Case 4110004/2021 · Employment Tribunal
Mrs Natalie Ann Wright v ’ application to amend the ET should be allowed. A Joint Bundle was prepared for today’s PH, with page numbers from - 110. The documents in that Bundle which are mentioned in this decision are referred to by their page number in that Bundle (JB – JB 110) 4110004/2021 Page 2. A PH for the purposes of case management took place over the phone on September 2021. In the Note issued following that Telephone Case Management Preliminary Hearing (‘TCMPH’), it is recorded that the ET initiated claims for discrimination under the Equality Act 2010 relying on the protected characteristics of pregnancy and disability and referred to an incident where there were no suitable arrangements for breast feeding, as well as the and 56 others — 2022
- Case reference
- 4110004/2021
- Decision date
- 14 June 2022
- Jurisdiction
- Scotland
- Judge
- Employment Judge McManus
Parties
58 namedClaimant
Mrs Natalie Ann Wright
Respondents
- ’ application to amend the ET should be allowed. A Joint Bundle was prepared for today’s PH, with page numbers from - 110. The documents in that Bundle which are mentioned in this decision are referred to by their page number in that Bundle (JB – JB 110) 4110004/2021 Page 2. A PH for the purposes of case management took place over the phone on September 2021. In the Note issued following that Telephone Case Management Preliminary Hearing (‘TCMPH’), it is recorded that the ET initiated claims for discrimination under the Equality Act 2010 relying on the protected characteristics of pregnancy and disability and referred to an incident where there were no suitable arrangements for breast feeding, as well as the
- ’s Claims in Respect of Disability Discrimination Relate to the
- ’s requirement for her to wear a face mask at work. 5. In their ET 3, the
- Raised With the
- Subsequently sought to answer the questions set out in that Note. She provided further information on September 2021 (JB – 66). The
- Then answered that call for further specification (JB 76-88). The
- Received an email from The
- ’s dignity. It is unreasonable for the
- ’s child was older than weeks at the time the incident, so therefore comes under Sex discrimination. The
- Requesting this to be done on th June 2020, which provided the
- Received an email from The
- Whether or not she wanted to discuss her disabilities. It is unreasonable for the
- Contacted ACAS. The ACAS ECC Certificate (JB 3) states that the date of receipt by ACAS of the Early Conciliation notification was April 2021 and that the ACAS Early Conciliation Certificate was issued on May 2021. 11. The circumstances relied upon in the ET included the
- , as a breast feeding mother, to express her milk at the work location of her changed shift on September 2020 and reliance on alleged failure of the
- To Subsequent Grievance Meetings With the
- ’s Grievances Raised With the
- In September 2020 was in respect of the
- Wrote to the
- Was Put on Furlough by the
- Following her return to work in August 2021 and advising the
- Was not certified as unfit for work. For two weeks she carried out administrative work for the
- From home, using a laptop issued by the
- . When the laptop was recalled by the
- Did not carry out any work for them. 17. Following the laptop being returned to the
- Alleges against him. He stated:30 4110004/2021 Page “39… …a general claim cries out for particulars to which the employer is entitled so that he knows the claim he has to meet. An originating application which appears to contain full particulars would be deceptive if an employer cannot rely on what it states.” 33. The position set out in paragraph of Ladbrokes Racing Ltd v Traynor UKEATS/0067/06 MT, is relevant to the issues in this PH:- “20. When considering an application for leave to amend a claim, an Employment Tribunal requires to balance the injustice and hardship of allowing the amendment against the injustice and hardship of refusing it. That involves it considering at least the nature and terms of the amendment proposed, the applicability of any time limits and the timing and manner of the application. The latter will involve it considering the reason why the application is made at the stage that it is made and why it was not made earlier. It also requires to consider whether, if the amendment is allowed, delay will ensue and whether there are likely to be additional costs whether because of the delay or because of the extent to which the hearing will be lengthened if the new issue is allowed to be raised, particularly if they are unlikely to be recovered by the party who incurs them. Delay may, of course, in an individual case have put a
- ’s position was that the facts on which that claim is based are set out in the ET and that she just put the name of the legislation relied on when asked for further particulars.15 40. In response to the
- Agreed that the only incident of sex discrimination was the incident re arrangements for the meeting on September 2020. 42. The
- ’s representative’s position on the amendment application is set out in their email to the Tribunal of January 2021 (JB – 93). In their oral submissions, the
- ’s representative accepted that the proposed amendment re sex discrimination is ‘more of a relabelling than a new claim’. It was argued that the proposed amendment re the section claim is not a re-labelling. It was confirmed that objection was made to both proposed amendments. They invited consideration of the following 4110004/2021 Page factors in considering whether or not the amendment should be allowed: time bar; time limits; whether it was the addition of new facts and the timing and manner of the application. 43. The
- Is seeking to introduce a new head of claim months after the lodging of the ET on June 2021.5 Following the guidance set out in Selkent Bus Co Ltd v Moore 1996 ICR EAT, it is the
- ’s Position That Allowing the Amendment Would Place the
- Still potentially having a remedy for her claim of disability discrimination, even if the proposed amendments are not allowed. 44. It is the
- In her ET 1, this new head of claim would require the
- To respond and defend a new claim and necessitate a new line of enquiry. (No details were given as to why that would be the case, given it is the same circumstances relied upon.) It was the
- . It was submitted that that proposed amendment introduces a new head of claim, not included in the ET 1. Reliance was placed on the legal tests set out section requiring different enquiry and consideration by the Tribunal than the other claims brought. It was submitted that allowing the proposed amendments would incur additional time and expense for the
- , not least because it will require a request for additional specification of this claim and thereafter amendment of the
- ’s ET 3. It was the
- ’s Position That Allowing the Proposed Amendment Would Then Incur Additional Costs for the
- As she has legal recourse in the other claims proceeding in the case (particularly in respect of disability discrimination).20 46. It was the
- Not having specified what actual detriment she alleges to have been subjected to, as required under section 44(1)(a). It was the
- Being able to lodge her ET timeously in respect of her other claims, although acting without a representative. It was the
- Why this new claim is presented now, some months after the lodging of her ET 1. 48. The
- If the Proposed Amendments Were Not Allowed and the
- Alleges to have been put to as a result of raising a health and safety concern. It is the
- Did not raise health and safety concerns re that meeting, and that she did not suffer a detriment as a result of raising concerns. It is their position that if the amendment re the section ERA claim is allowed, an 4110004/2021 Page application for that claim to be struck out on the basis of no reasonable prospects of success will be made by the
- . It is their position that even taken at its highest, the claim under section would not be successful as it only alleges a potential detriment, no actual detriment. It was submitted that if allowed, that amendment were allowed, the claim under section ERA is meritless and that it would not be in line with the overriding objective for that claim to proceed. It was the
- To amend her claim would be contrary to the overriding objective as it would increase the time and resources of both the Tribunal and the
- And Place the
- Mentioning that in her agenda form completed for the initial TCMPH. There was no indication in the Note issued following the September TCMPH that any issue in respect of requirement to amend the claim may arise 4110004/2021 Page 53. I considered the balance of prejudice to each party should the amendments be allowed. It was not suggested that the
- ’s evidence that she had raised the issue of the lack of facilities on September in her appeal in December 2020 was not disputed.10 58. I took into account that both of the claims in the proposed amendments sought to rely on facts pled in the original ET 1, and that it was the
- Should the proposed amendments be allowed, and succeed, with the prejudice to the
- Of allowing the amendments, including additional costs involved in defending the claims, including preparation costs. Although the same facts are relied upon, I accepted that the legal issues involved are separate from those in the disability discrimination claim. There would then be some additional hearing 4110004/2021 Page time and preparation time required, although it appeared that there would be no need for any additional witnesses. 60. I took into account the
- ’s position that should the claim under section ERA be allowed to proceed, the
- Would apply for that claim to be struck out on the basis of it having no prospects of success. I considered whether, taken at its highest, the claim in the proposed amendment seeking to rely on section of the ERA had, on the face of it (prima facia) prospects of success. I was conscious of the decision of the EAT in Woodhouse v Hampshire Hospitals NHS Trust [2012] WLUK 574. My consideration was not on the strength of the evidence in respect of the claims in the proposed amendment, but rather whether on the face of what is in the proposed amendment, the claims would be successful if proven. I accepted the
- ’s Position That the
- May Have Recourse Against the
- In respect of those claims was a significant factor in my consideration of the balance of hardship. Further Procedure 67. A Preliminary Hearing for the purposes of case management will now be arranged. That will take place by phone. Parties should attend that telephone case management preliminary hearing (‘TCMPH’) with details of availability for the Final Hearing to proceed in the second half of 2022. Case management for the Final Hearing will be discussed at the TCMPH, including:- (i) Identification of issues for determination by the Tribunal at the Final Hearing.15 (ii) Timetable for Exchange of Documents and Preparation of Joint Bundle of Productions. (iii) Identification of the witnesses from which evidence will be heard and the necessity and relevancy of each witness’ evidence to the issues for determination (iv) Issue of any case management Orders in respect of the Final Hearing (v) The duration and dates of the Final Hearing. (vi) Whether parties are interested in meaningfully engaging in Judicial Mediation 68. Both parties should attend this TCMPH prepared to discuss these matters.25 It would be helpful if the
Key findings
Tribunal's reasoningThe preliminary hearing concerned whether the claimant's ET1 should be amended. The original case had been pleaded as discrimination under the Equality Act 2010 relying on pregnancy and disability; at an earlier case management hearing the breastfeeding incident was treated as sex discrimination because the claimant's baby was over 26 weeks old. The amendment application sought to add a section 44 ERA health and safety detriment claim and to reframe the sex discrimination complaint around the 8 September 2020 email changing the 9 September 2020 shift and meeting location.
The tribunal accepted the claimant's evidence as credible and reliable. It accepted that she had raised a grievance, believed she needed to await the grievance outcome before contacting ACAS, had difficulty getting advice from her trade union representative after a bereavement, and was not aware of the tribunal time limits when she lodged the ET1 on 16 June 2021. It also accepted that the claimant had long-standing mental health issues and that fear of mastitis and lack of facilities formed part of her account.
Applying Selkent and the overriding objective, the tribunal refused leave to add the section 44 ERA claim. It held that the proposed claim was not properly specified, did not identify the correct subsection or the capacity in which the claimant said she was protected, and did not on its face show a detriment caused by raising health and safety concerns. The tribunal allowed the sex discrimination amendment as a relabelling of the same facts already pleaded, but held that the section 13 Equality Act claim was out of time and dismissed it. The disability discrimination claims were left to proceed to a final hearing.
Claims and outcomes
2 findings recorded| Claim type | Issue or finding | Outcome | Protected characteristic | Award |
|---|---|---|---|---|
| Other | Proposed amendment under section 44 ERA 1996 refused at the preliminary hearing; the tribunal held the claim was under-specified, did not identify the correct subsection or the claimant's protected capacity, and on its face did not show a detriment caused by raising health and safety concerns. | Other | — | — |
| Sex discrimination | Amendment allowed as a relabelling of the facts already pleaded, but the section 13 Equality Act 2010 sex discrimination claim was held time barred and dismissed. The relevant incident was the 8/9 September 2020 shift change and meeting arrangements, and the ET1 was not presented until 16 June 2021. | Dismissed | Sex | — |
Legal tests applied
11 references- Rule 2 overriding objective
- Selkent Bus Co Ltd t/a Stagecoach Selkent v Moore
- Vaughan v Modality Partnership
- Cocking v Sandhurst (Stationers) Ltd
- Ladbrokes Racing Ltd v Traynor
- British Coal Corporation v Keeble
- Dedman v British Building and Engineering Appliances Ltd
- E v X, L & Z
- Woodhouse v Hampshire Hospitals NHS Trust
- s.48(3) ERA 1996
- s.123 Equality Act 2010
Official outcome judgment PDF
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