Mr H Barker v European Metal Recycling Limited — 2022

At the open preliminary hearing on 21 February 2022 before Employment Judge Britton, sitting alone, the tribunal dealt with the claimant's disability-related claims first. The claimant withdrew the disability harassment issue that had been framed under s.26 EqA, and the judge recorded that it was dismissed upon withdrawal. The tribunal also recorded that the respondent conceded the claimant was disabled at the material time by reason of anxiety and depression, but the separate reasonable-adjustments and disability discrimination complaint was also withdrawn, so no disability claim remained.

The judge granted the claimant's application to amend the ET1 to add unfair dismissal. Applying Selkent Bus Company Ltd v Moore, together with Ali v The Office of National Statistics and TGWU v Safeway Stores Ltd, the tribunal accepted the explanation for the omission from the claim form, found that the factual narrative already pointed to unfair dismissal, and held that the balance of prejudice favoured allowing the amendment. The claim was permitted to proceed, and directions were made for an updated schedule of loss and list of issues.

The remaining age-related complaints were not finally determined. The judge recorded an allegation of harassment on the grounds of age under s.26 EqA and a separate direct age discrimination claim under s.13 EqA, both arising from the events of 26 September 2019 and the suspension and dismissal that followed. Applying Hendricks v Commissioner of Police for the Metropolis, the tribunal held that the age-related claims were prima facie not out of time because they were said to form part of a continuing act, and left the merits and time-limit issues for the main hearing.