In Person v Respondent — 2022

The tribunal heard a preliminary application on 1 July 2022 at Birmingham before Employment Judge Wedderspoon. Mr Menns, who is black Caribbean and had worked as a night porter since 2002, had brought claims of race discrimination, harassment related to race and victimisation. He also sought permission to amend the claim to add constructive unfair dismissal after his dismissal had been appealed and he had been reinstated, but the tribunal applied the amendment principles in Selkent and the appeal principle in Kaur v Leeds Teaching Hospitals NHS Trust and Patel and Folkestone, and refused the amendment because the proposed claim was a new cause of action with little reasonable prospect of success.

The tribunal struck out the 2017 harassment allegation and the 2017 victimisation allegation. Those complaints concerned, respectively, a summer 2017 allegation that white staff referred to black staff as "monkey boys" and a separate August 2017 allegation that the claimant was falsely accused of swearing at a colleague. The tribunal found those matters were significantly out of time, that Mr Elvin had left the respondent by the end of 2017, and that there was no realistic basis for treating the 2017 allegations and the later 2020 events as one continuing act.

The respondent's strike-out or deposit application failed in relation to the October 2020 holiday-refusal allegation and the 22 December 2020 dismissal allegations of direct race discrimination and victimisation. The tribunal held that the holiday refusal could arguably form part of a continuing course leading to dismissal, and that the dismissal allegation was fact-sensitive and required evidence. It therefore refused to strike out those claims or make a deposit order, and listed the case for a final hearing. No merits findings or remedy were made in this judgment.