In person For the v Ms Gyane – Counsel — 2019

This preliminary hearing on 30 October 2019 before Employment Judge Martin concerned the claimant’s application to amend his claim to add race discrimination. The claimant had presented his ET1 on 6 June 2019 after early conciliation from 7 April 2019 to 7 May 2019, and the effective date of termination was 9 January 2019. The tribunal noted that the ET1, narrative and attached emails did not mention discrimination, so the proposed race discrimination allegation was a new cause of action. The claimant said he had received legal advice on 12 June 2019 and had also raised discrimination with ACAS, but he did not apply to amend until 11 October 2019.

The tribunal applied section 123 Equality Act 2010 and the authorities cited by the respondent, including British Coal Corporation v Keeble, Selkent Bus Co Ltd v Moore, and Robertson v Bexley Community Centre. It found that the race discrimination claim was substantially out of time and that the claimant had not shown he was unable to present it in time. The judge noted there was no medical evidence to support the claimant’s explanation that a mental impairment prevented him from acting, and relied on the fact that he had been able to instruct a solicitor, make a subject access request, contact the Equality Advisory Service, and prepare a schedule of loss.

The tribunal also found that it would not be just and equitable to extend time. The claimant’s account of direct discrimination concerned a single tasting incident in around September or October 2018, which he said he tried to make light of and about which he did not complain or raise a grievance. The tribunal held that allowing the amendment would cause hardship and prejudice to the respondent because memories would have faded and the incident would be difficult to recall. The application to amend to include discrimination was therefore refused. The judgment records that the remaining breach of contract issues were listed for a full merits hearing on 7 February 2020.