Miss S Mardell v Nacro — 2021

At the open preliminary hearing on 24 August 2021, Employment Judge Feeney considered the claimant's application to amend her disability discrimination and protected disclosure complaints. The original claim, presented on 9 October 2019, concerned asthma and the requirement to clean voids at the respondent's hostel. The claimant later sought to rely on PTSD and then on anxiety, low mood and depression, and also raised additional harassment, victimisation and protected disclosure matters.

Applying the Selkent amendment principles, the tribunal weighed the nature of each proposed amendment, the time elapsed and the prejudice to each side. It held that the attempt to add anxiety, low mood/depression and PTSD as disabilities was a substantial and late amendment that would significantly disrupt preparation and could require further medical evidence, so permission to amend was refused for those disabilities. The judge also refused the additional harassment and victimisation matters identified in the respondent's 11 February 2021 letter, apart from issues 64.9 and 64.11, which were treated as already sufficiently pleaded. The claimant's explanation that she had misunderstood earlier references to mental health conditions was not accepted.

The tribunal did allow the claimant to proceed with additional protected disclosure facts, but made clear that the respondent could seek further and better particulars within 14 days. The reasons note that the claimant said she was not pursuing a breach of contract claim. No merits findings or monetary award were made at this hearing; the decision was confined to amendment and case management, and the underlying disability discrimination claim based on asthma was left to proceed in its pleaded form.