Mrs S Arshad v L Rowland & Co (Retail) Limited 8 October 2021 — 2021

This was a preliminary hearing before Employment Judge Sharkett on 8 October 2021 in Mrs S Arshad's case against L Rowland & Co (Retail) Limited. The ET1 had recorded claims of unlawful discrimination on the protected characteristic of race, and the reasons note that at an earlier preliminary hearing Employment Judge Ross had recorded that the Tribunal did not have jurisdiction to hear an ordinary unfair dismissal claim because the claimant had less than two years' continuous service.

The respondent applied to strike out the claim under rule 37 of the Employment Tribunal Rules of Procedure because of non-compliance with case management orders, including failure to provide further information and a schedule of loss. The claimant later confirmed that indirect discrimination was not being pursued. Employment Judge Sharkett refused strike out, holding that a fair trial remained possible, but reminded the parties that they were expected to comply with Tribunal orders and to apply to vary orders if difficulty arose.

The tribunal then considered the claimant's application to amend. Applying the principles in Selkent Bus Company Ltd v Moore, and taking account of the nature of the proposed amendment, time limits, timing and the balance of hardship, the tribunal allowed the amendment changing the ethnic origin pleaded from British Asian to Pakistan descent. It refused the application to amend to include a claim under s103A Employment Rights Act 1996. The reasons given were that the proposed automatic unfair dismissal allegation was not sufficiently particularised, had been raised only after the claims had been clarified at the earlier preliminary hearing, and would require the respondent to investigate events said to have occurred more than a year earlier.