Miss I. Ekwobi v London Borough of Bexley — 2022

The claimant had brought claims for constructive unfair dismissal, race discrimination and disability discrimination. She applied to amend her claim to add indirect sex discrimination, said to arise from the respondent's refusal to permit flexible or compressed hours during the period when schools were closed because of Covid-19 and she was dealing with home-schooling as a single parent. The respondent opposed the amendment, pointing out that the ET1 did not mention sex discrimination and that the application was made late.

Applying Selkent Bus Co Ltd v Moore and the EAT guidance in Vaughan v Modality Partnership, the tribunal held that the proposed sex discrimination complaint was either a relabelling exercise or very close to one. It found that the material facts relied on for the indirect sex discrimination case were already in the claimant's chronology, including the flexible-working request, the refusal, and the childcare pressures said to flow from her position as a single parent. The tribunal also noted that the claim may have been out of time, but at this stage there was at least a prima facie basis for extending time on a just and equitable basis.

The tribunal weighed prejudice and hardship and concluded that the balance favoured the claimant. If amendment were refused she would be deprived of any claim or remedy in respect of the conduct, whereas the respondent had known the factual basis of the complaint since August 2021 and had not suggested it could not answer the allegation. The amendment to include indirect sex discrimination was therefore allowed, but the tribunal made no decision on whether that claim was ultimately in time; that issue was left for the full hearing.