Dr T Burton v Chesterfield Royal Hospital NHS Foundation Trust — 2022

At an open preliminary hearing on 6 December 2022, Employment Judge Welch, sitting alone, considered Dr Burton’s application to amend his ET1. The respondent accepted that he was disabled by type 2 diabetes, but not by bipolar affective disorder. The claimant’s ET1 had been presented on 1 March 2022 after ACAS early conciliation from 19 December 2021 to 29 January 2022, and the judge noted that incidents before 20 September 2021 were potentially out of time.

Applying Chandok v Tirkey, Cocking, Selkent, the Presidential Guidance on General Case Management and later authorities including Galilee and Chaudry, the tribunal held that the proposed whistleblowing amendments were new causes of action rather than relabelling. Leave to add detriment under s47B ERA and automatic unfair dismissal under s103A ERA was refused. The tribunal also refused to permit new allegations 11 to 15, including direct disability discrimination allegation 11, discrimination arising from disability allegations 11 and 15, reasonable-adjustments allegation 12, and harassment allegations 13 to 15, because they were new, significantly out of time and would prejudice the respondent.

Leave was granted for the remaining disability-based amendments because they were already pleaded or sufficiently linked to the original ET1. These included direct disability discrimination allegations 1, 3, 4, 5, 6, 7, 9 and 10; discrimination arising from disability allegations 1 and 4; reasonable adjustments allegations 1, 2, 3, 5, 6 and 8; and harassment related to disability allegations 8 and 9. The tribunal left any time-limit points on the allowed amendments to the final hearing and refused strike out and a deposit order, holding that it could not say the allowed discrimination claims had little or no reasonable prospect of success without hearing evidence.