Employment Judge Rejects Late Claim Amendment for Lack of Detail

OUTCOME: Refused

Case Number: 3303977/2024

1

EMPLOYMENT TRIBUNALS

Claimant

Respondent

[NAME]-[APPELLANT]

v

Welwyn Hatfield Borough Council

Heard at: Watford (via [NAME]) On: 22-23 April 2026

Before: Employment Judge Smeaton

Appearances For the Claimant: [redacted]

For the Respondent: [redacted]

REASONS Introduction

1. By judgment dated 27 April 2026, the Respondent’s application to strike out the Claimant’s claim was dismissed. The Claimant was ordered to pay a contribution to the Respondent’s costs in the sum of £1,000 + VAT within 35 days of the date of the judgment. Full reasons for that judgment were given orally at the hearing on 23 April 2026.

2. On 6 May 2026, before the written judgment was sent to the parties, the Claimant applied under rule 60 of the Employment Tribunal Procedure Rules 2024 (‘the 2024 Procedure Rules’) for full written reasons.

The hearing

3. The case was listed on 22-23 April 2026 for a full merits hearing. It was agreed between the parties, however, that the full merits hearing could not be effective because the matter was not ready to proceed. The parties invited the Tribunal to convert the hearing to an open preliminary hearing in order to determine the Respondent’s application to strike out the [APPELLANT] claim.

4. The Claimant was represented at the hearing before me by Mr [APPELLANT] and the Respondent was represented by Ms [APPELLANT]. The hearing took place via [NAME], for the reasons set out below.

Case Number: 3303977/2024

2 5. I was provided with a bundle of documents from the Respondent comprising 109 pages, a separate bundle for the Claimant comprising 95 pages and two skeleton arguments, one from Mr [APPELLANT] and one from Ms [APPELLANT].

6. I heard evidence from the Claimant and submissions from both parties. I have had regard to all of the documents and evidence before me in making my decision, as well as to the oral submissions made by both representatives.

7. At the end of the second day of the hearing, I gave an oral judgment, with full reasons, dismissing the Respondent’s application for strike out of the claim but making an order for the Claimant to pay a contribution towards the Respondent’s costs. I also made various case management orders which are the subject of a separate order.

Background

8. The Claimant was employed by the Respondent as a [COMPANY] manager from 10 November 2020 (on her case) or 23 November 2020 (on the Respondent’s case). The start date of her employment is immaterial for the purpose of these written reasons. The claim form, which ticked the boxes for claims of race and disability discrimination, was presented on 15 April 2024.

9. On 17 June 2024, the Claimant resigned from her employment with immediate effect.

10. On 28 August 2025, the Claimant made an application to amend her claim to include claims of constructive unfair dismissal, victimisation and whistleblowing.

11. The final hearing was first listed to be heard over three days between 8 and 10 September 2025. The Claimant made an application to postpone that hearing, which was refused, although ultimately the hearing was postponed due to a lack of judicial availability.

12. A Case Management Preliminary Hearing took place before Employment Judge (‘EJ’) Davison on 12 December 2025. Both parties were represented at that hearing as they were before me.

13. EJ Davison refused the Claimant’s application to amend her claim to include claims of constructive unfair dismissal, victimisation and whistleblowing. Full reasons for that decision were sent to the parties on 9 January 2026. The Claimant did not apply for reconsideration of that judgment and did not seek to appeal it.

14. It was accepted by both representatives at that hearing that the disability and race discrimination claims needed to be further clarified (paragraph 5 of the Case Management Order (‘CMO’)). [APPELLANT] ordered the Claimant to write to the Tribunal and the Respondent by 30 January 2026 with the further information highlighted in the list of issues. Within the CMO, he made clear that any additional information must link back to the ET1 and that no new claims should be

Case Number: 3303977/2024

3 advanced. He also made clear within his CMO that the information was necessary for the hearing in April 2026 (the full merits hearing) to be effective.

15. The claims were identified by [NAME] as claims of direct race and disability discrimination (s.13 EqA 2010) and discrimination arising from disability (s.15 EqA 2010). The Claimant was ordered to provide:

(a) For the claim under s.13 EqA 2010:

i. the acts or omissions of the Respondent said to be race and/or disability discrimination; and ii. the names of any comparators.

(b) For the claim under s.15 EqA 2010:

i. the acts or omissions of the Respondent said to amount to unfavourable treatment; and ii. the ‘things’ said to arise in consequence of the Claimant’s disability.

16. The CMO of [APPELLANT] was clear. The Claimant, whether represented or not, ought to have understood what she was required to do to comply with [APPELLANT]’s order.

17. On 27 January 2026, the Claimant lodged a schedule of loss. [APPELLANT]’s judgment refusing the Claimant’s application to amend, that schedule of loss referred to claims for automatic unfair dismissal and constructive unfair dismissal (as well as claims for disability discrimination). No reference was made to a claim for race discrimination.

18. On 30 January 2026, the Claimant emailed the Respondent’s [APPELLANT] requesting a number of documents. General disclosure was not due until 20 February 2026. The Respondent had, however, been ordered by [APPELLANT] to disclose to the Claimant by 9 January 2026, any emails within its possession concerning the [NAME] consultation between herself and four named individuals between 1 September 2023 and 30 November 2023. Mr [APPELLANT] maintained at the hearing before me that the Respondent did not comply with that order. He stated that, when he wrote to the Respondent’s [APPELLANT] seeking, amongst various other documents, all communications involving the CEO with [COUNSEL] and [COUNSEL], the Respondent’s solicitor responded to indicate that it had no relevant documents to disclose.

19. The Claimant did not make a further application to the Tribunal challenging the response from the Respondent on the disclosure issue. I was not taken to any evidence which might suggest that the Respondent’s response on the matter was wrong or that the Respondent had failed to comply with its disclosure obligations.

20. The Claimant did not comply with [APPELLANT]’s order. She did not provide the information outlined above. On 29 January 2026, the Claimant sent what she referred to as a ‘Disability Assessment bundle’. This appeared to be provided in response to [NAME]’s order for details of the impairment relied on, its effects

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4 and medical evidence necessary for the Respondent to determine whether or not it admits that the Claimant is disabled within the meaning of s.6 EqA 2010.

21. Upon discussion during this hearing, it became clear that Mr [APPELLANT] also relied on information contained within that bundle to comply with the order for further information of the allegations of discrimination. That was not at all clear from the covering email. It is only when the ‘disability impact assessment’ is read in full that some of the necessary further information can be extracted. That is not an appropriate or acceptable way to comply with an order for further information.

22. On 11 March 2026, the Respondent chased the Claimant for the outstanding missing information. As an aside, it is not entirely clear to me why it waited so long to do so. Although I acknowledge that it is not the responsibility of the Respondent to chase, particularly in a case where the Claimant is legally represented, I would have expected a represented party to query the failure to comply earlier, particularly given the proximity of the full merits hearing.

23. On 12 March 2026, Mr [APPELLANT] responded to the Respondent asking what information was being requested. That is notwithstanding that the outstanding information had already been made clear in [NAME]’s order. Again, as an aside, it is not clear to me why the Respondent did not respond to Mr [APPELLANT] to refer him back to [APPELLANT] order. Again, whilst not its responsibility to do so, it would not have been a difficult or onerous step to take (although, in the circumstances, I do not think it would have made any difference given how difficult it was to identify the missing information at this hearing).

24. On 30 March 2026, the Respondent applied to strike out the Claimant’s claim under rule 38(1)(b) of the 2024 Procedure Rules (unreasonable conduct) and/or rule 38(1)(c) of the 2024 Procedure Rules (failure to comply with an order of the Tribunal). That application ought to have prompted Mr [APPELLANT] and the Claimant to revisit [APPELLANT] and remind themselves of what missing information was required.

25. Instead of providing that information, on 30 March 2026, the Claimant submitted a document titled ‘re-organised claim’ and a proposed list of issues. Those documents referred to a claim of unfair dismissal, which is not a claim the Claimant has permission to pursue, and a claim of race discrimination. The document is very difficult to follow but it clearly does not identify a claim of disability discrimination. The references to the Claimant’s disability were said to be matters relevant to context and the fairness of the alleged dismissal only.

26. The documents were not sufficient to comply with the order of [NAME]. Indeed, they confused matters further. They were submitted two months after the deadline for compliance and failed to particularise the complaints. Two allegations of race discrimination were identified in the list of issues, both in broad and vague terms. The information was not sufficient to allow the Respondent to understand the case it has to meet.

27. On 8 April 2026, the Respondent added to its application to strike out, noting that although the Claimant had now provided further information, she had still not

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5 provided the missing information ordered by [NAME] and, further, had provided details of claims that she does not have permission to pursue.

28. The hearing came before me listed for a full merits hearing. On the morning of the hearing, it was converted to a [NAME] hearing. That application, which was ultimately granted on the basis of the Claimant’s health, was not made in good time. The Claimant had indicated in her pre-trial questionnaire, filed in March 2026, that she would prefer a hearing via [NAME], but gave no indication that that was for health reasons.

29. The application to convert the hearing was not made until 8 April 2026. No reference was made to the [APPELLANT] health in that application. The application was refused by EJ Hawksworth sitting as the Acting Regional Judge on 21 April 2026 on the basis that insufficient grounds had been identified to justify converting the hearing. In response, Mr [APPELLANT] sent an email indicating that the application was in fact being made on the basis of the Claimant’s health. [APPELLANT] ordered the Claimant to file any medical evidence in support of that application. The Claimant’s disability impact statement and some medical evidence, albeit not contemporaneous evidence, was filed shortly thereafter.

30. The matter was referred to me just after 4pm on the afternoon of 21 April 2026. By the time I was able to consider the documents and make a decision, it was after close of business. The parties were therefore only informed that they could attend by [NAME], if they so wished, early on the morning of the hearing. The manner in which the application was made caused unnecessary work for the Tribunal administration. As I explained at the outset of the hearing to Mr [APPELLANT], if an application is to be made on medical grounds, it should be done as soon as possible. There was no justification for the timing of this application.

31. I make clear that I have not taken my criticisms above concerning the application to convert the hearing into account when making my decision on the strike out application or on costs.

32. The parties agreed at the outset of the hearing that there was no prospect of the final hearing being effective. The issues had still not been identified and, accordingly, the final bundle had not been agreed and the witness statements had not been finalised.

33. The parties confirmed that the matters before me were:

(1) Should the Claimant’s claim be struck out on the basis of unreasonable conduct and/or failure to comply with an order of the Tribunal? (2) If not, what case management orders (including a potential order for costs) should be made?

34. A great deal of time during the first day of the hearing was spent attempting to identify the missing information as ordered to be provided by [NAME] so that a final list of issues could be determined. That required me to explain to the Claimant directly the different types of disability discrimination claims that can be brought. This exercise could and should have taken place already between the Claimant and her [APPELLANT].

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6

35. Having conducted that exercise, I sent a list of issues to the representatives identifying the claims the [APPELLANT] wished to pursue as I understood them. Those claims were [COMPANY] to two allegations of direct race discrimination and two allegations of failure to make reasonable adjustments. Mr [APPELLANT] confirmed that the list of issues was an accurate reflection of the claims the Claimant intended to bring and that nothing had been missed.

36. The two allegations of direct race discrimination were as follows:

36.1. Following an incident on 13 October 2023, at which the Claimant was the subject of racial abuse by [NAME], the Respondent failed to investigate or take action against those responsible. 36.2. From 20 November 2023, the Claimant was subjected to a lengthy investigation into her work on the [NAME].

37. The Claimant said that that was less favourable treatment because of race. She relied on a hypothetical comparator only for each allegation.

38. I accept Ms [NAME] submission that neither of those allegations are contained within the ET1. There is nothing in the grounds of claim which suggest that the Claimant believed she had been treated as now alleged because of her race. Other than ticking the box for race discrimination, and complaining about being racially abused by [NAME] in October 2023, there is no reference to her race at all.

39. There was no application to amend the claim before me. Had the claim been properly particularised on 30 January 2026, as ordered, it may have been possible for such an application to be made and addressed in time for the final hearing to be effective. Any such application would, however, be significantly out of time and likely to fail for much the same reasons given by [NAME] in his December 2025 judgment.

40. That means that in fact there are only two allegations of discrimination currently pleaded, both of a failure to make reasonable adjustments. They are as follows:

40.1. From November 2023, the Respondent had a requirement that the Claimant attend the council offices to gather evidence in support of her defence to the investigation on specific dates and for time [COMPANY] periods, during which she was not permitted to photocopy documents and take them home. 40.2. From November 2023, the Respondent had a requirement to participate in an investigation process.

41. The [APPELLANT] alleges that the [NAME] put her at a substantial disadvantage compared to someone without the Claimant’s disability, in that:

41.1. For [NAME], the Claimant was not always well enough, or mobile enough, to attend the offices on the dates and time specified and to gather and retain the information. 41.2. For [NAME], the process exacerbated the Claimant’s disability.

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7 42. I do not accept Ms [NAME] submission that those two allegations are not pleaded in the original claims. The factual matrix is set out in the claim form, as is the necessary causative link with the Claimant’s disability. The fact that it was not clear until the first day of the hearing whether the Claimant was in fact pursuing those claims as allegations of s.20/21, particularly given that no reference was made at the hearing before EJ Davison to a claim of s.20/21, does not detract from that.

43. I have considered the strike out application on the basis that the claim before the Tribunal is those two allegations of failure to make reasonable adjustments only.

44. I will not rehearse each party’s submissions on the strike out in full but will provide a brief summary.

45. Ms [NAME] focused her application on rule 38(1)(c) (failure to comply) rather than rule 38(1)(b) (unreasonable conduct). That was appropriate. She submitted that there had clearly been non-compliance with the order of [APPELLANT] because the Claimant had failed to provide the missing information ordered. She maintained that that non-compliance was significant because, without that information, the Respondent could not understand the claim it had to meet. She invited me to exercise my discretion to strike out the [APPELLANT] claim on the basis that a fair trial is no longer possible within this window (that much is not in dispute) and that the prejudice to the Respondent of the Claimant’s non-compliance is significant. The Respondent has been unable to draft a proper response or draft witness statements.

46. She noted that, in his judgment refusing the application to amend, [NAME] had already noted that if this listing was lost the matter would not be heard for many months. Three of the four witnesses the Respondent intends to call to answer the now identified claims no longer work for the Respondent and there is difficulty in accessing their emails.

47. Mr [APPELLANT] denied that there had been non-compliance (or indeed unreasonable conduct). Initially, he indicated that the Respondent had failed itself to comply with the order of [RESPONDENT] (at paragraph 9) to disclose emails in their possession by 9 January 2026. He appeared to be suggesting that the Claimant needed information within those emails to provide the missing information. He was unable to explain why and, indeed, was ultimately able to articulate the claims with my assistance notwithstanding that the Respondent has not disclosed any emails as requested.

48. For completeness, I do not accept that there has been material non-compliance with [RESPONDENT]’s order by the Respondent, as alleged. The Respondent’s [APPELLANT] has indicated that it has no relevant emails to disclose. The Claimant has not identified any basis upon which I could go behind that position.

49. Mr [APPELLANT] reiterated his position that the Claimant had complied with the order by providing further and better particulars. When I asked him to take me to the emails or documents where the missing information was provided, he said that the Claimant’s claim had already been adequately particularised in documents sent to the Respondent before the hearing before EJ Davison. I was not taken to any such documents and, in any event, that submission is illogical. The Claimant was unable

Case Number: 3303977/2024

8 to identify the information at the hearing before EJ Davison. If she had been able to do so, the information would not be missing and there would have been no need for [APPELLANT]’s order.

50. Mr [APPELLANT] also maintained that the missing information was identified within the Disability Assessment bundle, as explained above. Whilst it was possible for me to extract some of the necessary information from that bundle, it does not go far enough to comply with the order of [RESPONDENT]. It is not the role of the Respondent or the Tribunal to comb through documents submitted in respect of one issue (namely establishing disability under s.6 EqA 2010) to find information necessary for another issue (identifying the claims).

The law

51. In considering an application for strike out, I must adopt a two-stage approach as set out in [NAME] v [COMPANY] 0098/16. I must first decide whether any of the grounds in rule 38(1)(a)-(e) of the 2024 Procedure Rules are established.

52. For applications based on unreasonable conduct, I must be satisfied that the conduct involved deliberate and persistent disregard to required procedural steps. The reference to the conduct being deliberate likely excludes mere oversight or negligence which is not the result of any intentional or deliberate failure to implement proper systems for managing case progress - [NAME] v [NAME] (Scotland) [COMPANY] [NAME], EAT.

53. If satisfied that either or both of those grounds are established, that does not mean the claim must be struck out. Instead, I must go onto consider whether to exercise my discretion to strike out.

54. The power to strike out must be exercised in accordance with the overriding objective to act fairly, justly and proportionately.

55. For non-compliance cases, that involves considering the magnitude of the non- compliance, whether the default was the responsibility of the Claimant or her [APPELLANT] and what disruption, unfairness or prejudice has been caused.

56. The key question, under both grounds, involves considering whether a fair trial is still possible ([COMPANY] v [NAME] 2001 IRLR 324, EAT). Save in exceptional cases, strike out is not intended as a punishment.

57. However, the question of whether a fair trial is possible does not need to be determined in absolute terms. Where party’s unreasonable conduct has resulted in a fair trial not being possible within the allocated window, the power to strike out is triggered and whether the power ought to be exercised depends on whether it is proportionate to do so ([NAME] v [NAME] (Scotland) [COMPANY]).

58. Where there has been, or is likely to be, a significant delay in proceedings, the passage of time may itself result in serious prejudice to the ability of a respondent fairly to defend itself, whether because important witnesses or documentary evidence are no longer available, or because of the impact of the passage of time

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9 on the ability of witnesses to recall events ([NAME] v [COMPANY] [COMPANY] [2026] EAT 50).

59. The appropriate approach to the fair-trial issue is highly fact-sensitive and will depend upon the particular nature of the problem, and circumstances of the case, whichever particular sub-paragraph or sub-paragraphs of the rule are being invoked.

Findings and conclusions

60. I am entirely satisfied that the Claimant has failed to comply with an order of the Tribunal. The missing information was not identified clearly until the hearing before me, nearly three months after it was due, and only after I had looked across a number of different documents to identify the claims and taken a proactive role in assisting the Claimant.

61. In the circumstances, it is not necessary for me to consider whether there has been unreasonable conduct at this stage.

62. I therefore turn to consider whether I ought to exercise my discretion to strike out the claim or whether a less draconian step is more proportionate.

63. The non-compliance is significant. The Claimant was given a second opportunity by [APPELLANT] to properly identify her claims, having failed to do so clearly in the claim form. Without that identification of the claims, the Respondent could not know the case it had to meet. It is not the role of the Respondent to look through various documents and seek to identify what claims the Claimant might be bringing. Particularly in a case where the Claimant is represented, as she has been here for some time, it is for the Claimant to do so.

64. It is not entirely clear to me whether the fault is that of the Claimant or her [APPELLANT]. The documents submitted on her behalf were difficult to follow, contradictory and confusing but I also note that [NAME]’s order was set out clearly and is easy to follow, so there is no reason why the Claimant could not have provided her [APPELLANT] with the information missing. In the circumstances, I consider that the fault is likely that of both the Claimant and her [APPELLANT].

65. The disruption caused to the Respondent is significant. The hearing was listed (for a second time) for a full merits hearing this week. As a result of the non-compliance, it cannot proceed. Mr [APPELLANT] disputed that the fault for that lay with the Claimant. He maintained that, if the Respondent had co-operated with him, the bundle and statements could have been agreed in time. That submission overlooks the important, first step in any claim of identifying the claim and issues. The bundle and statements cannot be agreed if the issues have not been identified.

66. The result of the non-compliance is plainly that a fair trial is not possible in the allocated window. Both parties agree that the hearing cannot proceed.

67. The question remains, however, whether a fair trial is possible within a reasonable time.

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10 68. The issues have now been identified and the Respondent understands the [COMPANY] case that it has to meet. Much of the disclosure has been done. I do not anticipate that it will take much time to get this case ready for a final hearing.

69. On the basis of the much reduced list of issues, I consider that the matter could be dealt with in four days, even taking into account that a finding on disability may need to be made as part of that hearing. Given the [COMPANY] nature of the allegations, it is unlikely to be necessary for the Respondent to call all four of the witnesses it identified yesterday. I can see no reason why more than one or two witnesses would be required. Equally, the Claimant does not need to call two witnesses. I was told that Mr [APPELLANT] worked closely with the Claimant and was at the event on 13 October 2023. Given that the [APPELLANT] capability and the events on 13 October 2023 are not matters the Tribunal needs to determine, I do not think his evidence is relevant. Ms [APPELLANT], the [NAME] [APPELLANT] who attended the disciplinary hearing, may be able to give relevant evidence, but I anticipate it would be [COMPANY].

70. A four-day listing can be accommodated on 12-15 January 2027. Both parties have confirmed that they can be available on those dates. A longer listing could not accommodated before October 2028. The hearing will be via [NAME] and can be heard before a full panel, if required.

71. The parties will need to be concise and well-prepared to make that listing work. The hearing will be tightly timetabled.

72. Although three out of the four witnesses the Respondent would have liked to call have now left the [NAME], there is nothing before me to suggest that they are not willing to co-operate with the Respondent. I can accept that they might be reluctant to assist the Respondent after a lengthy period of time, but I cannot make a finding that they will be unwilling to do so.

73. If they are so unwilling, the Respondent has the option to apply for witness orders. I acknowledge that witness orders are a poor substitute for a willing witness, but they do act so as to mitigate against the risk of an unfair trial. In any event, as I set above, I do not think it is likely to be necessary for the Respondent to call all four of those witnesses.

74. The witnesses will be asked to give evidence about matters which occurred approximately three and a half years ago. Again, that is not ideal but is not such a long period of delay that memories will inevitably be impacted to the extent that a fair trial is no longer possible.

75. The Claimant did lodge a grievance, which was investigated by the Respondent, and says that she sent emails to HR raising concerns about the impact of the process on her health. The fact that there is likely to be some contemporaneous documentary evidence again mitigates against the risk of an unfair trial.

76. Where the Respondent faces difficulties in its witness or other evidence, it will be open to it to refer to the procedural history in this claim and the passage of time during its submissions. The Tribunal will take into account, when assessing

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11 credibility, the passage of time and the ability of the Respondent to answer the claims given how late they were identified.

77. Taking all of the relevant factors into consider, I consider that a fair trial remains possible within a reasonable period of time and, accordingly, that it is not proportionate to exercise my discretion to strike out.

78. That means that the case will proceed to a final hearing on the basis of the two allegations of failure to make reasonable adjustments only.

79. In making that order, I make clear to the Claimant that any further delay compromising the effectiveness of the next hearing may result in a further application for strike out being made, and being successful.

Costs

80. I am also satisfied that it is appropriate to make an order for costs by way of compensation to the Respondent, not punishment to the Claimant, under rule 74(1) of the 2024 Procedure Rules.

81. I must first consider whether one of the grounds for making a costs order is met. If it is, I must consider whether to exercise my discretion to award costs. Finally, I must determine the amount of any award.

82. I am entirely satisfied that a ground for making costs (rule 74(1)) is made out. There has been unreasonable conduct by the Claimant or her [APPELLANT]. The Claimant has been given a number of opportunities to provide details of her complaints and failed to do so in compliance with the ET’s orders (see [NAME] v [COMPANY] 783/00).

83. I am satisfied that it is appropriate to exercise my discretion to award costs. I acknowledge that costs are the exception rather than the rule and compensatory nor punitive. The Claimant has been represented throughout and the task she was ordered to carry out, which she failed to do, was not onerous. The unreasonable conduct resulted in the hearing being adjourned. The Respondent has been put to cost of instructing counsel and incurring the cost of her brief fee and one day’s refresher in excess of £3,500 pounds. The Respondent is a local authority, with [COMPANY] means, and is accountable to the public for the use of its funds.

84. I have taken the Claimant’s means into account in considering the amount of the costs order. The Claimant does not have stable employment. She is working on a zero hours contract, earning £300 per day when work is offered to her. She noted that she is not paid sick pay or holiday pay and that work is no guaranteed going forwards. She has, however, worked five days a week for at least the past two months, earning approximately £6,000 a month and under her current assignment has the right to seven days’ notice which has not been given. Her outgoings are approximately £2,890 per month. On the figures I have been provided, she has been receiving more than her outgoings for the last two months.

85. Taking all factors into account, and acknowledging that ongoing work is not guaranteed, I order the Claimant to make a contribution towards the Respondent’s

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12 costs of this hearing in the sum of £1,000 + VAT. The Claimant will have 35 days from the sending of the order to make that payment.

Approved by:

Employment Judge Smeaton

Date: 22 May 2026

Sent to the parties on:3 June 2026.....

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For the Tribunal Office .

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Case Number: 3303977/2024

1

EMPLOYMENT TRIBUNALS

Claimant

Respondent

[NAME]-[APPELLANT]

v Welwyn Hatfield Borough Council

Heard at: Watford (via [NAME]) On: 22-23 April 2026

Before: Employment Judge Smeaton

Appearances For the Claimant: [redacted]

For the Respondent: [redacted]

JUDGMENT

1. The Respondent’s application to strike out the [APPELLANT] claim is dismissed. The claim, [COMPANY] to two allegations of failure to make reasonable adjustments, will proceed to a final hearing on 12-15 January 2027.

2. The Claimant must pay a contribution to the Respondent’s costs in the sum of £1,000 + VAT within 35 days of the day of this order.

Approved by:

Employment Judge Smeaton

Date: 27 April 2026

Sent to the parties on: 3 June 2026.....

……………….......................................

For the Tribunal Office .

Public access to employment tribunal decisions

Case Number: 3303977/2024

2

Reasons for the judgment having been given orally at the hearing, written reasons will not be provided unless a written request is presented by either party within 14 days of the sending of this written record of the decision.

The reasons given orally were the full reasons, and therefore the written full reasons would be provided if there was such a request.

Case Number: 3303977 /2024

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EMPLOYMENT TRIBUNALS

Claimant: [redacted]

Respondent: [redacted]

RECORD OF A PRELIMINARY HEARING

Heard at: Reading ([NAME])

On: 12 December 2025

Before: First Tier Tribunal Judge Davison sitting as an Employment Judge

Appearances For the claimant: [redacted] For the respondent: [redacted]

JUDGMENT

1. The claimant’s application to amend her claim to include claims of constructive unfair dismissal, victimisation and whistleblowing is refused.

Reasons

1. The relevant background to the application to amend the claim can be summarised as follows. On 15 April 2024 an ET1 was received. The claimant stated, at paragraph 8.1 of the same, that she wished to bring claims of race and disability discrimination. The summary facts to the claim were set in an appended document.

2. In the document appended to the [NAME] the claimant asserts, ‘I have also spoken to [NAME] in regards to whistleblowing, spoken to the [NAME] and the Health and safety executive (all without mentioning the Council by name) [NAME] have agreed I can whistleblow on the council…..’

3. From this I find that the claimant had discussed the possibility of which claims could be advanced prior to the service of the [NAME], the possibility of a whistleblowing claim was raised but then not specifically made in the ET1.

4. Following a preliminary hearing, on 5 December 2024, the Tribunal, in order to better understand the nature of the claims being advanced, made various Orders

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regarding details of the claims that the claimant may wish to advance. Nothing specific was provided.

5. The claim was listed for a final hearing in September 2025. This hearing did not take place due to the lack of an available Judge. However, on 28 August 2025 the claimant had filed an ‘Application to amend the particulars of Claim’. This asserted that the claimant, as a litigant in person, had failed to fully set out and identify the statutory provisions relied upon “though the factual matrix has always been set out.” It was asserted that the amended grounds attached “do not raise new factual allegations.” The claimant’s [APPELLANT] accepted at the hearing that this was not a correct categorisation of the amendment application. It was not a simple rebadging exercise of already pleaded facts. On multiple occasions he stated that the claims as initially pleaded were unclear and this was an application to add new claims and raise new factual matters.

6. The amended particulars of claim are at page 34 of the bundle prepared for the hearing. I find that these are not particularised. By way of example the victimisation claim states no more than “the suspension and fraud investigation were reprisals for raising a protected act (complaint of racial abuse).” There are no specifics as to when this protected act was made, to whom it was made or any of the usual detail that would be required.

7. The claimant has also filed a list of issues for the preliminary hearing. This expands upon the amended particulars of claim but again is lacking any specific detail. Again by way of example when considering the section 15 claim the claimant advances issues such as “denial of reasonable access to evidence” and “withholding adjustments”. Without stating what evidence she has been denied access to or what adjustments were withheld. The claim is lacking any specifics against which the respondent could reply.

8. The above is a brief summary of the events leading up to the application. The full details were in the bundle provided for the hearing.

9. In the case of [COMPANY] [COMPANY] v Moore [1996] ICR 836 the Employment Appeal Tribunal (“EAT”) set out the test to be applied by a Tribunal in deciding whether to exercise its discretion to grant an amendment. It said 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. The EAT in [NAME] also set out a list of factors which are certainly relevant, which are usually referred to as the “[NAME] factors”. In brief they are: (1) The nature of the amendment i.e. whether the amendment sought is one of the minor matters or is a substantive alteration pleading a new cause of action; (2) The applicability of time limits. If a new complaint of 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; and

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(3) 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 rules for making amendments, but delay is 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).

10. In the case of [NAME] v [NAME]/0147/20/BA the EAT reminded parties and Tribunals that the core test in considering applications to amend is the balance of injustice and hardship in allowing or refusing the application. The exercise starts with the parties making submissions on the specific practical consequences of allowing or refusing the amendment. That balancing exercise is fundamental. The [NAME] factors should not be treated as if they are a list to be checked off.

11. The issue of amendment applications was more recently discussed in [NAME] v Secretary of State for Justice [2025] EAT 114.

12. All the above guidance has been considered in assessing this application. Analysis of the practical impact of granting or refusing the application must be undertaken. In determining whether to grant an application to amend, an employment tribunal must always carry out a careful balancing exercise of all the relevant factors, having regard to the interests of justice and to the relative hardship that would be caused to the parties by granting or refusing the amendment.

13. The hardship and injustice test is a balancing exercise. Lady [NAME] noted in [NAME] v [NAME] 0048/12 that it is inevitable that each party will point to there being a downside for them if the proposed amendment is allowed or not allowed.

14. I have considered the original [NAME] claim form and the documents provided in support of the application to amend.

i) nature of the amendment

15. I find the substantive amendments sought are not of clerical or typographical nature. It is a change to the heads of claim to constructive unfair dismissal, victimisation and whistleblowing. Additional facts concerning events are being relied upon and further factual evidence would need to be provided to substantiate the claims. Whilst there is some overlap as the claimant alleges that the victimisation she alleges links to her disability and/ or race claim. The proposed amendments do change the basis of the existing claims. The hearing listed in April 2026 for 3 days would almost certainly have to be vacated, more evidence provided and further legal issues to be considered if the amendment were granted.

I therefore find the amendment is not clerical or typographical but far more substantive. I find the amendment is not therefore a minor change.

ii) applicability of time limits

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16. The application would be out of time given that it is a substantive new head of claim. In order for it to be admitted the time limit would have to be extended on a just and equitable basis. The claimant had spoke to an [NAME] prior to lodging her ET1, has had assistance at various times since. It is now some time since the ET1 was lodged and the claim was set down for a final hearing. I find these claims to be out of time, this is not in dispute, but in the circumstances I do not find it would be just and equitable to extend time.

iii) the timing and manner of the application

17. An application should not be refused solely because there has been a delay in making it as amendments may be made at any stage of the proceedings. 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.

18. The Presidential Guidance on General Case Management for England and Wales notes the [NAME] provisions are not intended to be an exhaustive list. There may thus be additional factors to consider in any particular case ([NAME] v [COMPANY] 0144/16).

19. I have therefore considered all matters advanced including the [NAME] provisions. As noted the claimant’s grounds for seeking an amendment are lack of legal understanding at the time of lodging her claim as a litigant in person.

20. As noted above in [NAME] v [NAME] 2021 ICR 535, EAT, His Honour Judge James Tayler emphasised that the core test in considering applications to amend is the balance of injustice and hardship in allowing or refusing the application. The parties must therefore make submissions on the specific practical consequences of allowing or refusing the amendment. The claimant’s [APPELLANT] stated that the claimant would be prohibited from raising heads of claim that were, at least in part, apparent in her [NAME]. She would therefore be denied justice.

21. The claimant’s [APPELLANT] stated there was no real hardship caused to the respondent or prejudice if the application were to be granted. Whilst some additional facts would need consideration these matters can be accommodated and so the overall balance lay in the claimant’s favour. For the respondent, a detailed grounds of resistance had been served dated 2 September 2025. Having reviewed these factors I find that there have been several additional factual elements advanced by the claimant. There is a lack of detail to the claims now advanced. I also find it of note that an Employment Judge had directed that any further claims needed to be clarified over 12 months ago.

22. The claimant can advance her claims for race and disability discrimination and any facts that go to establish the same can be relied upon. She still therefore has claims to advance. If the hearing date scheduled in April 2026 is lost the matter may well not be relisted for many months, this can affect the memory of those involved, leave the matters hanging over everyone concerned and delay the

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outcome of the hearing. The respondent would also be put to a great deal more work in addressing, in particular, the allegations of whistleblowing.

23. I finally note the timing of this application, it was not served until very shortly before the listing of the final hearing. Although this hearing was adjourned the claimant has had assistance initially through [NAME] [APPELLANT] was mentioned. The hearing is listed for 3 days in April 2006. Whilst arguably the hearing could be delayed and costs awarded to the respondent for any inconvenience and delay caused (although it is possible that the claimant would have insufficient funds to be able to pay), for the reason given above and in considering all matters in the overall balance, the [NAME] factors and the others listed above, I refuse the application to amend. The fact that the claimant is a litigant in person does not excuse her failure to set out the narrative on which she wishes to advance her claims. Further, as noted above the Tribunal had also considered the same and provided a further opportunity for the claimant to clarify the claim she wished to advance over 12 months ago. To allow such substantive amendments, at this late stage, I find would unfairly tip the balance of injustice and hardship against the respondent.

24. The application to amend is therefore refused.

Approved by: First Tier Tribunal Judge Davison sitting as an Employment Judge

12 December 2025

Sent to the parties on:

9 January 2026

For the Tribunal Office:

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