“ Procedure and practice for amendments The rival submissions of the parties state the position at opposite extremes. Before we state our conclusions on this appeal, it may be helpful to summarise our understanding of the procedure and practice governing amendments in the industrial tribunal. (1) The discretion of a tribunal to regulate its procedure includes a discretion to grant leave for the amendment of the originating application and/or notice of appearance: see rule 13 of Schedule 1 to the Regulations of 1993 and Cocking v. Sandhurst (Stationers) Ltd. [1974] I.C.R. 650, 656G-657D. That discretion is usually exercised on application to a chairman alone prior to the substantive hearing by the tribunal. … (3) Consistently with those principles, a chairman or a tribunal may exercise the discretion on an application for leave to amend in a number of ways. (a) It may be a proper exercise of discretion to refuse an application for leave to amend without seeking or considering representations from the other side. For example, it may be obvious on the face of the application and/or in the circumstances in which it is made that it is hopeless and should be refused. If the tribunal forms that view that is the end of the matter, subject to any appeal. On an appeal from such a refusal, the appellant would have a heavy burden to discharge. He would have to convince the appeal tribunal that the industrial tribunal had erred in legal principle in the exercise of the discretion, or had failed to take into account relevant considerations or had taken irrelevant factors into account, or that no reasonable tribunal, properly directing itself, could have refused the amendment: see Adams v. West Sussex County Council [1990] I.C.R. 546. (b) If, however, the amendment sought is arguable and is one of substance which the tribunal considers could reasonably be opposed by the other side, the tribunal may then ask the other party whether they consent to the amendment or whether they oppose it and, if they oppose it, to state the grounds of opposition. In those cases the tribunal would make a decision on the question of amendment after hearing both sides. The party disappointed with the result might then appeal to this appeal tribunal on one or more of the limited grounds mentioned in (3)(a) above. (c) In other cases an industrial tribunal may reasonably take the view that the proposed amendment is not sufficiently substantial or controversial to justify seeking representations from the other side and may order the amendment ex parte without doing so. If that course is adopted and the other side then objects, the industrial tribunal should consider those objections and decide whether to affirm, rescind or vary the order which has been made. The disappointed party may then appeal to this appeal tribunal on one or more of the limited grounds mentioned in (3)(b) above. (4) Whenever the discretion to grant an amendment is invoked, the tribunal should take into account all the circumstances and should balance the injustice and hardship of allowing the amendment against the injustice and hardship of refusing it. (5) What are the relevant circumstances? It is impossible and undesirable to attempt to list them exhaustively, but the following are certainly relevant: (a) The nature of the amendment. Applications to amend are of many different kinds, ranging, on the one hand, from the correction of clerical and typing errors, the additions of factual details to existing allegations and the addition or substitution of other labels for facts already pleaded to, on the other hand, the making of entirely new factual allegations which change the basis of the existing claim. The tribunal have to decide whether the amendment sought is one of the minor matters or is a substantial alteration pleading a new cause of action. (b) The applicability of time limits. 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 that complaint is out of time and, if so, whether the time limit should be extended under the applicable statutory provisions, e.g., in the case of unfair dismissal,section 67 of the Employment Protection (Consolidation) Act 1978 . (c) The timing and manner of the application. An application should not be refused solely because there has been a delay in making it. There are no time limits laid down in the Regulations of 1993 for the making of amendments. The amendments may be made at any time - before, at, even after the hearing of the case. Delay in making the application is, however, a discretionary factor. It is relevant to consider why the application was not made earlier and why it is now being made: for example, the discovery of new facts or new information appearing from documents disclosed on discovery. Whenever taking any factors into account, the paramount considerations are the relative injustice and hardship involved in refusing or granting an amendment. Questions of delay, as a result of adjournments, and additional costs, particularly if they are unlikely to be recovered by the successful party, are relevant in reaching a decision.” 22. The EAT subsequently, in TGWU v Safeway (UKEAT 0092/07/LA Underhill J, Judgment6 June 2007 ), pointed out that, in the last sub-paragraph of the judgment in Selkent which is quoted above, Mummery J should not be taken to have been deciding that, in the case of an application to amend to add a fresh claim which was out of time and time did not fall to be extended, there was an absolute rule which did not permit such amendment; whether the Claimant was out of time was said to be a factor, albeit an important and potentially decisive factor, in the exercise of the Tribunal’s discretion. At paragraph 13 of his judgment, Underhill J addressed the often argued point as to whether what was sought to be introduced by amendment could be categorised as a clear re-labelling of that already pleaded or was a wholly new claim. He said: “The paragraph goes on to discuss precisely how the line between a “wholly new claim” and a mere “change of label” is to be drawn. Although not explicit, the implication of the passage as a whole is that if the out-of-time claim cannot be categorised as a mere re-labelling of facts already pleaded then as a matter of law the amendment cannot be permitted. If that is indeed its effect, I agree with Mr. Rose that it goes too far. I do not wish to cast any doubt on the proposition that amendments that involve mere re-labelling of facts already fully pleaded will in most circumstances be very readily permitted: there is plenty of authority to this effect, fully cited in Harvey . But, as I have sought to show, Kelly and Selkent are inconsistent with the proposition that in all cases that cannot be described as "re-labelling" an out-of-time amendment must automatically be refused: even in such cases the Tribunal retains a discretion. No doubt the greater the difference between the factual and legal issues raised by the new claim and by the old the less likely it is that it will be permitted, but that will be a discretionary consideration and not a rule of law.” 23. These principles apply to this appeal. Grounds Category 1(a) 24. This category of the grounds of appeal applies to paragraphs 5, 8, 10, 25 and 34 of the Amended Particulars document; the essence of the ground of appeal is that the Employment Judge applied the statutory time limits to the disclosures relied upon rather than to the detriments which the Claimant alleged she had suffered by reason of making those protected disclosures. Miss Robertson, on behalf of the Claimant, began her submissions on this category by referring me to the decision of the Court of Session in Miklaszewicz v Stolt Offshore Ltd ([ 2002] IRLR 344 ). In that case, disclosures relied on by the Claimant occurred before, but the detriment relied upon dismissal, occurred after the introduction into law of the remedies for detriment, and in this case dismissal, allegedly caused by the disclosures. The Employment Tribunal concluded that it did not have jurisdiction to consider the Claimant’s complaint. That conclusion was held to have been in error by the EAT; and that decision was upheld by the Court of Session. At paragraph 19 of its Judgment the Court of Session said: “… The principal purpose for which the 1998 Act was passed was, as its long title makes clear, to protect individuals who make certain disclosures of information in the public interest. The main protection conferred on such an individual is the protection against unfair dismissal provided by [section] 103A of the 1996 Act. An employee who, in terms of that section, is unfairly dismissed may apply under [section] 128 for interim relief, and under [section] 129 this may take the form of an order for the continuation of his contract of employment. Clearly, therefore, the point of time which has greatest significance for the purposes of the legislation is that at which the employer dismisses the employee. This is because it is the dismissal which triggers the employee's entitlement to invoke the statutory remedies conferred by the provisions of the 1996 Act inserted by the 1998 Act … The making of the disclosure requires to be considered at that point of time; and it is then that the criteria for treating it as a protected disclosure are applicable, on a proper construction of the relevant statutory provisions. While, therefore, an event which has taken place in the past may be relevant for the purpose of establishing that a dismissal has been unfair, the legislation is not in our opinion truly to be regarded as retrospective. What is affected by the legislation is not the original act of the employee in making the disclosure, but the act of the employer in dismissing the employee. …” 25. I do not doubt that the general principle there set out applies to detriment said to have been caused by a protected disclosure other than dismissal; and I accept that, in considering time limits in a protected disclosure case, the Tribunal should consider the point of time at which the alleged dismissal or detriment is said to have occurred and not the point of time at which the disclosure or disclosures relied upon were made. 26. Mr Beever submitted that the Employment Judge should not be taken to have excluded the relevant paragraphs solely on the basis of time limits; but, as an experienced Judge, she must be taken to have been fully aware of the generality of the discretion which she was called upon to exercise in deciding whether to permit the Claimant to add new claims to the ET1; and she demonstrated that she was exercising or proposing to exercise a general discretion at paragraph 19 of the Decision in which, in the course of her self-directions, she said: “… In the event that I considered new allegations do amount to a new claim, I have to consider whether I will allow the claimant to amend her claim and have regard to the question as to whether the claim is within time or out of time that are determined.”
“… I am required to consider whether the proposed amendments falls [sic] within the existing claims or constitutes an entirely new claim.” 27. He accepted that he had not referred the Employment Judge to Miklaszewicz , but he had submitted that she had a general discretion, which was not limited to considerations of time limits and had submitted that she should exercise her discretion against the Claimant, who had had the benefit of legal advice in the formation of the FI, which took the extent of the allegations well beyond those in the ET1, that the Claimant who had had one “bite of the cherry” when she put forward the FI should not be permitted to rely on new allegations put forward seven-and-a-half months later by a further and substantially developed “bite of the cherry”
“37. Paragraph 5. The claimant asserts for the first time that she reported information to Mr McCormack, the elected staff governor serious matters of concern on13 May 2009 . The claimant has made no reference to that discussion in her ET1, at any of the case management discussions nor in the further information provided (page 59a-59f). The disclosure has not previously been referred to, it is not one of the original heads of claim. To the extent that the claimant suggests this is a new alleged protected qualifying disclosure the claimant has not previously asserted that that was a disclosure qualifying for protection in respect of which she has been caused to suffer detriment and such a complaint is out of time and there are no grounds upon which I consider it was not reasonably practicable for the claimant to make such an assertion before March 2012 and the claimant’s complaint that she has been subject to victimisation or caused to suffer detriment because of that disclosure is one that is out of time. It goes beyond the pleaded case.”
“I have considered the claimant’s suggestion that she did not appreciate that the disclosures that she asserts were made to Mr McCormack was not one she appreciated to be a qualifying disclosure. Taking that view at face value, any complaint that the claimant suffered the detriments that she asserts she did contained in the original claim form were also as a result of a protected disclosure to Mr McCormack ought to have been presented as soon as was reasonably practicable after she came to that knowledge. I am mindful that after being informed by an NUT representative, that such a disclosure was one which he or she considered was qualifying the protection, the claimant had the benefit of legal advice and did not seek to make any amendments sooner than6 March 2012 . The claimant has confirmed that she had no compelling reasons which prevented her from presenting a complaint sooner than 6 March and in the circumstances any complaints in respect of detriments flowing from an alleged qualifying disclosure to Mr McCormack are not presented within time and are not accepted as amendments to the complaint in respect of being a qualifying disclosure in respect of alleged detriments. The claimant has not satisfied me it was not reasonably practicable to present the claim in time. The claimant was advised by her union when presenting her complaint, has had the benefit of counsel in the intervening period, and even if it was not reasonably practicable to present a complaint before an NUT representative expressing an opinion in November 2011 she did not present the amendment within such further period as was reasonable.” 31. In my judgment the Employment Judge was plainly, in that paragraph, exercising a general discretion, not only in relation to the late allegation of disclosure to Mr McCormack. Although because Miklaszewicz was not cited to her, she may have made an error in paragraph 37, her decision was not essentially or solely founded on the lateness of the allegation of disclosure to Mr McCormack. She reached the same decision, applying her general discretion in relation to the detriments said to have flowed from that additional disclosure. That exercise of discretion has not been shown to have been perverse or outside the range of options permissibly open to her. Paragraph 8 32. Paragraph 8 of the AP contains two allegations: the first is that the Claimant had reported to Mr Rogers what she had previously reported to Mr McCormack; the second is that that caused her to be victimised in the manner set out. There is nothing new in the first allegation; and that the Claimant was being deliberately ignored as a result appears in the ET1. The Employment Judge did not refer to this paragraph in her decision; I cannot find any reference to it in the Employment Judge’s reasons and suspect - for she was meticulous in dealing with each contentious point in some detail - that it found its way into the list of paragraphs which were not permitted to proceed, at paragraph 4(1) of the formal judgment at the beginning of the decision, by accident. Putting that suspicion aside and looking at the decision in a more formal manner, the exclusion of that paragraph is not reasoned and cannot stand. In any event the allegations in it do not appear to me to go beyond a further description of what had already been pleaded in outline elsewhere. Paragraph 10 33. In paragraph 10 of the AP, the Claimant set out her account of her meeting with Mr Smalling, to whom, according to the ET1, she had made her second disclosure on12 July 2009 ; she alleged she had informed him of acts of harassment, discrimination and less favourable treatment towards Mr McCormack. She said that confidentiality had not been maintained and that as a result she was herself ignored and adversely treated by her colleagues. None of that was said to have fallen outside the ET1 or FI. What was new, as the Employment Judge said, at paragraph 38, was an allegation that Mr Smalling himself was terse and hostile and left the Claimant feeling victimised. At paragraph 62.2 the Judge declined to permit the Claimant to amend to make that new allegation on the basis that, to the extent that the allegation was of detriment caused by Mr Smalling, the Claimant had failed to explain why it had not been reasonably practicable to present that claim earlier. Miss Robertson submitted that the Judge had erred by deciding to exclude paragraph 10 of the AP on the basis of an absolute rule that an amendment should not be permitted if it was sought to be made outside the primary time limit and not within a reasonable time thereafter, and in failing to consider whether the act of Mr Smalling was part of a series of acts. I will return later to the second of those two points; the answer to the first is to be found, in my judgment, at paragraphs 44 and 45 of the decision, in which the Judge said: “44. Subject to my findings above paragraphs 8, 9, and 11 of the Amended Particulars reflect in large part events set out in the essential facts contained in the ET1 with one significant exception. Paragraph 10 refers to the claimant having a meeting with George Smalling on12 July 2009 . The claimant has made no suggestion in her claim form nor in the further particulars provided on11 July 2011 any suggestion that Mr Smalling’s conduct towards the claimant was a detriment. 45. I am mindful that the claim form was presented in November 2010 and some 16 months thereafter a suggestion is raised for the first time that Mr Smalling has behaved in a way that causes the claimant to suffer a detriment.” 34. In those paragraphs the Judge can be seen to have looked at the circumstances in the round and to have concluded that the new allegation was made too late. The references in her judgment to the fact that the Claimant had had professional assistance in relation to the FI - e.g. at paragraphs 59 and 60 - should also be regarded as part of the Judge’s decision on this issue; her reasons must be viewed as a whole. The principle in Miklaszewicz , upon which this category of the Claimant’s criticisms of the Judge’s decision is founded, does not have any bearing on this paragraph; the disclosure and Mr Smalling’s adverse treatment of the Claimant are said to have occurred at the same time; and in any event, in my judgment, the Judge exercised her discretion in relation to paragraph 10 in a manner which was open to her. Paragraph 25 35. Next in this category is paragraph 25, in which the Claimant asserts that she had submitted a complaint on28 June 2010 to the chair of the governors that she had been singled out for demotion and reduction in pay in January of that year because she had made protected disclosures and because of her involvement in trade union activities; but, she asserted, the Chairman omitted to respond or grant redress promptly or in a reasonable time. This allegation was not in the ET1 or in the FI. 36. The Judge addressed this paragraph, together with paragraphs 23, 24 and 26, at paragraph 62.7 of her Decision. She said of all those paragraphs that the Claimant had not satisfied that her that it was not reasonably practicable to present the claims in those paragraphs in respect of detriment within time; and the proposed amendments were not allowed. Miss Robertson makes three points about this paragraph, namely: (1) the detriment alleged in paragraph 25 was already pleaded, (2) what was alleged here was a disclosure to which the principles in Miklaszewicz applied, and (3) the series of acts point. She went on to accept that the Claimant was not excluded from seeking to establish that nothing was done about her complaints; and if the complaint to the Chairman of the governors was being put as yet another protected disclosure (which was far from clear) and, therefore, the Miklaszewicz principles did apply, the time limit applied to any detriment specifically said to arise from such disclosure; and the Judge was entitled to see this as another complaint of detriment made long after both the ET1 and the FI which could and should have been put forward earlier, as, when her Decision is read as a whole, she plainly did. It is to be noticed that the Judge, in the last sentence of paragraph 62.7, was considering the relationship between the time limits and the allegations of detriment and not the new allegation of disclosure. Paragraph 34 37. Here the Claimant asserts that she submitted a complaint to the Respondent about the appeal procedure held on24 September 2010 , in particular about not being allowed to be accompanied by a colleague of her choice, and did not receive prompt redress. In her decision the Judge did not expressly address this paragraph, save in passing at paragraph 54. However, the same allegation appears at paragraph 21 of the FI and survived the PHR. Thus, the perhaps accidental inclusion, at paragraph 34 of the AP in the list of paragraphs in that document excluded by the Judge, can have no effect on the Claimant’s claim; and I decline to spend more time on what appears to be a wholly academic issue, to which, incidentally, the Miklaszewicz principle would appear to have no part to play. Category 1(b) 38. The ground permitted by Keith J to proceed to a Full Hearing in respects of paragraphs 11, 13, 15, 21, 24 and 33 of the AP was that the allegations in those paragraphs were not new but set out evidence to be adduced in support of the existing allegations. Paragraph 11 39. In this paragraph of the AP, the Claimant asserts that Ms Steele of the Respondents had on29 July 2009 (1) entered the Claimant’s work area and told her that there had been complaints about her and that she had created an atmosphere in the office, and (2) she was required to remain behind after her colleagues had left at the end of the day and to write letters to students in her own time. The Judge said at paragraph 39 that the date of that event was 31 July and that the first allegation was included in the FI (at paragraph 5); but, in paragraph 40, the Judge said, accurately, that the second allegation was a wholly new allegation of detriment. Miss Robertson submits that that detriment fell within the general terms of the detriments described in the ET1; I have to say that I am far from sure that it did; but even if it did, the Claimant had been ordered to provide particulars, had done so in the FI and had not put this detriment forward in the FI. The Judge was, in my judgment, entitled to treat this not as merely an expression of evidence in support of other allegations but as a belated complaint of a specific detriment; and the ground of appeal which has to be considered under this category does not get the Claimant home. Paragraph 13 40. In paragraph 13 of the AP, the Claimant claims to have been intimidated by the Respondents into not attending a trade union meeting on9 November 2009 . The issue of the Judge’s decision as to the Claimant’s case that she suffered detriment as a result of trade union activities will be addressed later, under Category 2. As to the Category 1(b) ground there was no reference to this new complaint in the ET1 or the FI. The Judge was entitled to treat this as a new allegation made out of time, as she did. She considered it at paragraph 42 of her Decision. I see no reason why she must have treated this as only evidence in support of other allegations. While the AP bears resemblance to a witness statement, it is described as “Amended Particulars” intended “(i) get the issues into shape to progress to a hearing; and (ii) to amend/ add causes of action” and were put forward as compliant with the orders for particulars made earlier. Paragraph 15 41. In this paragraph, the Claimant alleges that on15 December 2009 Ms Feeney (temporary Deputy Head Teacher) made untruthful and disparaging remarks about the Claimant to Ms Higgins in order to discredit and stigmatise the Claimant because of her earlier disclosures and because of her trade union activities. Here too I put the trade union activities part of paragraph 15 aside for the moment; of greater significance is that the events set out in paragraph 15 can be seen to have been included in the FI at paragraph 8, albeit in different words. Thus, leaving aside the trade union activities issue, the failure of this paragraph in the AP to survive the PHR does not adversely affect the Claimant’s case; and again I decline to become involved in an academic argument about this paragraph. Paragraph 21 42. I do not need to say much about this paragraph in which the Claimant set out a complaint of detriment occurring on11 February 2010 . The Judge justifiably described the allegation as new; it was not merely a recital of evidence in support of another allegation or allegations (see paragraph 47 of the Decision). Paragraph 24 43. This paragraph raised an incident on18 May 2010 which does not appear in the ET1 or FI. The Judge said, at paragraph 48 of her Decision, that this was a new claim; she was justified in so doing. The last two sentences of that paragraph recite the Claimant’s general complaint about detriment caused by her making disclosures. The disappearance from the Claimant’s case of two sentences as a result of the Employment Judge’s Decision as to paragraph 24 can make no possible difference to what she can put forward evidentially in support of her surviving allegations or the way in which she can do so at trial. Putting aside those sentences, this paragraph was far from simply evidential; it raised new allegations. Paragraph 33 44. Finally in this category paragraph 33 has to be considered. The Claimant there asserted that on24 September 2010 after her appeal hearing she was told on returning to the building by a member of management in a terse manner “Be careful, be very careful what you’re doing Teresa”
“Paragraphs 38 to 46 of the claimant’s Amended Particulars she seeks to extend the complaints against the respondent. The particulars presented on6 March 2012 and the matters complained of relate to the respondent’s treatment of the claimant following her return to work on22 August 2011 . The complaints relate to matters arising from her return to work and a grievance raised on11 October 2011 (paragraph 44). The claimant’s sickness absence was an intervening event. I do not consider that the matters complained of by the claimant which relate to further disclosures and detriments allegedly flowing therefrom are part of a continuing course of conduct. The claimant at this hearing remains employed by the respondent and any complaints relating to return to work arrangements, grievances in that regard and later allegedly protected disclosures and detriments are matters for separate complaints. I do not consider it to be consistent with the overriding objective for such complaints to be heard with this complaint, subject to the amendments to what I have considered to be acceptable.” 60. Miss Robertson submitted that the Judge should have regarded these new allegations as part of the continuing course of conduct as had existed before she went off work, or as part of the same series of acts, and should have allowed these allegations to stand by way of amendment. The error, she argued, lay in the Judge’s treating the sickness absence as an intervening event which prevented such continuity. She took me back to Hendricks , in which Mummery LJ, at paragraph 48, had said that a sickness absence of a year did not necessarily rule out the possibility of continuing discrimination, and to Tait v Redcar and Cleveland Borough Council (EAT 0096/08 Underhill J, Judgment2 April 2008 ) and Nageh v David Game College Ltd (EAT 0112/11 HHJ Richardson, Judgment22 July 2011 ) as support for her argument. 61. In Tait , the EAT held that the suspension of the Claimant for over a year was “an act extending over a period” within the meaning of section 48(3)(a) of the 1996 Act (although that did not avail the Claimant because he had not presented his claim timeously after the suspension had ended); but the present case does not concern the issue which was considered in Tait ; the issue in the present case is not whether suspension is an act which continues from its imposition to its termination, but whether the further allegations were part of a continuing course or series of acts over a period. 62. In Nageh , the Employment Judge declined to allow the Claimant to proceed on the basis of a continuing act or an act extending over a period (without prejudice to her argument that she should be granted an extension of time in any event) where there had been no contact between the employee and the employer for a lengthy period. She concluded that the Claimant had no reasonable prospect of establishing a case under section 48(3) or (4). Having referred to Hendricks and Arthur , the EAT’s Judgment concluded that the Employment Judge had erred because she had taken too narrow a view of the Claimant’s case, which was based not only on the lack of contact between the parties but also on the acts which the employers were said to have carried out during the period in which there was no contact, including replacing her, removing her possessions, and expunging her from their list of staff. The EAT’s decision was based on a misunderstanding on the part of the Employment Judge of the true nature of the Claimant’s case and does not, in my judgment, even by way of analogy, assist the Claimant on any point of principle. 63. It is to a point of principle which I now turn. It must not be forgotten that the Employment Judge was making case management decisions on an application made long after the presentation of the ET1 to add new allegations to her claim. As long as she did not base her decision on an error of law or did not reach a perverse conclusion - and Miss Robertson did not espouse perversity - it was open to her, in my judgment, in the light of the history, even at a PHR at which the Claimant had given evidence, without hearing full evidence on both sides to reach the conclusion, at least in relation to the events said to have taken place after the Claimant had returned to work, that the allegations were not part of a continuing act or a series of acts; she did not expressly say that they were not part of a series of acts; but Keith J did not give permission for that to be argued and she would undoubtedly, if she had expressed a view, have reached the same conclusion. She did say that the sickness absence was an intervening event; but she did not say that her conclusion was based solely on that; the post-return to work complaints related, or were said to relate, to a new grievance raised on11 October 2011 and new and separate disclosures; see paragraphs 44 to 46 of AP; and the Judge was entitled to take that into account as she was entitled to take into account the overriding objective when deciding whether or not to exercise her discretion to permit or refuse amendment to include the post-return to work allegations in the present claim. Her decision not to do so was a conclusion based on the exercise of a broad discretion; for the most part I do not consider that the Judge erred in principle and my conclusion is that the attack on her decision on this part of the case does not succeed. 64. I have used the words “for the most part” in the preceding paragraph because there is a distinction between paragraphs 38 and 39 of the AP and 40 to 46 on the other, namely the former alleged detriments occurred in March 2011 shortly after the last of the new allegations in the FI which the Judge permitted to proceed and the latter start from a point five months later. However I can find no trace of any separate arguments being addressed to paragraphs 38 and 39 either in the Skeleton Argument or orally; and although the length of the sickness absence does not apply to those two paragraphs, they could and should have been put before the Tribunal in the FI, which it should be remembered was put before the Tribunal in July 2011 in a document to which the Claimant’s Counsel had contributed. The Judge was entitled to regard it as inconsistent with the overriding objective for the allegations in those two paragraphs to proceed by way of amendment when the Claimant should and could have put them before the Tribunal in July 2011 in compliance with the Tribunal’s order for Particulars of her claim. 65. Accordingly this head of the Claimant’s appeal does not succeed. Category II – Trade Union Activities 66. In paragraph 8 of the FI, the Claimant asserted that, on15 February 2009 , Ms Feeney, a temporary Deputy Head Teacher, made untruthful and disparaging remarks about the Claimant to Mrs Higgins in order to undermine the validity of the disclosures which the Claimant had made. She added that Ms Feeney also sought to victimise her for trade union participation. There had been no reference in the ET1 to any claim that she had been subjected to detriment on grounds related to her membership of or activities on behalf of her trade union, in breach of her right not to be subjected to such detriment set out insection 146 of the Trade Union and Labour Relations (Consolidation) Act 1992 . The section 146 allegation was made for the first time by paragraph 8 of the FI in a very limited manner. It played a very small part in the total of the 28 detriments set out in that document at paragraphs 2 to 29 under the heading “Detriments”. 67. In the AP, detriment for trade union activities was first raised at paragraph 13. The Claimant there asserted that she did not go to a trade union meeting because of intimidation and subsequently supported a collective grievance about working practices at the school which constituted a trade union activity. The detriments which follow paragraph 13 in the AP were in many cases expressly attributed to the Claimant’s disclosures and/or her trade union activities; see paragraphs 14 to 19, 21, 23, 25 to 27, 29, 32 to 37, and 39 to 41. Of those paragraphs, 21, 23, 25, 26 and 32 were not permitted to proceed for other reasons; and the appeal in respect of them (none fall into Category 1(c)) has failed, but the Claimant clearly wishes to seek to assert at trial in respect of many remaining paragraphs that she was exposed to detriment for making protected disclosures and/or for her trade union activities. 68. Thus she was seeking, by the AP, to raise a wholly new course of action which related to a comprehensive set of allegations which had been raised not at all in the ET1 and was raised in the FI in what was a very minor way; she sought by the AP to raise that course of action in respect of multiple alleged detriments over a period of just short of two years, from November 2009 to September 2011. 69. The Judge disallowed all of the allegations of detriment for trade union activities; see paragraphs 2 and 4(2) of her formal Judgment, at the beginning of the Decision. As to paragraph 8 of the FI, she said at paragraph 31: “Paragraph 8 of the further information page 59c is not detailed in the ET1, it is not unreasonable treatment that could be referred to within paragraph 6.2 of the ET1 and the further information at paragraph 8 goes beyond the pleaded case.”
“… subject to one exception namely at paragraph 8 of the alleged detriments to the extent that the paragraphs refer to “[CM] has also sought to victimise me for trade union participation.”” 70. As to AP, the Judge said, at paragraph 62.1 to 62.6: “62.1. The claimant asserts at paragraph 5 of the Amended Particulars that she made a qualifying protected disclosure to Mr McCormack on13 May 2009 . For the reasons I have set out above I do not consider that the claimant has, in presenting the original complaint to the tribunal made an assertion that such a qualifying disclosure was made. To the extent that she seeks to amend her claim and to assert that detriments followed because she made that protected disclosure the amendment is not allowed. 62.2. The claimant at paragraph 10 of the Amended Particulars makes a new allegation that the investigator was “terse and hostile and left feeling victimised for reporting the truth”