Case 1304751/2023 · Employment Tribunal
Mrs S Henson v AMG Consultancy Services Limited (t/a AMG Nursing and Care Services Ltd) — 2023
- Case reference
- 1304751/2023
- Decision date
- 12 December 2023
- Jurisdiction
- England & Wales
- Judge
- Employment Judge Maxwell Appearances
Parties
2 namedClaimant
Mrs S Henson
Key findings
Tribunal's reasoningThis was a preliminary hearing on whether the claimant's further and better particulars were already within the ET1, whether amendments should be allowed, and whether any part of the claim should be struck out or made subject to a deposit order. The claimant had contacted ACAS on 20 June 2023 and presented her claim on 26 June 2023. The ET1 ticked unfair dismissal and disability discrimination, and the narrative referred to a grievance about discrimination, alleged "so bipolar" comments by a manager, changes to duties with less than a day's notice, and a later resignation on 20 July 2023.
Employment Judge Maxwell held that the original ET1 included a harassment complaint about the manager's comments and a victimisation complaint in relation to detriments (a), (b) and (c), because the grievance was treated as the protected act and the alleged detriments were said to follow it. Detriment (d) was not within the original ET1 because it post-dated the claim form. The judge also said the ET1 included an express constructive unfair dismissal claim, but that it should not have been accepted because the claimant had stated that her employment was continuing. There was no protected disclosure claim in the original ET1, because the grievance was not pleaded as having been made in the public interest.
The tribunal allowed amendment to add protected disclosure detriment claims, an automatic unfair dismissal claim under ERA section 103A, and detriment (d). Applying the Selkent line of authorities and the authorities on strike out and deposit orders, the judge found that the application came at an early stage, would not require a materially different factual enquiry, and would not cause meaningful prejudice to the respondent. He noted some doubt about whether the claimant could prove the required public interest belief, but not enough to say the proposed claims had no or little reasonable prospect of success. The application for strike out and deposit orders was refused, and any time-limit issues were left for the final hearing.
Claims and outcomes
5 findings recorded| Claim type | Issue or finding | Outcome | Protected characteristic | Award |
|---|---|---|---|---|
| Harassment | Held on a fair and non-technical reading to be within the original ET1, based on the line manager's repeated "so bipolar" comments. No final merits finding was made; the claim was not struck out. | Other | Disability | — |
| Victimisation | Held to be within the original ET1 as detriments (a), (b) and (c) said to follow the grievance. Detriment (d) was treated as needing amendment; no final merits finding was made. | Other | Disability | — |
| Constructive dismissal | The ET1 included an express constructive unfair dismissal claim, but the judge said it should not have been accepted because the claim form stated that employment was continuing. | Other | — | — |
| Whistleblowing | No protected disclosure claim was pleaded in the original ET1. Permission to amend was granted to add protected disclosure detriment claims based on the grievance, although the judge noted doubt about the public interest element. | Other | — | — |
| Unfair dismissal | Permission to amend was granted to add an automatic unfair dismissal claim under ERA s.103A. The judge noted that ordinary unfair dismissal was not available because the claimant lacked qualifying service. | Other | — | — |
Legal tests applied
11 references- Selkent factors
- balance of justice
- Abercrombie v Aga Rangemaster Ltd
- Vaughan v Modality Partnership
- North Glamorgan NHS Trust v Ezsias
- Ukegheson v Haringey London Borough Council
- Anyanwu v South Bank Students' Union
- Ahir v British Airways PLC
- Van Rensburg v Royal Borough of Kingston upon Thames
- Rule 37(1)(a) no reasonable prospect of success
- Rule 39(1) little reasonable prospect of success
Official outcome judgment PDF
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