Ms L Walker v AND University Hospitals Dorset NHS Foundation Trust — 2021

Ms L Walker applied to amend her claim to add a further detriment allegation to her existing s.44 ERA 1996 case, namely that University Hospitals Dorset NHS Foundation Trust failed to accommodate and/or properly explore home working. The tribunal recorded that the claim presented on 21 September 2020 already pleaded detriments under s.44(1)(d) and (e) and discrimination on the grounds of disability and pregnancy/maternity. It noted that home working was not specifically pleaded in the ET1, although the grounds of claim referred to concerns about attending work because of covid-19 and the respondent’s response to a request to work from home.

Applying the Selkent/Cocking amendment principles, the tribunal treated the proposal as a new factual allegation added to an existing cause of action and carried out the balance of injustice and hardship exercise. It accepted that the claimant had not explained why the allegation had not been included earlier and noted the time-limit point and the doctrine that relation back does not apply in the Employment Tribunal. However, it found the respondent would suffer limited prejudice because the case was still at an early stage, no evidence was said to have been lost, and the home-working issue had already arisen to some extent in the grievance process and in the existing factual matrix.

The tribunal concluded that the balance of hardship favoured the claimant and granted the amendment. It also made clear that the respondent could still argue at the final hearing that the new allegation had not been presented in time, and that point was to be set out in the amended response. No decision was made on the merits of the underlying detriment or discrimination claims in this judgment.