Mr M Perrone v Procomm Site Services Ltd — 2019

Mr M Perrone brought sexual-orientation discrimination claims arising out of his employment as a Yard Operative from 20 February 2017 to 2 October 2018. At this preliminary hearing the tribunal refused his 12 September 2019 application to amend the case to add a further claim based on his resignation on 2 October 2018. Applying Selkent Bus Company Limited v Moore, the tribunal held that the proposed amendment was not a mere relabelling exercise, because the original particulars did not plead dismissal-related facts, the application was made very late, and no proper reason was given for the delay. The tribunal noted that a constructive dismissal cannot be an act of harassment in itself, although a dismissal can be a prohibited act under section 39(2)(c) of the Equality Act 2010.

The tribunal allowed the original direct discrimination and harassment claims on sexual-orientation grounds to be presented late, finding it just and equitable to extend time under section 123(1)(b) of the Equality Act 2010. It accepted that the claimant had mental health problems, that he had tried to resolve matters by grievance, and that the approximate two-month delay before ACAS contact did not materially affect the quality of the evidence. The tribunal also considered there was at least an arguable case that the earlier allegations from April 2017 to January 2018 could amount to conduct extending over a period within section 123(3) of the Equality Act 2010.

The respondent's application to strike out the victimisation claim, or alternatively to require a deposit, was refused. The tribunal found that the grievance outcome and the investigation of the grievance were at least arguable as a detriment in the context of the claimant's complaint of homophobic abuse, and it noted that Mr Upton had made repeated contact with the claimant, but only a small number of short interviews were conducted. The case was allowed to proceed to a further case management hearing and then to final hearing; no compensation was assessed at this stage.