Mrs M Supersaud v Gapuma (UK) Limited and 2 others — 2022

This was a preliminary hearing about amendment, without prejudice correspondence, and whether Claim 2 against R2 and R3 had to be rejected for want of early conciliation. The tribunal adjourned the without prejudice issue with liberty to restore. It held that Claim 2 could stand against R1 because the early conciliation certificate already covered that respondent, but that Claim 2 was not valid against R2 and R3 because the section 18A Employment Tribunals Act 1996 conditions precedent were not met. Claim 3 was held to be validly brought against R2 and R3 because early conciliation certificates existed for both respondents.

On amendment, the tribunal held that Claim 1's pleaded protected disclosure dates, described as occurring 'on or about 30 January 2020 and 25 June 2020', were sufficiently particularised and did not need amendment. It also held that the race allegations at 4.2.2, 4.2.3 and 4.2.5 in the Further Particulars were genuine further particulars of the pleaded race harassment case and could proceed without permission to amend. The only race issue refused at that stage was 4.2.4, which the tribunal treated as a wide-ranging pay allegation involving several individuals and a substantially different evidential inquiry.

Leave to amend was refused for the new sex discrimination allegations at 4.2.1, 4.2.6, 4.2.6.1, 4.2.6.2 and 4.2.7. The tribunal applied the amendment approach discussed in Vaughan v Modality Partnership Limited, Selkent, Cocking v Sandhurst and Abercrombie v Aga Rangemaster, balancing hardship, delay and the extent to which the proposed pleadings would enlarge the factual inquiry. It directed the parties to agree a list of issues and consider whether judicial mediation remained appropriate.