Case 2200811/2023 · Employment Tribunal

In person For the v Ms J Gannon, Solicitor — 2023

Case reference: 2200811/2023
Decision date: 5 May 2023
Jurisdiction: England & Wales
Judge: Employment Judge Brown Appearances

Indexed: 23 May 2026

Parties

2 named

Claimant

In person For the

Respondent

Ms J Gannon, Solicitor

Key findings

Tribunal's reasoning

The hearing on 4 May 2023 before Employment Judge Brown at London Central, conducted by CVP, was an open preliminary hearing concerned with amendment, strike out and deposit order issues. The tribunal refused the claimant’s application to replace her original particulars with her much longer amended grounds of complaint. Applying Selkent Bus Company v Moore, it held the amendment was a substantial change introducing new factual matters and apparently new or different complaints, many of which would be out of time, and that there was no good reason to extend time. It also found that the respondent would face significant additional time and cost, while the claimant could still rely on her original particulars and add detail in witness evidence.

The tribunal held that the claimant had substantially complied with the unless order requiring clarification of the constructive dismissal case, so neither strike out nor a deposit order was made. It considered the resignation email said to date from 14 September 2021 in the written record, but held that the words were not unequivocal on their face as to the date on which employment ended and that the objective meaning had to be decided at final hearing with the full surrounding context. In explaining that approach, the tribunal referred to Gale Ltd v Gilbert and East Kent Hospitals University NHS Foundation Trust v Levy.

The tribunal then identified the issues for the final hearing, including constructive and ordinary unfair dismissal, automatic unfair dismissal connected with the flexible working request, direct pregnancy and maternity discrimination under s18 EqA 2010, indirect sex discrimination under s19 EqA 2010, detriment under s47E ERA 1996, the pleaded s80G(1) complaint about the handling of the flexible working application, and breach of contract / notice pay. It said the discrimination and detriment allegations were fact-sensitive and could not be resolved on a strike-out or deposit application, and referred in that context to Hendricks v Commissioner of Police of the Metropolis, Arthur v London Eastern Railway Ltd, Shamoon, and Van Rensburg. No substantive liability findings or monetary award were made at this hearing.

Claims and outcomes

7 findings recorded

Claim type	Issue or finding	Outcome	Protected characteristic	Award
Constructive dismissal	Open preliminary hearing only. The tribunal refused strike out and held the constructive dismissal / trust and confidence case was arguable, including the question of whether the claimant resigned on 14 September 2021 or later; the merits were left for final hearing.	Other	—	—
Unfair dismissal	Open preliminary hearing only. The tribunal did not strike out the ordinary unfair dismissal complaint because it could not conclude that the claimant lacked two years' service; it said the resignation date remained arguable on the papers.	Other	—	—
Flexible working	Open preliminary hearing only. This reflects the automatic unfair dismissal complaint said to arise under s104C ERA 1996 in connection with the flexible working request; the tribunal did not determine liability.	Other	—	—
Pregnancy and maternity discrimination	Open preliminary hearing only. The tribunal identified the s18 EqA 2010 pregnancy and maternity discrimination allegations as fact-sensitive and said they could not be struck out or the subject of a deposit order at this stage.	Other	Pregnancy and maternity	—
Sex discrimination	Open preliminary hearing only. The indirect discrimination allegations under s19 EqA 2010 were left to the final hearing; the tribunal considered the PCP, disadvantage and justification issues required full fact-finding.	Other	Sex	—

Legal tests applied

7 references

Official outcome judgment PDF

Gov.uk primary record

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