Mr Brown (Solicitor) For the v Mr Graham (Solicitor) — 2021

The claimant originally presented claims of disability discrimination and unfair dismissal. By the time of this preliminary hearing, the disability discrimination claim had been withdrawn and was recorded as formally dismissed by Judge Martin on 1 March 2021. The hearing before Employment Judge Webster was confined to the claimant's application to amend the pleadings to add a sex discrimination allegation arising from the decision to dismiss her on 31 January 2020.

The claimant argued that the proposed amendment was a relabelling of facts already pleaded, that the respondent would not be disadvantaged, and that the application was made promptly once new representatives identified the omission. The respondent said it was a new and out-of-time claim, that the claimant had been represented when she filed the original claim, and that allowing the amendment would require additional witnesses and increase the length of the hearing.

The tribunal applied the amendment framework in rule 29, the general case management and procedural powers in rule 41, and the overriding objective in rule 2. It carried out the balancing exercise described in Selkent Bus Co Ltd v Moore, had regard to Vaughan v Modality Partnership [2021] IRLR 97, and considered the Presidential guidance and Abercrombie v Aga Rangemaster Ltd [2013] EWCA Civ 1148 on whether the proposed pleading would involve substantially different factual enquiry. The judge found that, although the amendment added a new claim, it was based wholly on facts already pleaded and amounted to a relabelling of those facts rather than a materially different case.

The tribunal held that the respondent would not be required to investigate different factual issues or call materially different evidence, and that any prejudice to the respondent was limited because little preparation had been done and there was time to amend the response. Although the application was out of time, the judge considered it just and equitable to extend time, accepted that refusing the amendment would prejudice the claimant more than the respondent, and allowed the amendment. No monetary remedy was awarded in this hearing, and the merits of the sex discrimination allegation were not determined.