In person For the v Mr D Bansal, Solicitor — 2019

The claimant presented his ET1 on 3 January 2019 and ticked race discrimination only. He answered "no" to the question asking whether he had a disability, although the claim form referred to mental health concerns. After Employment Judge Henry directed further particulars on the race allegation, the claimant's further and better particulars dated 31 May 2019 sought to add a disability discrimination case based on bipolar disorder or manic depression, including allegations that the respondent failed to investigate whether disability had played a part in the events and dismissed him without reference to it.

Employment Judge Alliott held that the proposed disability case was a completely new cause of action. Although the pleading referred to sections 13 and 19 of the Equality Act, the judge considered it was more properly an attempted section 15 claim, because it appeared to allege something arising in consequence of disability and unfavourable treatment said to follow from that. The judge found that the new claim would raise significantly different factual and legal issues, including whether the claimant was disabled, whether the respondent knew or ought to have known of any disability, and whether medical evidence would be needed about the effects of bipolar disorder or manic depression.

The judge also found that the proposed amendment was out of time and that it would not be just and equitable to extend time. The claimant had been aware of his mental health history, had referred to it in the original claim form, and was assisted by a caseworker at the West London Equality Centre, so he could have formulated the disability claim from the outset if he considered it linked to the termination of his engagement. The application to amend was also made late after the further and better particulars had been filed and only after the judge's comments at the earlier preliminary hearing.

On the balance of hardship, the judge accepted that both sides could point to prejudice, but found genuine prejudice to the respondent because it would need to investigate disclosure of mental health information, review medical records, consider an impact statement, and potentially obtain its own medical evidence. The judge also noted that the case was already listed for a three-day final hearing and that a new claim could create further delay and cost. For those reasons, the amendment was refused and the disability discrimination claim did not proceed.