Case 2300984/2018 · Employment Tribunal
Ms Johns (Counsel) For the v Mr Henry (Solicitor) PRELIMINARY HEARING — 2019
- Case reference
- 2300984/2018
- Decision date
- 31 March 2019
- Jurisdiction
- England & Wales
- Judge
- Employment Judge Webster Appearances
- Venue
- London South
Parties
2 namedClaimant
Ms Johns (Counsel) For the
Respondent
Key findings
Tribunal's reasoningThe claimant, who remained employed by the respondent, had severe asthma which the respondent accepted amounted to a disability. He said that smoke near his workspace exacerbated his condition and that the respondent had not taken sufficient steps to protect him, while also alleging that he had been treated badly because he raised those concerns. The preliminary hearing on 27 February 2019 concerned an application to amend the original ET1 dated 20 March 2018, which was largely a chronological list of events with little narrative.
The tribunal applied the Selkent approach, as restated in Kuznetsov, and referred to the Presidential guidance on case management. It weighed the nature of each proposed amendment, the timing of the application, any time limit issues, and the relative hardship to the parties. It treated much of the amended pleading as background material or clarification of the existing complaint about smoking on site, and allowed paragraphs 1-30 on that basis.
The tribunal allowed amendments for failure to make reasonable adjustments, indirect discrimination, discrimination arising from disability, harassment based on the 31 May 2017 intranet notice, victimisation, and whistleblowing detriment. It considered that the claims arose from the same broad factual situation and that refusing amendment would cause the claimant greater hardship than allowing it would cause the respondent. The harassment amendment was limited to the intranet notice; the separate stairwell conversation was not allowed. In the whistleblowing section, paragraph 47a was withdrawn because those incidents predated the manager's awareness of the disclosure on 3 August 2017.
The tribunal refused only the added stairwell conversation as a harassment incident, finding it was a one-off event, apparently out of time, and not included in the original ET1. No substantive merits decision or monetary award was made at this hearing; the orders were to be dealt with separately.
Claims and outcomes
6 findings recorded| Claim type | Issue or finding | Outcome | Protected characteristic | Award |
|---|---|---|---|---|
| Disability discrimination | Amendment allowed for failure to make reasonable adjustments at paragraphs 32-35. The tribunal treated the complaint about smoking near the claimant's work area, and the later move away from his original laboratory, as an arguable continuing state of affairs. | Upheld | Disability | — |
| Disability discrimination | Amendment allowed for indirect discrimination at paragraphs 36-38. The tribunal treated this as a relabelling/clarification of the existing disability discrimination facts about smoking on site and the respondent's response. | Upheld | Disability | — |
| Disability discrimination | Amendment allowed for discrimination arising from disability at paragraphs 39-40. The claimant's move to another laboratory because of his exacerbated asthma, and the resulting reduction in workload and expertise, was held to arise out of the same factual situation. | Upheld | Disability | — |
| Harassment | Amendment allowed in relation to the 31 May 2017 intranet notice about moving the first smoking shelter. The separate stairwell conversation around May 2017 was not allowed to be added because it was out of time and had not been pleaded in the original ET1. | Upheld | Disability | — |
| Victimisation | Amendment allowed. The claimant relied on a grievance dated 17 March 2017 as the protected act and later relocation to a different laboratory as the detriment. | Upheld |
Legal tests applied
4 references- Selkent Bus Company Ltd (trading as Stagecoach Selkent) v Moore [1996] IRLR 661
- Kuznetsov v Royal Bank of Scotland [2017] EWCA Civ 43
- Presidential guidance on case management
- Baker v Commissioner of Police of the Metropolis UKEAT/0201/09
Official outcome judgment PDF
Gov.uk primary recordThe official judgment PDF on gov.uk contains the tribunal's outcome, reasoning, and any remedy details. Where this page does not yet show extracted outcomes for every claim, use the PDF as the authoritative source.
Published on gov.uk under the Open Government Licence v3.0.
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