In Person For the v Respondent — 2020

At a preliminary hearing on 2 December 2020, Employment Judge Balogun considered the respondent's strike-out application following the claim form presented on 6 September 2019 and the further particulars served on 20 April 2020. The respondent did not seek strike-out of the unfair dismissal claim, and the tribunal noted that an issue remained about the claimant's employment status for the final hearing.

The age discrimination complaint was allowed to proceed. The tribunal accepted that there was a disputed factual issue about whether the claimant had done promotion work for the respondent for the previous nine years and whether the cancellation of promotion work in June/July 2019 was explained by age. Because that dispute could not be resolved at the preliminary stage, the claim was not struck out. The tribunal also said that, if a formal amendment was needed, Selkent v Moore favoured allowing the clarified age complaint.

The race discrimination claim was struck out. The tribunal held that the summer 2018 allegation was significantly out of time and that the case, as put, amounted only to a difference in treatment and a difference in race. Applying Madarassy v Nomura International PLC, it concluded that this was not enough to establish a prima facie case of discrimination.

The tribunal granted leave to amend to add victimisation, finding that the claimant's allegations about complaints made at her disciplinary hearing and appeal on 30 July 2019 were at least arguable and that the respondent would not be unduly prejudiced. By contrast, it refused permission to add disability discrimination because no proper particulars had been provided. It also refused leave to add the proposed working time complaint about toilet breaks, saying it was not a recognisable working time regulations claim.

The tribunal refused to add a detriment complaint based on raising health and safety issues. It said the emails relied on were unlikely to amount to health and safety complaints within s.100(1) ERA 1996 and noted the claimant's own evidence that she did not believe this was the main reason for dismissal. Broader complaints of stalking, being followed, photographed or monitored at work, and alleged breaches of the Protection from Harassment Act 1997, GDPR, Article 8 ECHR, the Health and Safety at Work Act 1974 and the Management of Health and Safety at Work Regulations 1999, were held to be outside the tribunal's jurisdiction. No monetary award was made in this judgment.