Mr Y Ceesay v City Facilities Management (UK) Ltd — 2019

At a preliminary hearing, Employment Judge Licorish considered the claimant's existing unfair dismissal complaints and his application to clarify and amend the claim to include direct race discrimination. The claimant, who described himself as black and of African origin, alleged that his dismissal for gross misconduct after a dispute about annual leave to go to the Gambia was the treatment complained of. He named two comparators and identified further matters he wished the final tribunal to consider when deciding whether race discrimination should be inferred.

The tribunal held that permission to amend was required because the ET1 contained factual allegations about the disciplinary charge and dismissal but did not set out a recognisable pleaded direct race discrimination complaint. Applying the amendment principles referred to in the Presidential Guidance and Selkent, and considering Chandhok and related authorities, the tribunal found a link between the proposed amendment and the facts already described. It accepted that the claimant had given reasons for the way he had presented the claim, including that English was not his first language, and found that the balance tilted towards allowing the amendment.

The tribunal therefore allowed the claim to be amended to include direct race discrimination based on dismissal. It also stated that, even if the amendment had been treated as adding an entirely new cause of action, it would have been just and equitable to extend time, because the complaint was limited to dismissal and involved factual disputes for a final hearing.

The respondent did not pursue strike-out if the amendment was allowed but sought deposit orders in respect of the claim as a whole. The tribunal referred to rule 39 and Van Rensburg, and found no proper basis for doubting the likelihood of the claimant establishing the facts essential to his unfair dismissal and direct race discrimination complaints. It declined to make a deposit order. The ordinary unfair dismissal, automatically unfair dismissal, and direct race discrimination complaints were directed to continue; no remedy was awarded at this preliminary stage.