Mr Derek Lithgow v Border Air Training Limited — 2017

This was a preliminary hearing in Glasgow before Employment Judge Shona MacLean on 31 July 2017. Mr Derek Lithgow appeared in person. Border Air Training Limited and Mr Howard Sandham were represented. No evidence was heard. The only issue was the claimant's application, dated 8 June 2017, to amend his claim form to incorporate discrimination against the respondents.

The tribunal recorded that the original ET1 had ticked unfair dismissal, notice pay, holiday pay, arrears of pay, and National Minimum Wage issues, and had also referred to possible redundancy payment. In later emails, the claimant said he believed the respondents' employment practices were discriminatory and stated that the main reason was age. The tribunal held that the original claim form had not foreshadowed a discrimination claim, and that the proposed amendment appeared to introduce a new age discrimination complaint without facts from which the tribunal could conclude that there had been direct or indirect age discrimination.

The tribunal found that the proposed age discrimination complaint would be out of time, because any alleged discriminatory act had to have occurred before the arrangement ended, which was identified as no earlier than 7 August 2016 and no later than 7 December 2016. It also considered the timing and manner of the application, the need for further particulars, additional expense and delay, and the fact that the claimant had access to legal advice before presenting the original claim. The tribunal concluded that the delay and the new factual and legal issues weighed strongly against allowing the amendment, and it refused the application. The refusal did not prevent the claimant from pursuing the issues raised in the original claim form.