Appeal No. UKEATS/0005/13/BI
EMPLOYMENT APPEAL TRIBUNAL
52 MELVILLE STREET, EDINBURGH, EH3 7HF
At
the Tribunal
On
19 June 2013
Before
THE HONOURABLE LADY STACEY
(SITTING ALONE)
MS
CAROLINE OLIPHANT APPELLANT
BOOTS
MANAGEMENT SERVICES LIMITED RESPONDENT
JUDGMENT
SUMMARY
PRACTICE AND PROCEDURE – Amendment
Amendment of pleadings. The Claimant submitted a form ET1
alleging that she had made protected disclosures and had suffered detriment due
to that; and that she was disabled and the Respondent had refused to make
reasonable adjustments. She submitted an agenda for a Case Management
Discussion (CMD) in which she stated that she complained of contraventions of
sections 13, 19, 26, 27, 15 and 20 of the Equality Act 2010. She also
stated that she complained of direct discrimination, indirect discrimination,
harassment and victimisation. She produced further and better particulars in
accordance with the agenda. At a pre-hearing review (PHR) the Respondent
argued that the Claimant sought to introduce new matters, which were time
barred. The ET agreed and refused to allow amendment to include the matters
raised in the agenda and further and better particulars. They Claimant
appealed. The ET did not err in law. The matters were not referred to in the
ET1 and so were new. No explanation for their being raised late was given. The
ET was entitled in the exercise of its discretion to refuse the amendment.
THE
HONOURABLE LADY STACEY
Background
1.
I shall refer to Ms Oliphant as the Claimant, and to Boots Management
Services Ltd as the Respondent. This case relates to case management and
amendment of pleadings. The underlying issues relate to the Claimant’s
assertion that she made protected disclosures and was subject to detriment in
respect of them, and that she is a disabled person. These matters are denied
by the Respondents. There has been no full hearing and difficulty has arisen
in the pleadings. It is necessary to look at the forms ET1 and ET3 lodged by
the parties and at the procedure that has taken place since.
2.
The Claimant is employed by the Respondent as a dispenser. Her employment
started in October 2000. On 22 June 2012 that she submitted a form ET1. In
that form she ticked a box to indicate that she was discriminated against on
the grounds of disability and that she had other complaints. She included a
paper part. It was drafted on her behalf by her sister. It consists of ten
pages in which a sequence of events is set out relating to events beginning in February 2010.
The Claimant was signed off sick for a period of two weeks and went off, phoned
the Respondent and spoke to Mr Harper. She states that the way in which he
responded indicated that he had no regard for her well-being. She concluded
that her health was being put at risk and that her mental state was affected by
him. She felt bullied and harassed about what she perceived to be his ranting
and aggressive behaviour on the telephone. In the week beginning 22 February
2010 she telephoned to the HR department to report Mr Harper’s behaviour. It
is stated in the form that the phone call constituted a protected disclosure of
the purposes of section 43B of the Employment Rights Act 1996.
3.
The Claimant in her form continues with a narration of events during
2010 in which she states that Mr Harper included her on a shortlist for
redeployment from which she claimed that she should have been exempt on both
medical grounds and childcare grounds. She asserts that her inclusion in a
shortlist is a detriment, and that Mr Harper included her as a consequence of
her telephone call with HR. Following a meeting at which the Claimant was
emotionally distraught she was selected for a position with another store. She
raised a grievance, in October 2010, about Mr Harper’s behaviour in
relation to both the telephone call in February 2010 and the decision to
redeploy her. She also appealed against the decision to redeploy her. Part of
the grievance was upheld. She was not redeployed whilst grievance and appeal
were outstanding. The Claimant states in her form that Mr Harper discussed the
grievance and the decision making with other members of staff, which upset
her. After the appeal the area manager in the Divisional Employee Relations
department spoke to the Claimant in an unsympathetic way. The Claimant found
the whole phone call very distressing. The appeal against redeployment was
successful.
4.
In March 2011, according to the Claimant, in the form, it came to her attention
that she had been underpaid for the previous year. The Claimant raised this
issue with her team manager who confirmed that she was correct. Mr Harper,
according to the Claimant, intervened. The Claimant raised the issue higher in
management, with Mr Reston. She was awarded the correct salary increase. In
June 2011 Mr Harper informed her that Mr Reston had told him everything. This
added to the Claimant’s anxiety and left her feeling isolated.
5.
The next matter raised in the form is that of holidays. The Claimant
narrates a difficulty in obtaining a holiday in October to allow for her son’s
holiday from school, having previously booked a holiday and then being told
that she could not get it. The Claimant states that matters were deliberately
drawn out in order to concern her. Having been on holiday, the Claimant states
that on return she was questioned about allegations made by others about events
which had happened when she was on holiday. She states that the enquiry made
her feel anxious and that Mr Harper knew that that would be the effect on her.
6.
The Claimant then states that, without her consent, the Respondents
sought to change her working hours. She states that the Respondent knew that
she could not do the new hours because of her childcare commitments. The Claimant
spoke with the regional manager of her concerns. He said that she could have a
right of appeal and she expressed to him that she felt that she could not go
through another appeal process due to distress. She was asked to attend a
meeting at which she was asked by a member of HR staff “do you feel
victimised?” She replied that she did. At the end of that week she felt
unwell due to the stress that she was experiencing at work. She asked to go
home. She became inconsolable and was told by Mr Harper that if she went
home she would be disciplined. The Claimant went home and had been signed off
work ever since.
7.
During her absence, the Claimant produced medical certificates, sent to
the Respondents by her sister. She states that despite the certificates, the Respondents
phoned her on 23, 24 and 26 December 2011. The Respondents asked for a meeting
in January 2012, stating that failure to comply with company procedure could
lead to them withholding company sick pay. The Claimant found the respondent’s
behaviour to be unnecessary and counter-productive. In April 2012 a medical
certificate relating to the Claimant was pinned up on the pharmacy notice board
within the store in full view of staff members and customers.
8.
The next heading in the form is “WHISTLEBLOWING”. In the paragraph
which follows, the Claimant states that as a result of making a protected
disclosure about the bullying and aggressive behaviour of Mr Harper, she
suffered a series of detriments “contrary to section 103 A of the ERA
1996.” She then sets out the communications which she claims are protected
disclosures, in broadly the terms as narrated above. In the next paragraph,
the Claimant sets out in numbered paragraphs the detriment that she claims she
suffered between February 2010 and April 2012.
9.
The next heading on the form is “DISABILITY DISCRIMINATION/REASONABLE
ADJUSTMENTS”. In this part of the form the Claimant asserts that she was
diagnosed with depression in February 2010 and was therefore a disabled person
within section 6(1) of the Equality Act 2010. She claims that the Respondent
was aware of her disability having been given an occupational health report in
June 2010 and a medical certificate from her own GP in April 2010. She states
that the management knew of her mental health issue and refused to have regard
to it. They refused to make reasonable adjustments. She states that it would
have been a reasonable adjustment to allow her to go home as requested in
December 2011. She says that it would have been a reasonable adjustment to
exclude her from the redeployment exercise and to ensure support for her during
pressurised situations, such as profiling exercises. The form finishes with an
assertion that it would been a reasonable adjustment to allow the Claimant time
to compose herself, offering support and alternative duties.
10.
In the form ET3, the Respondents begin by stating that the Claimant’s
complaint that she has been subjected to detriment contrary to section 103 A of
the ERA 1996, and that she has been subjected to disability
discrimination in terms of failure to make reasonable adjustments, contrary to
the Equality Act 2010 are not accepted. Under the heading
“jurisdictional issues” the Respondents state that the Claimant complains about
discrete and separate acts occurring between February 2010 and April 2012 which
she says constitute detriment on the grounds that she made protected
disclosures. The Respondents state that such acts cannot be in contravention
of section 103 A of the ERA because she has not been dismissed. They state
that such a complaint is misconceived and should be struck out. They then
state that if the Claimant’s complaint is made pursuant to section 47(B)(1) of
the ERA then as all of the alleged acts of discrimination took place between
February 2010 and 10 December 2011, with the exception of the placing of the
medical certificate on the board, they are out of time. They also state that
the alleged acts of disability discrimination referred to by the Claimant, the
latest of which was said to occur in December 2011 are out of time in terms of
section 123 of the Equality Act 2010.
11.
The Respondents then set out their position on the various assertions
made by the Claimant. The Respondent denies that it subjected the Claimant to
any detriment because she had made protected disclosures. They assert that any
disclosures were not made in good faith, but rather were made out of personal
antagonism. They assert that if they are wrong in that, firstly the Claimant
suffered no detriment as a result of having made disclosures and alternatively
if it is believed that the Claimant did suffer detriment, then it was not
because she had made the disclosures. As regards disability discrimination the
Respondent did not accept that the Claimant was disabled. The fall-back
position taken by the Respondent is that if the Claimant is disabled, the Respondent
denies any failure to comply with its duty to make reasonable adjustments.
12.
A case management discussion (CMD) was held on 24 August 2012. The Employment
Judge at that hearing refused the Respondent’s application for a pre-hearing
review to determine the issue of time-bar. She set the case down for a full
hearing. She also made an order for further and better particulars to be
provided by the Claimant in the form of answers to questions set out in a
schedule. She made an order that within two weeks the parties were to agree a
letter of instruction to the Claimant’s doctor requesting a report on the issue
of disability status. In her judgment the Employment Judge noted that the last
act relied on by the Claimant occurred on 11 April 2012, which was within three
months prior to the date of presentation of the ET1. The most recent act prior
to that was alleged to have occurred on 10 December 2011. The Claimant’s position
was that these acts and others were conduct extending over a period and were
accordingly not time-barred. The Respondent’s position was that each of the
acts was separate and at that everything prior to 23 March 2012 was therefore time-barred.
The Employment Judge refused the Respondent’s application to have a pre-hearing
review, taking the view that it would result in duplication and would not be
proportionate for the Claimant to give the same evidence twice. The Employment
Judge in paragraph 4 stated the following:
“On behalf of the respondent, Ms Stobart indicated that,
although in her response to the CMD agenda, the claimant had ticked the boxes
for all different kinds of discrimination, in her originating application the
only claim the respondents could discern was a claim for discrimination by
failure to make reasonable adjustments.”
13.
The judge stated that she explained to the Claimant and her
representative that the Tribunal would only be able to determine those complaints
contained within the ET1 and that if she wished other matters to be considered
she would need to apply to amend the form. The Claimant’s sister, Ms Brown,
stated that all the claims ticked in the CMD response were already in the ET1.
She stated however that the Claimant had arranged to take legal advice. The Employment
Judge found that it was appropriate for the Claimant to provide further and
better particulars of her case once she had had the benefit of taking that
advice. She set out a schedule with questions that she should answer.
14.
The Claimant provided further and better particulars, dated 12 September
2012 and comprising six pages. That document was the subject of discussion at
the pre-hearing review on 27 November 2012 at which Employment Judge Craig
decided that the further and better particulars sought to introduce new claims;
that those claims required to be introduced by way of amendment; that the new
claims were out of time; and she declined to exercise her discretion to allow
the amendment.
15.
It is that decision which is the subject of the appeal. For the
purposes of the appeal it was obviously necessary to consider the terms of the
agenda of which the Claimant had filled in for the CMD. Parties did not
produce it in advance, but having asked for copies to be made, I had the agenda
before me at the hearing of the appeal. The document consists of a typewritten
questionnaire with answers entered in handwriting. Question 2.1 is in the
following terms:
“Do you complain of:
·
direct discrimination (section 13)
·
indirect discrimination (section 19)
·
harassment (section 26)
·
victimisation (section 27)
·
discrimination arising from disability (section 15)
·
failure to make reasonable adjustments for your disability
(section 20)”
The Claimant ticked each matter and
wrote the word “All”.
16.
In schedule 1 to the agenda the Claimant is asked if she complains about
direct discrimination, what less favourable treatment she says she has
suffered. The Claimant completed that by reference to the paper apart in the
form ET1. The next question is ‘if you complain about indirect discrimination
what “provision, criteria or practice” do you say the respondent has applied to
you?’ Once again she completed that by reference to the paper part in the ET1.
The following question appears:
“What is the particular disadvantage you say that people who
share your protected characteristic would have been put at when compared to
other people because of that protected characteristic?”
That the answer given is as
follows:
“The disadvantage of the protected characteristic is the refusal
to acknowledge the illness exists, therefore the psychological impact would
cause further detriment if not dealt with appropriately.”
17.
The form enquires if you complain about harassment and asks for details
which the Claimant gave. She included in it that the harassment was related to
the fact that she was a single mother and a sole carer. Once again she makes
reference to the paper part in the ET1. In the section concerning complaints
about victimisation, the Claimant stated that reference should be made to the
paper part in the ET1. Schedule 2 relates to disability and the Claimant
completed all parts of it.
18.
At the PHR on 27 November the Employment Judge noted that a seven-day
hearing had been listed to commence the 3 December 2012 with a separate pre-hearing
review on 27 November to determine whether the Claimant was a disabled
person. The notice of hearing for the PHR specified that another preliminary
issue was to be considered, namely “whether the claimant’s additional claims
should be included”. She noted that that was a reference to the further and
better particulars produced after the case management discussion. The Respondent
asserted that the terms of the further and better particulars was such that the
Claimant sought to introduce new claims out of time. She noted that by the
time of the PHR the Respondent had conceded that the Claimant was a disabled
person. The Respondent maintained its position in relation to the terms and
effect of the further and better particulars. The Employment Judge was then
faced with a hearing approximately one week before the date of a full hearing
at which she was asked to determine whether or not the Claimant had sought, by
means of the further and better particulars, to introduce new matters which may
be time-barred. Given the timescale, she gave an oral decision after the
hearing, to the effect that the terms of the further and better particulars
were an introduction of new claims which were out of time and that she was not
persuaded to exercise her discretion to allow the amendment. Mr Muir who
appeared for the Claimant advised that he would appeal the judgment and so
moved for at the hearing to be postponed.
19.
The Employment Judge produced written reasons. She identified the
issues at paragraphs 31 and 32 of her judgment as being that the Respondent
argued that the further and better particulars sought to introduce new claims;
in contrast the Claimant argued that they were merely the provision of further
details in relation to existing claims. The Claimant argued that there was no
need to amend the ET1. The Employment Judge found that she was required to
determine whether the further and better particulars could be accepted as part
of the case without further procedure, and if they could not whether they
should be accepted nonetheless.
20.
The Employment Judge narrated the parties’ positions, in which she noted
that Mr Muir argued that the ET1 had been brought by a party litigant who had a
debilitating illness, and she ought to be allowed to explain her versions of
events and then leave it to the Tribunal to sort out what claims came out of
all that. He argued that detailed pleadings were not required in an employment
tribunal. He argued that as the Respondents had had the further and better
particulars since September they were on notice of the Claimant’s case and had
not suffered any prejudice. The Employment Judge noted that apparently with
some reluctance Mr Muir took the view that if the judge found that was
necessary then he would move to amend. The judge noted that she asked Mr Muir
if he intended to lead any evidence so that if the question of time bar became
an issue she would be in possession of facts that would allow the matter to be
addressed. The judge found that she did not get a clear answer. The judge
notes in paragraph 41 that the Claimant addressed her directly, not
apparently because of any issue with Mr Muir’s submissions, but because she
wanted to reinforce her position. She said that there was nothing in the
further and better particulars that had not been in the ET1. At paragraph 40
the Employment Judge noted that the Claimant became upset and seemed to be
under the impression that she might be prevented from advancing her case at
all. The Employment Judge stated the following:
“I sought to reassure her that there was no challenge (save the
time-bar point) in relation to the matters set out in the ET1 and that she
would have her opportunity to give evidence about those matters in due course
whatever the outcome of the PHR. It would be fair to say that she did not
appear to be reassured.”
21.
The Employment Judge noted that the Respondent submitted that the
further and better particulars had been ordered at the CMD because the Claimant
had ticked all of the boxes on the agenda suggesting that she was trying to go
well beyond the otherwise well pled claims. Counsel argued that it was clear
that at the CMD the Employment Judge (who was a different judge from the judge
who heard the PHR) did not want to particularise the existing claim. Rather
she wanted clarity that matters did not go beyond the claims set out in the
ET1. Counsel argued that it was clear from the ET1 that the Claimant’s issue
with the Respondent surrounded her interaction with Mr Harper and that she put
her difficulties down to the fact that she had reported him to HR and had
subsequently taken out a grievance against him. Her case was one of alleged
detriment due to whistle blowing. Counsel also argued that the issue connected
with the Claimant’s disability arose squarely in the context of a claim of
reasonable adjustments arising out of the Claimant’s fragile state of mind. From
the ET1 one could tell that the Claimant wished to argue that the breakdown in
the relationship between employer and employee was due to the disclosures.
Therefore any reference to any other form of disability discrimination amounted
to the introduction of new claims. Counsel argued that there was no proper
specification of victimisation or harassment. Prejudice would arise as the Respondent
would require to investigate these claims. If amendment were not allowed in
the Claimant would not suffer hardship and injustice because she would not be
deprived of the existing claims in respect of detriment due to whistle blowing
and her claim about disability and reasonable adjustments. Counsel argued that
if there was to be a motion to amend then evidence would be required on the
question of time bar to enable the Employment Judge to decide the matter properly.
22.
The Employment Judge took the view that it was clear that the ET1 as
presented comprised a claim under section 103 A of ERA together with a claim of
failure to carry out reasonable adjustments in respect of disability, which
could only be a claim under section 20 of the Equality Act. She noted in
paragraph 58 that the Claimant sought to rely on section 103A of ERA which
would seem to be erroneous as the Claimant was still employed by the Respondent.
She found that the further and better particulars sought to introduce claims
under sections 13, 15, 19, 26 and 27 of the Equality Act, none of which had
been previously pled. She pointed out that both direct and indirect
discrimination were included and quoted the case of R (on the application
of E) v Governing Body of JFS and others [2010] IRLR 136 as authority
for the proposition that a claimant cannot insist on both on the same facts.
She decided that the Claimant had made no causative link between the case as
set out in the ET1 and the disability claims advanced. The Claimant also
wanted to argue that she had been harassed because of her disability, whereas
the pleadings to date were to the effect that harassment had been due to the
disclosure. The Employment Judge found that claims of victimisation had no
explanation of the act that prompted the victimisation. The Employment Judge
noted that it could not be the protected disclosure because the protections
related to such a disclosure do not derive from the Equality Act but from
elsewhere. The Employment Judge noted that these were not advanced as
alternative cases.
23.
The judge then indicated that she had to consider the party’s position
on amendment. She noted that Mr Muir had said little except that she should
allow the amendment, no doubt because he did not regard it as necessary. The
judge therefore found herself without submissions from him as to the proper
approach that she should take. The judge said that in light of the importance
of the matter she was prepared to consider whether or not amendment should be
allowed. She came to the view that it should not, setting out in paragraph 69
that she was satisfied that there was no causative link between the claims
advanced in the further and better particulars produced on 12 September 2012 and
the claim as pled in the ET1 which was presented on 22 June 2012. The last
date on which any incident was said to have occurred was 11 April 2012, which
was more than 3 months before 12 September 2012. Therefore to allow the
matters set out in the further and better particulars would be to allow matters
which were time-barred. The Employment Judge turned her mind to whether, as a
matter of discretion, she should allow the amendment. She took the view that
there would be prejudice to the Respondent as it would extend the issues
requiring evidence of comparators, and evidence of any provision, criteria, or
practice said to be discriminatory. Further, the pleadings were unclear and
contradictory. She took the view that she had no explanation why the amendment
came when it did, pointing out that there had been no explanation why there was
reference to certain statutory claims in the ET1, but not to those now sought
to be made.
24.
The decision of the Employment Judge therefore was that the further and
better particulars dated 12 September 2012 sought to introduce new claims which
should have been introduced by way of amendment to the ET1; that the new claims
were out of time; and that no amendment should be allowed.
25.
On behalf of the Claimant it was argued before me that the Claimant’s
claim had always been doomed to failure because her claim under section 103A
was incompetent. Mr Muir submitted that the Claimant should have been advised
of this, apparently not by himself, but by somebody else and certainly by the Employment
Judge at the PHR. I had some difficulty in understanding how this submission
related to the question before me which was whether or not that had been an
error of law made by the Employment Judge in refusing an amendment, having
decided that the Claimant was attempting to insert new claims which were out of
time. Mr Muir fastened on the Employment Judge’s remark at paragraph 72 that
she had had no explanation why the amendment came when it did. He pointed out
that she knew that it had come because the judge at the CMD had asked for an
amendment. He said that he could accept that there are new claims made but
there is no new narrative. He took me to a number of emails between parties to
show me that neither the Claimant nor her sister who advised her could
understand what the new claims were. He argued that it was in some way
incumbent on the Respondent to tell the Claimant before the PHR what the
problems were. I did not find this line of argument helpful as it seemed to me
firstly that there is no such duty and secondly that the emails do point out to
the Claimant that the only complaints properly before the Tribunal were those
of whistle blowing and failure to make reasonable adjustments.
26.
Mr Muir went on to explain that the Claimant, who had acted on her own
behalf, along with her sister to advise, suffered from an essential lack of
clarity. He had been instructed only in mid-November and the Respondents conceded
only a day before the November hearing that the fact of disability was no longer
in contention. He repeated that the real issue was that a party litigant had
tried to deal with complex legislation. The narrative itself had not altered.
He explained that at the hearing in front of the judge at the PHR he himself
was not sure what claim required to be addressed. He would have drafted the
ET1 differently had he been instructed in the first place. He repeated that
the essential point was that no new facts were sought to be added, it was
simply a matter of different legal labels for the same events.
27.
He explained to me that his position was that the matters contained in
the further and better particulars were an amendment and they should be
allowed. Thereafter there should be a hearing on the merits as soon as
possible. He would concede that the Respondent should have time to amend the
ET3 if they thought it necessary. His fall-back position was that I should
remit to a differently constituted ET to determine firstly if the matters in
the further and better particulars should be seen as an amendment and if so
they should be admitted.
28.
Counsel for the Respondent submitted that in the ET3 the Respondent
recognises the mislabelling of the claim by using section 103A and at that in
the ET3 it is set out that there may be a claim under section 47(B). She
emphasised that she did not have instructions on this matter, but was able to
say that it might be difficult to resist a motion to amend from section 103A
to section 47(B). Counsel argued that the Employment Tribunal at the PHR had made
no error in law. The judge had applied the right test. She looked at the
nature of the further and better particulars and decided that they were new
claims. She made reference to the case of Ali v Office of National
Statistics [2004] EWCA Civ 1363. She noted in paragraph 56 that
that case was authority for the proposition that it is not enough simply to
make some reference in passing to, for example, harassment and victimisation in
the context of a different type of claim for that to be enough to open the door
to any type of harassment and victimisation claim. Ms Stobart argued that the
judge was correct in her decision. Taking an example from this case, counsel
argued that if the Claimant wished to argue that she had not been paid the
correct salary because she was disabled, then she had to say so. She had not
said so in her ET1.
29.
If she was correct in categorising the matters as new, counsel argued
that these matters were time-barred. The judge had been correct in so
deciding. She was also correct in considering whether time-barred amendment
should be allowed. There was no evidence led to show why they should be. It
was a matter of discretion and the judge had exercised her discretion by
refusing the amendment and explaining why she had done so. Therefore she had
not erred in law and the appeal should be refused. If I was minded to allow
the appeal then counsel submitted the case should be sent to a differently
constituted tribunal which should decide again whether the matters were new and
whether, if they were, they should be allowed.
30.
I have decided that there is no error of law in the decision made by the
Employment Judge. The ET1 is clear in the factual claims made. They amount to
a claim that the Claimant made protected disclosures and suffered detriment
because of that, and that she was (and is) disabled, but her employers did not
make reasonable adjustments in that regard. There is an obvious error in the
form as the Claimant is still employed by the Respondent and so section 103A does
not apply. That was recognised in the ET3, which was of course sent to the Claimant.
The Respondents state very clearly that ‘such acts cannot be in contravention of
section 103A of ERA, because the claimant has not been dismissed.’ The Respondents
then go onto say ‘if the claimant’s complaint is made pursuant to section
47(B)(1) …’. Thus the Claimant had notice at an early stage that she had used
the wrong section. Counsel conceded that if a request had been made to amend
to refer to the correct section, it may have been hard to offer opposition. That
is an example of the attitude likely to be taken by a tribunal, where in many
circumstances a litigant should not fail in reaching a hearing due to an error
which is of form and not substance. I have decided that the matters which the Claimant
seeks to introduce cannot be so categorised. She seeks to make new claims under
new sections.
31.
At the ET the Respondent sought to argue that the case should be set
down for a pre-hearing review on time bar. At that hearing the judge
disagreed. However, it was raised by counsel at that hearing that the Claimant
had in the agenda ticked all of the boxes for all different types of
discrimination and the judge explained to her that only those matters raised in
the ET1 could be heard. She indicated she was going to take legal advice and
for that reason the judge found it appropriate to ask her to provide further
and better particulars once she had the benefit of taking that advice. Thus it
is clear that the judge explained that if new matters were to be relied on,
then permission would be required to amend them in. When the case called for
the PHR, the Employment Judge had no explanation before her as to why the Claimant
had ticked boxes relating to claims not made by her in her form. She had no
explanation why the legal advice which was obtained before the pre-hearing review
did not recognise that new claims were being attempted, which would require
amendment.
32.
In the end a motion was made for amendment, but no explanation was given
about time bar, that is no reason was given why these new claims should be
allowed after the time limit set by statute had elapsed. In that situation the
Employment Judge was acting within her discretion when she refused the
amendment. She considered the law fully and gave reasons for her decision.
33.
There is no error of law in the ET decision. The appeal is refused. The
effect of my decision is that the Claimant can still bring her case to a full
hearing; it will be on the matters raised in her ET1.
