand upon the apparent complaints of sexual harassment and those claims having been dismissed of consent of parties, the Proposed Amendment, if allowed would have the effect of substituting for the claimant’s original complaint (with the arguable exception of a complaint of Victimisation), new Heads of Claim in terms of section 13, 26 and 20 and 21 of the EqA relating to, because of and in the face of a not previously asserted protected characteristic of Disability. The Amendment if allowed, would result in a substantial alteration of the pleaded case.[71]Although at first glance appearing to be extensive in their terms, those potentially relevant parts of the Proposed Amendment lacks specification variously in terms of(a) the dates of alleged discriminatory acts/detriments,(b) the particular act or omission said to be discriminatory,(c) the identity of the alleged perpetrators and,(d) as to which section of the Equality Act particular events are said to give rise to complaints under; and,(e) in part refer to events which occurred in 2021.[72]Throughout, including at paragraphs 21 to 27 (Victimisation) the Proposed Amendment lacks specification in respect of causal link between the alleged protected act on the one hand and particular detriments on the other, as between alleged less favourable treatment, on the one hand, and the protected characteristic of Disability on the other, and, in relation to Harassment, notice of the basis upon which it is said the conduct related to the now asserted possession of the protected characteristic of Disability. Applicability of Time Limit[73]On the face of the ET1 and of the terms of the Proposed Amendment the last act of discrimination said to be because of or related to disability and the last act of harassment said to relate to disability, given notice of, is that said to have occurred on 20 May 2024 (paragraph 23 of the terms of the Proposed Amendment). The last act of direct discrimination is said to be the claimant’s relocation of place of work. The Amendment does not give notice of any further alleged acts of discrimination because of the protected characteristic of Disability, or of Harassment related to the protected characteristic of Disability. As such, all of the matters relied upon in terms of the Proposed Amendment in support of those new Heads of Claim are matters in terms of which the claimant, as at the date of first presenting her ET1, that is 22 May 2025, lacked, as at the date of the Application continues to lack, Title to Present, and the Tribunal lacked and continues to lack Jurisdiction to Consider, all having occurred a full year before the ET1 was first presented.[74]The Tribunal does not consider the claimant’s explanation, of her own particular internal attribution of different meaning to the terms “bullying” and “harassment” than those which are normally understood, to be an explanation that would amount to “justifiable ignorance” for the purposes of section 123(1)(b) of the Equality Act. No section 123(1)(b) case is advanced by the claimant but rather, only one under section 123(3)(a) which, for the reasons set out above is not effective. Separately, and in any event, let it be assumed that the claimant sought to rely upon section 123(1)(b), no explanation is advanced by the claimant in respect of that one year delay, in raising her claim let it be assumed that the explanation were to amount to justifiable ignorance.[75]The lack of particularisation in respect of the complaints of victimisation focus potential issues of time bar which, for want of specification the Tribunal is unable to determine on the face of the Proposed Amendment, at this juncture in proceedings.[76]The claimant’s Form ET1 as first presented on 22 May 2025 did not include any reference to discrimination relating to any protected characteristic, nor did it make any reference to disability whatsoever, nor to any failure to make adjustments, nor to harassment related to disability (as opposed to sexual harassment) nor, the claimant having expressly listed the “other claims” of which she sought to give notice at section 8.1, was “victimisation” included in that list. The effect of the Proposed Amendment and the Balance of Hardship and Injustice[77]Were the Tribunal to grant Leave in the terms sought the effect;(a) would be to allow substantial substitution of new claims on substantially new facts for the claims originally and apparently given notice of by the claimant.(b) would result in there being included within the pleadings long passages of contention and submission which would have the effect of confusing and substantially widening the scope of the evidential Hearing and, rather than focusing the issues in dispute between the parties, would result in a lack of clarity as to what precisely the issues were and on which statutory foundation the Tribunal’s Jurisdiction to Consider them, stood.(c) would result in a requirement to begin, of new, a case management process, the potentially amended claims being in a substantial number of instances so lacking in specification as to fail to give fair notice of the case to be met and upon which a fair hearing would not be possible.(d) would result, in part, in expanded pleadings which fail to give fair notice of relevant statutory claims under the labels which in its terms the Amendment seeks to attach to the allegations of fact which are contained within the document.(e) would require the respondents to answer a substantially different case from that which they have thus far sought to respond to.(f) would require further specification.(g) would introduce a number of matters which stretch back to 2021 which the respondent would require to investigate prior to seeking to respond to and in respect of which potential issues of the recollection of witnesses may be focused(h) would result in substantial delay to both parties and substantial increased cost to the respondent.[78]On the one hand, refusal of the Amendment in the terms in which it is presented would have the effect of depriving the claimant of the opportunity to present claims which, in their present form enjoyed little reasonable prospect of success, could not properly be responded to and in respect of which a fair hearing would not be possible.[79]On the other hand, the Tribunal considered that allowing the Amendment would cause significant prejudice to the respondent by reason of their being required to respond to substantially new complaints which, as presented were not capable of being fully or properly responded to.[80]Upon an application of their principles set out and approved in Transport and General Workers Union v Safeway Stores Limited under reference to the guidance contained in Selkent Bus Company Limited v Moore, including, amongst others, the factors of; the nature of the amendment, the applicability of time limits and the timing and manner of the Application, and while seeking to balance the injustice and hardship resulting to parties respectively from the allowance or refusal of the Application, the Tribunal determines that the balance of hardship and injustice lies in favour of refusing Leave to Amend in the terms sought.[81]Separately, were the Tribunal to grant Leave to Amend in the terms sought, it would err in law.[82]It is no part of the function of the Tribunal, in adversarial proceedings, to seek to redraft the terms of a Proposed Amendment on behalf of one of the parties. It is however the case that in exercising its discretion to allow or refuse Leave to Amend the Tribunal need not adopt an all or nothing approach.[83]In the case of the earlier identified paragraphs 21 to 27 the Tribunal considered, that under excision of the words set out at paragraphs 58 above, those paragraphs of the Proposed Amendment bear to introduce an express claim of Victimisation in terms of section 27 of the Equality Act 2010. That is a claim which although technically a new claim in the sense that the claimant, having expressly listed, at section8.1 of her initiating Application, all the other claims of which she sought to give notice and did not include in that list any reference to victimisation, is to be taken to have intentionally excluded that complaint, is also a claim which is closely linked, and can be seen to relate to, such Particulars of Claim as are set out at section8.2 of the ET1.[84]As presently presented there are aspects of that new complaint which are lacking in specification such as to inhibit the respondent’s ability to answer it fully. That, however, is a hardship which could be addressed, in the event that Leave to Amend were granted in respect of those paragraphs, by the respondent, seeking the required specification from the claimant in the form of numbered written questions, and by the claimant thereafter providing that specification. That process, when restricted to the single new complaint of Victimisation, would not be unduly onerous or take an inordinate amount of time or resource to address. Although as presently presented, the issue of jurisdiction/time bar in respect of the victimisation claim is unclear, on the authority of Galilee v Commissioner of Police of the Metropolis UKEAT/0207/16, it is open to the Tribunal to exercise its discretion such as to grant Leave to Amend to the claimant in terms of those paragraphs 21 to 27 inclusive of the Proposed Amendment (as excised) but to do so subject to the persisting objections of want of specification and of challenge to the Tribunal’s jurisdiction by reason of potential time bar, which are advanced and stood upon by the respondent.[85]As set out above, while allowing Leave to Amend in such limited scope would result in some delay and additional cost to the respondent and will bring with it the potential to focus Preliminary Issues of lack of fair notice and or jurisdiction which would require to be subsequently resolved, such hardship would be substantially less than that associated with the granting of Leave to Amend in the whole terms sought, on the one hand. On the other hand, were Leave to Amend refused, the claimant having now parted from her previously apprehended complaints of Sexual Harassment might, on one view, be left with no residual complaint and vehicle by which she might bring the matters which she seeks to have addressed to a determinative hearing.[86]In respect of the new complaint of section 27 EqA Victimisation as given notice of in paragraphs 21 to 27 (as excised), the Tribunal considers that the balance of hardship and injustice lies in favour of granting Leave to Amend in the limited terms set out above, and the Tribunal grants leave under reservation of and subject to the respondent’s challenge of lack of specification such as to fail to afford the respondent fair notice of the case which it has to meet and to the challenge to the Tribunal’s jurisdiction by reason of asserted time bar, all as reflected in its determination.