Ms F Burns v University Hospital Coventry and Warwickshire NHS Trust — 2019

This judgment did not decide the substantive liability issues. It dealt with two interlocutory applications during the final hearing: the claimant’s application to amend her disability discrimination case so that it included the appeal against dismissal, and the respondent’s application for the tribunal to recuse itself for apparent bias. The claimant had been employed as a Health Care Assistant from 2 April 2012 to 7 July 2017 and had presented her claim on 10 October 2017 before her appeal was heard.

Applying the principles in Selkent Bus Co Ltd v Moore, the tribunal held that the proposed amendment was substantial because it added a new act, namely the appeal conducted by Mr Kee, to the existing section 15 and section 21 Equality Act claims. The tribunal accepted the claimant’s explanation that, as a litigant in person, she had not appreciated that the appeal needed to be specifically pleaded, and it considered that she acted promptly once the point was identified. It found that any prejudice to the respondent could be managed by allowing amendment of the response and a supplementary witness statement, whereas the claimant would suffer substantial prejudice if the appeal was excluded.

The tribunal also dealt with the respondent’s submission that the appeal could not form part of the disability discrimination case because the claim form pre-dated the appeal. It referred to Baldeh v Churches Housing Association of Dudley & District Ltd, Taylor v OCS Group Ltd, and the Employment Tribunal Rules on case management and questioning witnesses. The tribunal permitted the amendment and, in doing so, noted that the appeal was part and parcel of the dismissal process for the unfair dismissal complaint, while also being capable of forming part of the disability discrimination allegations once properly pleaded.

The recusal application was refused. Applying Porter v Magill, the tribunal held that a fair-minded and informed observer would not conclude that there was a real possibility of bias. It said its questions to Mr Kee and its handling of the amendment issue were consistent with its duties under Rule 41 and the overriding objective, including assisting an unrepresented claimant and managing the case fairly. The order at the end of the judgment stayed the claim until the reasons were sent to the parties.