Case No 8001549/2025Venue EdinburghHearing 5 February 2026
Between
Mrs F GibbinsClaimantMatillion LimitedRespondent
Before
Employment Judge R SorrellMr M O’Carroll (instructed by Advocate) for claimantMr J Bryan (instructed by Counsel) for respondentDate 27 March 2026
JUDGMENT
[1]The claimant was a disabled person for the purposes of the Equality Act 2010;[2]The respondent’s application for expenses is refused.
REASONS
[1]The claimant presented a claim for disability discrimination on 19 June 2025.[2]Following a Case Management Preliminary Hearing (“CMPH”) held on 10 November 2025, subsequent correspondence from parties and Tribunal correspondence dated 9 December 2025, this hearing was listed to determine whether the claimant was disabled for the purposes of her discrimination complaints, the respondent’s expenses application and the claimant’s amendment application.[3]Parties lodged a joint bundle of productions and skeleton arguments.[4]As there was insufficient time to hear the amendment application, parties’ views were sought as to whether the application could be dealt with on the papers or a further hearing would be required. The claimant was content for the application to be considered on the papers and the respondent was granted a period of 7 days to confirm their position. On 12 February 2026 the respondent also consented to the application being dealt with on the papers. 1) Disability Status Findings in fact The following facts are found to be proven or admitted.[5]The claimant’s date of birth is 2 July 1974.[6]The claimant was employed by the respondent as a Senior Staff Site Reliability Engineer from 3 January 2024 until 9 April 2025.[7]Following her attendance at the Respiratory Medicine department of the Edinburgh Royal Infirmary on 21 June 2023, the claimant was diagnosed with allergic aspergillosis on 1 August 2023. However, she was not informed about this diagnosis until 22 May 2024.[8]From around late 2023 up to May 2024, the claimant had noticed she was experiencing an increased breathlessness when ascending her stairs at home and generally moving about. She was also more prone to catching colds that developed into flu-like symptoms.[9]The claimant experiences a wide range of symptoms as a result of her impairment. These include increased instances of asthma attacks and shortness of breath, reduced mobility, skin lesions and disfigurement, flu-like illnesses, vision loss, greater sensitivity to other food allergies, fatigue and brain fog. The impact of these symptoms causes her stress and anxiety.[10]The claimant was diagnosed with asthma around 5 years of age which lasted for 3-4 years. On 21 June 2023 she was re-diagnosed with asthma. While the asthmatic symptoms come and go, she has suffered from shortness of breath for the last 10-15 years which has increased due to her impairment.[11]Her symptoms are controlled by prescribed medication which is intended to have a steroidal effect. She would not be able to function without this medication.[12]In addition, her GP advised her to follow the NHS and allergy charity guidance which has resulted in her making significant alterations to her property to reduce symptoms and enact lifestyle changes. These have included constructing a low-allergen room in her home, undertaking a daily routine to ventilate and filter the air in her house, wearing a mask when undertaking housework, a change in eating habits, reducing caffeine intake and doing daily breathing exercises.[13]The effects of her symptoms have caused her fatigue and brain fog which has made it more difficult for her to engage in tasks that she had previously been able to. This has made her stressed and anxious.[14]She became less resilient in coping with the demands of her job and could no longer do her cerebral activities such as playing chess and learning a foreign language.[15]In September 2024 she started to develop lesions on her hands. The lesion in her right hand impacted on her ability to use that hand for typing or using her phone. She also started to lose her fingerprints which meant that typing on her keyboard became more painful and affected the speed with which she could type, which then impacted upon both the quality and efficiency of her work. In March 2025 she was prescribed treatment for the lesions which improved in a fortnight.[16]In December 2024 she started to have problems reading as her right eye would not easily focus and it would take her longer to read and process information which meant she was struggling to carry out the necessary daily aspects of her job during working hours. She became fearful about going outside for a walk or getting some fresh air in case it aggravated her symptoms and she could not enjoy watching television to relax. This in turn meant she was not getting sufficient downtime which made her more pensive about work demands and stress.[17]When she is out of the house, she has to avoid damp rooms and public transport as much as possible. She must be vigilant in not bringing dirt into her house. She has to wear a mask and protective clothing in damp and leafy areas and cannot sit on the grass or interact with small animals. She has difficulty cooking and cannot go to small grocers, cheese shops, handle root vegetables in supermarkets or eat in Asian-style restaurants.[18]If she does not take precautions when in damp areas, she struggles to breathe. On one such occasion, she coughed up blood.[19]The condition has adversely affected her ability to garden and enjoy it as she has to wear a mask and special gloves to protect her from spores. Wearing the gloves makes her apprehensive in case she tears them so it is more difficult to use sharp implements. She cannot wear them for a long time and therefore her gardening time is reduced. They also risk contamination to other parts of her body and she has protocols in place to prevent the allergen being transported into her house. Wearing the mask produces a very humid atmosphere in front of her face making it difficult for her to breathe while doing manual labour. It also accumulates other dirt and debris which exposes her to other forms of contamination. When she had accidental contact with the soil, she developed blistering under her fingernails.[20]The impact of her symptoms has made her feel socially isolated.[21]Parties made submissions by way of reference to the claimant’s disability impact statement as her adopted evidence in chief, her oral evidence and the written submissions contained in their skeleton arguments. These submissions are duly noted and referred to in my conclusion where relevant.[22]Section 6 of the Equality Act 2010 provides a definition of “disability” as follows: (1) A person (P) has a disability if: (a) P has a physical or mental impairment, and (b) the impairment has a substantial and long-term adverse effect on P’s ability to carry out normal day-to-day activities.[23]The burden of proof is on a claimant to show that s/he satisfies the statutory definition of disability.[24]Goodwin v Patent Office 1999 IRLR 4, EAT held that a Tribunal should consider four essential questions in determining disability status. These are as set out under the “Issues to be determined” heading below.[25]Section 212(1) of the Equality Act provides that “substantial” means more than minor or trivial.[26]Schedule 1 para 2(1) of the Equality Act provides that the effect of an impairment is long term if it has lasted for at least 12 months, is likely to last for at least 12 months or is likely to last for the rest of the life of the person affected. In accordance with SCA Packaging Ltd v Boyle [2009] ICR 1056 “likely” means “could well happen.”[27]Para (5) provides that an impairment is to be treated as having a substantial adverse effect on the ability of the person concerned to carry out normal day to day activities if measures are being taken to correct it and but for that, it would be likely to have that effect.[28]The Tribunal must take into account the “ODI” Guidance on the definition of Disability (2011) which stresses that it is important to consider the things that a person cannot do, or can only do with difficulty (B9). This is not offset by things that the person can do. This was confirmed in Aderemi v London and South Eastern Railway Ltd [2013] ICR 391.[29]Day to day activities are things people do on a regular or daily basis such as shopping, reading, watching TV, getting washed and dressed, preparing food, walking, travelling and social activities. This includes work related activities such as interacting with colleagues, using a computer, driving and keeping to a timetable. (Guidance D2 – D7)[30]The Appendix to the “ODI” Guidance provides an illustrative and nonexhaustive list of factors, both in circumstances which if experienced by a person would be reasonable to regard as having a substantial adverse effect on normal day-to-day activities and in circumstances where it would not be reasonable to regard as such.[31]The statutory code of practice issued by the Equality Human Rights Commission (“EHRC”) provides further guidance on the definition of disability which must also be taken into account by the Tribunal.[32]In accordance with Cruickshank v VAW Motorcast Ltd 2002 ICR 729, EAT, the time at which to assess the effect is the date or period in which the alleged discrimination occurred.
Issues to be determined
[33]The Tribunal identified the following issues required to be determined -(i) At the relevant time, did the claimant have a physical or mental impairment?(ii) If so, did that impairment have an adverse effect on her ability to carry out normal day to day activities?(iii) If so, was that effect substantial (as in more than minor or trivial)?(iv) If so, was that effect long term? Conclusion[34]I have carefully considered all the evidence in the round.[35]In view of the claim as pled and in accordance with Cruickshank, (“supra”) I considered the relevant period in which to assess the effect of the impairment in terms of the alleged acts of discrimination is the claimant’s employment with the respondent from 3 January 2024 until 9 April 2025.[36]I found the claimant to be a credible and reliable witness who gave clear and consistent evidence in an honest manner.[37]I am satisfied she has established on the balance of probabilities that she met the definition of disability at the relevant time, in that, her allergic aspergillosis was a physical impairment which had a long term substantial adverse effect on her ability to carry out normal day to day activities. In reaching this view, I have taken account of the following factors.[38]I considered she gave credible evidence regarding the symptoms of this impairment. Whilst it was not in dispute that she was re-diagnosed with asthma in June 2023 and had experienced shortness of breath for 10-15 years, I accepted her evidence as reliable that she had experienced increased instances of breathlessness since late 2023, which could also be attributed to the impairment as it was after she was diagnosed with it.[39]In this regard, I did not accept the respondent’s submission that the authority of Dias da Silva Primaz v Carl Room Restaurants Ltd t/a McDonald’s Restaurants Ltd [2022] IRLR 194 applied in that objective evidence was required to support the claimant’s evidence as to the cause(s) of her shortness of breath. This is because in that case it was held it is an objective question whether the impairment caused the adverse effect, but the claimant’s evidence concerned a symptom of the impairment and was not about an adverse effect of the impairment on her ability to carry out normal day to day activities.[40]I further considered that she gave a reasonable explanation in cross examination regarding her GP medical record of 27 May 2024 that stated she had no specific symptoms resulting from the impairment, in that to the best of her knowledge the record was correct, but that as she had just learnt of the diagnosis, it was possible she had reactions to it that she had not connected to it.[41]I found the claimant’s evidence credible regarding the effect of the impairment on her ability to carry out normal day-to-day activities, in that her impairment had a substantial adverse effect, that was more than minor or trivial.[42]In doing so, I have taken account of the “ODI” Guidance, its Appendix and the “EHRC” statutory code. In particular, I have noted the examples in the Appendix list of factors that would be reasonable to regard as having a substantial adverse effect on normal day-to-day activities. These included difficulties such as using transport due to physical restrictions, ascending stairs or gradients, entering or staying in environments that the person perceives as strange or frightening and persistent low motivation or loss of interest in everyday activities, which I considered were consistent with the claimant’s evidence about the impact the impairment has had on her ability to take public transport, to walk up stairs or inclines, to enter certain areas or places and how the risk of likely allergic reaction has generally demotivated her.[43]I further found the claimant’s detailed evidence in cross examination credible about her impairment having a substantial adverse effect on her ability to gardening. This is because in spite of the steps she has taken to try and mitigate the effects in terms of the mask and particular gloves she has to wear, (as advised by her GP surgery in May 2024), together with the protocols she needs to have in place to avoid transportation of the allergen and contamination, the time span she can do gardening is reduced and she can no longer enjoy doing it as she is apprehensive about the risk of a likely allergic reaction, all of which has created a psychological barrier to her doing it.[44]I am also satisfied that the effects of the claimant’s impairment were long term at the relevant time. This was except for the described impact of the lesions on her hands which were effectively treated in March 2025 and the effects of the problem with her right eye because there was no evidence before me to indicate this was an ongoing symptom.[45]Whilst it could not be demonstrated that the effects had lasted 12 months as at the date of the alleged discriminatory acts due to the fact that the claimant was not diagnosed with the impairment until 1 August 2023 and not informed of it until 22 May 2024, I found on these facts and the circumstances at the relevant time, that in accordance with SCA Packaging, (“supra”) these effects were likely to last 12 months.[46]In view of these findings, I considered that even with the medication the claimant took for her impairment, she met the statutory definition of disability and that therefore without this medication, the effects of her impairment would be substantially worse.[47]For these reasons, I found that the claimant was a disabled person for the purposes of “EqA” at the relevant time. 2) Respondent Expenses Application[48]Prior to hearing submissions for this application, I explained to parties that I was not able to go behind the written orders issued by Employment Judge Jones at the “CMPH” and therefore sought clarification from the respondent’s representative as to the basis on which the respondent was pursuing their application. After taking instructions on that, the respondent withdrew the second limb of their application concerning an alleged failure by the claimant to comply with an order made by EJ Jones at the “CMPH.”[49]The respondent made an application for expenses under Rule 74(2)(a) on the grounds that the claimant (or her representative) has acted unreasonably in either the bringing of the proceedings, or part of it, or the way that the proceedings, or part of it, have been conducted.[50]In particular, the respondent contended that the claimant has acted unreasonably in terms of the late submission of the revised claim without adequate explanation, failing to bring the claim under section 13 of the “EqA” sooner, by subsequently withdrawing that claim and seeking to advance a section 15 of the “EqA” claim and in respect of the preparation of the bundle of productions for this hearing.[51]The application is resisted by the claimant.
Background
[52]The background to this application is as follows.[53]The claimant did not have a legal representative at the time of presenting her claim to the Tribunal on 19 June 2025. Following the instruction of legal representatives, the claimant submitted a revised claim on 5 November 2025, which was 3 working days before the “CMPH.”[54]At the beginning of the revised claim it stated that: “the claimant was subject to discrimination arising out of her disability.” At paragraph 7.1. it stated that: “The claimant was unlawfully dismissed on the grounds of her disability. Specifically, the claimant was dismissed as a consequence of the respondent’s failure to institute, enact or otherwise instigate reasonable adjustments on behalf of the claimant.” It further stated at paragraph 7.6 that: “The claimant was dismissed as a consequence of her disability.”[55]In their response to the revised claim of 7 November 2025, the respondent set out their understanding of the basis of the claimant’s complaint. They also sought confirmation from the claimant that the only complaint presented was a single complaint of failure to make adjustments and that the narrative references to “discrimination arising out of her disability” were not intended to introduce any legal cause of action. They further noted they were prepared to consent to the amendment application subject to the question of time limits being reserved for consideration at the Final Hearing, but that if a further hearing was required to determine the amendment application, it was their intention to make an expenses application at such a hearing.[56]Following the “CMPH” on 10 November 2025, EJ Jones issued a written order that: “The claimant’s agent will confirm by 5pm on 12 November, whether the claimant seeks to argue that her dismissal was an act of disability discrimination and if so, the relevant statutory provision relied upon and whether it accepts that subject to that issue her claims are accurately set out at paragraph 9 in the letter of 7 November from the respondent’s agents.”[57]It was noted in the accompanying “CMPH” note that: “The amendment which was proposed set out that the claimant complained that the respondent had failed to make reasonable adjustments. While the claim refers to the issue of dismissal, it did not make clear whether the reference to dismissal being discriminatory was intended to be as a separate claim or that losses flowing from the alleged failure to make reasonable adjustments arose as a result of the dismissal. The claimant would confirm the position within 48 hours, and the respondent would have 7 days in which to set out any objection to that clarification.”[58]On 12 November 2025 the claimant responded to the order and provided Further and Better particulars of the claim. These confirmed the claimant’s contention that the respondent failed in their duty to make reasonable adjustments in respect of her disability contrary to section 20 of the Equality Act 2010 and referred to the grounds narrated in the revised claim. They further stated: “As a corollary to the failure to provide reasonable adjustment claim, the claimant also contends that she was dismissed as a result of her disability. Accordingly, the dismissal was automatically unfair and amounted to direct discrimination in respect of her disability in accordance with section 13 of the Equality Act 2010.”[59]In their response of 19 November 2025, the respondent stated their understanding of these particulars was that the claimant was not making a section 15 complaint, but was making a section 13 complaint that was a new claim for which the claimant required leave to amend. Further, that the claimant’s (or representative’s) conduct was now such that the respondent had incurred avoidable expenses and an order was therefore sought.[60]On 27 November 2025, the claimant replied to this response. This stated that the disclosure of the particulars of a section 13 claim was entirely in abeyance with the order issued by the Tribunal at the “CMPH” and that as the original claim indicated the claimant had intended to proceed with a disability claim, it was difficult to conceive how the respondent regarded that as a new claim. The claimant also responded to the order sought by the respondent for expenses.[61]On 1 December 2025 the respondent submitted their amended grounds of resistance in accordance with the order issued by the Tribunal at the “CMPH.” These noted that as the claimant had not obtained leave to amend the claim, the respondent did not accept there was any complaint of disability discrimination and therefore did not respond to the proposed complaint, save that it denied the claimant was dismissed because of her disability.[62]On 9 December 2025 Employment Judge Sutherland issued instructions to parties in response to their correspondence and in anticipation of this hearing. In particular, it was noted that the correspondence of 12 and 19 November was being treated as an application to amend by the claimant which was opposed by the respondent. Further, that as the statement in the Further and Better particulars: “The adverse symptoms resulted in the claimant being unable to meet the core objectives timeously and to standard” was indicative of a section 15 rather than a section 13 complaint, the claimant must advise within 7 days.[63]In response to that, on 16 December 2025 the claimant informed the Tribunal that the claimant was no longer insisting on the section 13 claim and that the claimant’s case was restricted to claims under sections 20 and 15 of the Equality Act 2010. Further and Better particulars were submitted in support of that.[64]On 22 December 2025 the respondent set out their position in reply to that and proposed that the section 15 complaint be treated as an application to amend the claim which would be opposed.[65]Parties made oral submissions by way of reference to the detailed written submissions contained in their skeleton arguments.[66]In summary, I have noted the following in respect to each of the alleged instances of unreasonable conduct.[67]The respondent contended that the claimant’s unreasonable conduct began after she obtained professional representation, in that although the firm indicated on 4 September 2025 that it intended to prepare a revised ET1, it did not do so until 3 working days before the “CMPH” and the lateness of that was not adequately explained. The respondent acknowledged that the claimant’s representative had suffered a collapsed lung in August 2025 which had led to the postponement of the “CMPH” listed on 8 September 2025.[68]The claimant provided an explanation for the timing of the revised claim in their email of 5 November 2025. This was that her representative had an extended convalescence period which impacted on his ability to attend to his work commitments and that there had been some continuing issues in dealing with workflows.[69]The respondent submitted that the claimant’s failure to intimate a section 13 complaint in the revised claim or raise it at the “CMPH” was unreasonable and no reason had been given as to why the claimant did not seek to advance this complaint before the Further and Better particulars.[70]In response, the claimant submitted that the reason for not intimating the section 13 complaint sooner was that litigation is not a straightforward process, a claim can take time to be formulated and it was always the case that the claim was based on disability discrimination.[71]The respondent further submitted that the claimant’s conduct was again unreasonable in terms of their response of 16 December 2025 to EJ Sutherland’s instructions as to whether the statement in the Further and Better particulars was a section 15 rather than a section 13 complaint, in that the claimant withdrew the section 13 complaint and confirmed she was pursuing a section 15 complaint. This is because it did not accept the claimant’s position that a section 15 complaint was always “in gremio” to the section 20 complaint as it was not pleaded in the revised claim and that if a section 15 complaint was there all along, the claimant would have said so.[72]In response, the claimant submitted that the claim was originally raised without representation and once instructed, her legal representative in good faith attempted to narrow the issues between the parties. Whilst there had undoubtedly been a degree of confusion around the totality of the claim and the position regarding the section 13 and 15 claims was regrettable, there was no longer any such uncertainty.[73]In addition, the respondent submitted that the claimant’s unreasonable conduct continued and drove up the respondent’s costs for this hearing, in terms of the preparation and timing of the joint bundle of productions, which did also not include vouched evidence of the claimant’s ability to pay expenses as directed by EJ Sutherland.[74]In their correspondence of 23 January 2026, the claimant’s representative stated that his understanding the respondent would prepare the joint bundle for this hearing was an oversight and not a wrongful attempt to have the respondent incur cost unnecessarily. The claimant further submitted that there was no direct order issued by EJ Sutherland in respect of the claimant’s ability to pay, it was premature to provide such evidence at this stage, but that it will be provided if an order of expenses is to be made.[75]Rules 73-77 of the Employment Tribunal Procedure Rules 2024 (“ET Rules”) sets out the definition of costs and preparation time orders, when an order may or shall be made, the procedure and the amount of a costs and a preparation time order.[76]Rule 74(2)(a) provides that the Tribunal must consider making a costs order or a preparation time order where it considers that a party (or that party’s representative) has acted vexatiously, abusively, disruptively or otherwise unreasonably in either the bringing of proceedings, or part of it, or the way that the proceedings, or part of it, have been conducted.[77]Rule 74(3) provides that the Tribunal may also make a cost or preparation time order on the application of a party where a party has been in breach of any order, rule or practice direction or where a hearing has been postponed or adjourned.[78]Under Rule 82, in deciding whether to make such an order, and if so, the amount of any such order, the Tribunal may have regard to the paying party’s ability to pay.[79]Expenses are not normally awarded in the Employment Tribunal; Gee v Shell UK Ltd [2002] [2003] IRLR 82. They may however be awarded if to do so falls within the terms of the “ET Rules.” It is an exercise of discretion which includes taking into account the overriding objective in Rule 2. In Barnsley Metropolitan Borough Council v Yerrakalva [2012] IRLR 78 the Court of Appeal stated: “The vital point in exercising the discretion to order costs was to look at the whole picture of what happened in the case and to ask whether there had been unreasonable conduct by the claimant in bringing and conducting it; if there had been such conduct, the tribunal should identify it, what was unreasonable about it and what effects it had.” The purpose of the award of expenses is to compensate the party in whose favour the award is made and not to punish the paying party.[80]McPherson v BNP Paribas [2004] ICR 1398 held that a Tribunal should take into account the nature, gravity and effect of the party’s unreasonable conduct. In Osannaya v Queen Mary University [2011] EAT 0225/11 it was held that such an order was exceptional and the use of the word “unreasonable” in the Rule led to a high threshold to be passed if making such an order.[81]As stated in Willis v GWB Harthills LLP &Oths [2025] EAT 79, the application of these rules can be split into 3 stages; is there conduct that could warrant making a costs order (“threshold conduct”), if so, should an award of costs be made (“the discretionary decision”), if so, what amount of costs should be awarded (“the quantum decision”).
Conclusion
[82]I have carefully considered all the submissions in the round and applied the relevant law. In doing so, I noted that expenses in employment tribunals are the exception rather than the rule and that the use of the word “unreasonable” in Rule 74(2)(a) of the “ET Rules” led to a high threshold to be passed if making such an order.[83]I first proceeded to decide whether the claimant (or her representative’s) conduct could warrant making an expenses order.[84]I found that the claimant’s conduct has not met the required threshold in that she (or her representative) has acted unreasonably in terms of Rule 74(2)(a) of the “ET Rules.” In reaching this view, I have taken account of the following.[85]I considered the claimant’s representative gave a reasonable explanation for the timing of submission of the revised claim in light of his ill health and the resulting impact on his ability to attend to work commitments.[86]Whilst it was entirely legitimate for the respondent to question why the section 13 complaint was not raised sooner by the claimant’s representative, I considered it was clear from both the original and revised claim that the claimant’s complaint was based on disability discrimination. Indeed, it was for this reason that EJ Jones sought confirmation on whether the reference to dismissal being discriminatory in the amendment proposed (i.e. in the revised claim) was intended to be as a separate claim from the failure to make reasonable adjustments claim or not, and if so, the relevant statutory provision relied on.[87]In light of the history of the proceedings, I agreed with the respondent’s submission that upon withdrawing the section 13 complaint and confirming the section 15 complaint, it was implausible for the claimant to suggest that a section 15 complaint was always part and parcel of the claim, because the claimant had not previously said so, despite having opportunities to do so.[88]However, though I considered the respondent’s evident frustration at the claimant’s lack of certainty about the statutory basis of her claim was both understandable and reasonable, I did not accept that these actions amounted to unreasonable conduct and that the purpose of them was to drive up the respondent’s costs.[89]By their own admission, the claimant accepted there had been a degree of confusion around the totality of the claim which was regrettable and was now resolved. I considered this confusion was apparent and consequently the reason for EJ Sutherland seeking further clarification from the claimant on 9 December 2025 as to whether the statement in the Further and Better particulars was a section 15 rather than a section 13 complaint.[90]As to the preparation for this hearing, the claimant’s representative accepted that his understanding the respondent would prepare the bundle for this hearing, was an oversight as it was contrary to the order issued by EJ Jones at the “CMPH.” However, whilst I did not find it unreasonable conduct, I considered it less than satisfactory that the claimant omitted to provide evidence of her ability to pay an order for expenses as directed by EJ Sutherland without explanation prior to this hearing.[91]As I found that the claimant’s (or her representative) conduct has not met the threshold that could warrant an expenses order, I have not proceeded to consider the application further.[92]For these reasons, the respondent’s application for expenses is refused. 3) Claimant Amendment Application[93]The claim as currently pled is a failure to make reasonable adjustments in response to the claimant’s disability under section 21 of “EqA” in compliance with the duty under section 20 of “EqA.”[94]On 16 December 2025, the claimant provided confirmation of the section 15 “EqA” complaint accompanied by the second Further and Better particulars.[95]The claimant sought to amend the claim in the following terms: “Section 15 “EqA” protects the claimant from discrimination arising from disability. The claimant was subject to unfavourable treatment by the respondent because the respondent dismissed her. She was dismissed due to something arising in consequence of her disability. The something arising was her difficulty in meeting the demands which her duties at work place upon her, in particular in connection with the completion of the Kubernetes upgrade project and meeting the original deadline connected with that project. The respondent cannot show that the unfavourable treatment (dismissal) was a proportionate means of achieving a legitimate aim.”[96]The respondent resisted the application[97]Parties agreed the application could be decided on the basis of the written submissions provided. These submissions are duly noted and referred to in my conclusion where relevant.[98]The leading authority of Selkent Bus Co Ltd v Moore [1996] ICR836 EAT in respect of the approach to be taken in amendment applications provides that a Tribunal must carry out a careful balancing exercise of all the relevant factors having regard to the interests of justice and to the relative hardship that will be caused to parties by granting or refusing the amendment. The factors for consideration include the nature of the amendment, the applicability of time limits and the timing and manner of the application.[99]The case of Vaughan v Modality Partnership [2021] ICR535 EAT held that the real practical consequences of allowing or refusing an amendment should underlie the entire balancing exercise.
Conclusions
[100]I have carefully assessed parties’ submissions made and in doing so, carried out the balancing of justice exercise in terms of the relevant factors and in accordance with the law.[101]I considered that the section 15 claim of discrimination arising from disability is a new cause of action with a separate statutory provision. That said, I accepted the claimant’s submission that it is based on the same facts as already pled and it was not in dispute that the claimant was dismissed by the respondent as a result of failures in her performance. Therefore, if the amendment is permitted, the new matters in dispute would be limited to whether the failures in performance arose because of the claimant’s disability and if so, whether the respondent is able to show that the treatment (i.e. the dismissal) was a proportionate means of achieving a legitimate aim.[102]The respondent submitted there would be a material expansion of the evidence and the factual and legal enquiry in respect of these two matters if the amendment is permitted as the causation issue will require medical evidence and the likely ‘objective justification’ defence would be a wholly new area of legal and factual enquiry.[103]I accepted a further degree of enquiry may be required in respect of these two matters. However, as it would be for the claimant to adduce any medical evidence and the respondent has not detailed any enquiries it would require to undertake, I could not be satisfied that in terms of Abercrombie and ors v Aga Rangemaster Ltd 2014 ICR 209 CA, it was likely such enquiries would amount to undertaking substantially different areas of enquiry from the enquiries already made in respect of disability status and the sections 20 & 21 complaints.[104]The respondent further submitted that the claimant has given no good reason why in terms of Vaughan (“supra”), she “needs” a section 15 complaint as she is already claiming losses which flow from her dismissal in terms of the sections 20 & 21 complaints.[105]Whilst the respondent is correct in terms of the losses already claimed from the dismissal, I am persuaded by the claimant’s submission that refusal of the amendment would unfairly limit her case, which was consistent with Vaughan (“supra”), in that it will prevent the claimant from getting what she needs. This is because if at the Final Hearing the Tribunal decided the respondent did not fail to make reasonable adjustments but that the claimant was dismissed by reason of a failure in performance arising from her disability, she would be deprived of a remedy connected with her dismissal in those circumstances.[106]As the amendment is a new cause of action there is a time bar issue in that the proposed amendment was submitted on 16 December 2025 which is 8 months after the claimant’s dismissal on 9 April 2025. This is a factor that weighs against the claimant.[107]The claimant’s position is that this can be decided at the Final Hearing and that as it forms part of the overall claim for disability discrimination, it would be just and equitable for time to be extended and the claim be allowed to proceed. In contrast, the respondent disputes it would be just and equitable to extend time by such a long period, especially when the claimant has been represented since August 2025 and has previously declined several opportunities to advance a section 15 complaint.[108]In terms of the timing of this application, I noted that as it is being heard at the same time as the preliminary issue of disability status and a Final Hearing has not yet been set down, I did not consider that if the amendment is permitted it would protract these proceedings.[109]The respondent may incur additional costs if the amendment is permitted because the grounds of resistance will need to be amended. However, I noted that any costs for the revision of that would likely be limited to the two new matters arising from the section 15 claim. Furthermore, I was not able to consider whether any such practical prejudice suffered by the respondent could be ameliorated by an award of costs as there was no evidence before me of the costs involved or of the claimant’s ability to pay them. This does of course not preclude the respondent from making an expenses application in the future should they wish to.[110]In weighing all these factors in the round, I am of the view that on balance it is in the interests of justice to allow this application and in accordance with the overriding objective to deal with cases fairly and justly. This is because I am satisfied that the claimant will suffer a greater injustice and hardship in the amendment being refused than the respondent will by it being refused.[111]In particular, in view of the claim and response as currently pled, the new matters in dispute arising from the section 15 claim are limited. Therefore, any revisions to the grounds of resistance and additional costs incurred by the respondent are also likely to be limited and I was not satisfied the respondent would require to undertake substantially different areas of enquiry. I found that the claimant needs this complaint as her case would be unfairly restricted without it, that the claim is still in its preliminary stages and the amendment would not protract these proceedings.[112]Whilst I have noted that in granting the amendment there is an outstanding time bar issue, in accordance with Galilee v Commissioner of Police of the Metropolis [2018] ICR 634, the question of time limit is not deemed to have been determined by this grant of leave to amend and is therefore reserved for determination by the Tribunal at the Final Hearing.[113]For these reasons the claimant’s application to amend the claim is allowed. Further procedure[114]Parties shall provide their availability for a Final Hearing with an estimated duration up to and including August 2026, within 7 days of receipt of this decision.