J Isidore v WAC Arts — 2023

The claimant had presented claims for constructive unfair dismissal, race discrimination and disability discrimination. She later sought permission to amend the claim to add sex discrimination, relying on email exchanges comparing how an intruder report had been handled for a colleague with how her own lone-working and safety concerns were handled.

Employment Judge Burge applied the amendment principles in Selkent Bus Co Ltd v Moore, with the practical approach described in Vaughan v Modality Partnership. The tribunal noted that the proposed amendment was brought out of time, and that the claimant already had related claims proceeding, so she would suffer some hardship if the amendment were refused. However, the judge found that the proposed sex discrimination allegation was not set out in the original claim form, and that the email material did not on its face show treatment because of sex.

The tribunal accepted that the intruder report and the claimant's lone-working concerns involved different circumstances. It held that a difference in treatment and a difference in protected characteristic were not enough, referring to Madarassy, and said the claimant had not identified anything more to support an inference of sex discrimination. The judge also took into account the weak merits of the proposed amendment, citing Kumari, and concluded that it would not be fair to expose the respondent to a late amended claim with little prospect of success. The application to amend was refused.