in person For the v Respondent — 2020

Mrs Ramsey had been employed by South London and Maudsley NHS Trust from June 2011 until 31 January 2018, when her employment ended under the Trust’s Mutually Agreed Resignation Scheme and a settlement agreement signed on 21 December 2017. The agreement required the Trust to provide a reference on Trust headed paper in response to a written request from a prospective employer. The claimant later applied for a role within the Trust on 14 May 2019, passed the first automated sift, but her application was ultimately rejected on 22 July 2019 after pre-employment checks, including a reference from a former manager who said he would not re-employ her.

The original ET1 filed on 2 August 2019 pleaded breach of contract only, referring to an alleged breach of the settlement agreement by not providing a fair reference. It did not tick race discrimination and did not mention race discrimination in the narrative. At a case management stage, the claimant sought to amend the claim to add race discrimination, and later expanded the application to include direct discrimination, victimisation, harassment, negligence and vicarious liability. On 13 August 2020 she withdrew the breach of contract claim, and the tribunal held that once withdrawn there was no live claim before it to amend, and no restoration application had been made.

In the alternative, the tribunal applied the Selkent principles and refused the amendment applications. It held that the proposed race discrimination claim was a substantial new cause of action rather than a minor correction, that it was out of time by more than nine months, and that the claimant had not given a sufficient or persuasive explanation for failing to bring race discrimination in the original ET1 or for the later delay. The tribunal accepted that the claimant was an experienced trade union representative with knowledge of employment law and time limits, and found that the ET1 and later supporting material gave no adequate basis for the late amendment.

The tribunal therefore refused all amendment applications. It recorded that the respondent’s strike-out application fell away in light of that decision and made no judgment on the withdrawal of the original breach of contract claim. No merits determination was made on the proposed discrimination, victimisation, harassment, negligence or vicarious liability allegations, and no monetary award was made.