In person For the v Mrs. K. Parkinson, Solicitor — 2020

This was a case management judgment on the Claimant’s application to amend her claim. The original ET1 had pleaded direct discrimination and harassment related to sexual harassment, but the Claimant had withdrawn the direct discrimination claims. At the earlier Preliminary Hearing, the claim had already been confined to the week commencing 16 December 2019, with events between January and June 2019 treated as background.

Applying Selkent, Cocking, Kuznetsov and the Presidential Guidance, the tribunal held that the proposed amendment in paragraph 1 was not a wholly new cause of action. It was treated as a relabelling of background material already included in the claim form and grievance, so the balance of prejudice favoured the Claimant and leave to amend was granted. The tribunal noted that time limit issues were relevant but not determinative, and that any final decision on time or continuing act issues would depend on the evidence at trial.

The proposed amendment in paragraph 2 was refused. The tribunal found it was a wholly new complaint, not mentioned in the ET1 or in any grievance, and said the Claimant had not explained the delay in raising it. The Respondent said the allegation had taken it by surprise and that it concerned a jovial conversation between the Claimant and a colleague she found attractive; the tribunal did not decide the factual dispute. On balance, prejudice favoured the Respondent, so leave to amend was refused.

The tribunal also allowed the Respondent, if so advised, to amend its Response by 11 September 2020 so that it could reply to the factual assertions contained in the amended case. No remedy was awarded in this judgment, and the tribunal separately noted that any injury to feelings valuation would depend on the Claimant succeeding in a substantive discriminatory harassment claim.