Mr W Hibbert v Fortitude Nicsa Global Ltd Heard: Via Cloud Video Platform in the Midlands (East) Region — 2022

This was a preliminary hearing before Employment Judge Ayre on 3 February 2022. The tribunal was asked to decide whether the claimant was disabled by reason of borderline personality disorder and dyslexia, and whether an application to amend the claim should be allowed. The judgment records that the underlying claim included unfair dismissal, disability discrimination, holiday pay and other payments, but the hearing itself was confined to the preliminary disability issues, amendment, and case management.

On borderline personality disorder, the tribunal found that the claimant had a mental impairment affecting him over many years, going back to 2011. It accepted evidence of intrusive thoughts, disrupted sleep, poor concentration, low motivation, difficulty going out, difficulty dressing and bathing himself at times, problems with eating in public, suicidal thoughts, agitation when confronted, and receipt of Personal Independence Payments. Applying section 6 of the Equality Act 2010, paragraph 5 of Schedule 1, and the statutory Guidance, the tribunal held that the effect on normal day-to-day activities was more than minor or trivial and was long term.

On dyslexia, the tribunal accepted that the claimant struggled to read and write, could not properly read newspapers, books or documents, often misunderstood written material, could not fill in forms or write letters, relied on others to read and explain paperwork, and had had the condition since childhood. It treated reading newspapers, writing letters and filling in forms as normal day-to-day activities and held that the impact was substantial and long term, so the claimant was also disabled by reason of dyslexia.

The amendment application was refused. The tribunal applied the Selkent factors and held that the proposed amendment was substantial and amounted in many respects to a new claim, with new allegations and new heads of claim going back to early 2019. It noted that the application was made more than seven months after the ET1 and four days after the deadline set by an earlier order, and found there was no good reason why the new allegations could not have been included originally. The tribunal held that allowing the amendment would significantly lengthen the final hearing and increase cost, while refusing it left the claimant's existing claims for disability discrimination arising out of dismissal and unfair dismissal in place.