Dr C Tene, Solicitor For the v Mr N Gill, Solicitor — 2020

This was a judgment on an application to amend, not a merits decision on the underlying discrimination allegations. The claimant, a Black African national origin staff nurse employed by Livewell Southwest CIC from 4 March 2019 to 31 October 2019, had originally presented claims of race discrimination and race harassment. She later sought to amend to add a victimisation claim arising from a reference given by the second respondent after her employment ended.

The tribunal recorded that the claimant had raised concerns with the respondent on 30 September 2019, resigned on 31 October 2019, and made a formal grievance on 15 November 2019. A reference supplied by the second respondent led to the withdrawal of a job offer on 16 January 2020. The claimant did not know the contents of the reference until 15 July 2020, and she applied to amend on 30 July 2020 after obtaining a copy of it through a subject access request.

Applying the authorities on amendment, including the Cocking test and Selkent balancing exercise, the tribunal held that the proposed victimisation allegation was linked to the original race discrimination claim and was therefore properly treated as relabelling rather than a wholly new and unrelated cause of action. On that basis, the time limit point did not prevent the amendment. The tribunal also found that the balance of injustice favoured allowing the amendment because the case was still at an early stage, no trial bundle or witness statements had been exchanged, and the respondent would still be able to defend the new allegation.

During the hearing the claimant withdrew her claims against the first named respondent, Karen McLachlan. The tribunal also noted that the victimisation claim was no longer pursued against her personally and that the claimant no longer relied on the issuing of these tribunal proceedings as a protected act. The final amendment was limited to one protected act, the formal grievance dated 15 November 2019, and one detriment, the alleged provision of a bad and misleading reference by the second respondent.