Mr Ijezie (Solicitor) For the v Mr Brotherton — 2022

This was a preliminary hearing on the claimant's application to amend her claims. The claimant had been employed as a Care Support Worker from 15 May 2019 until summary dismissal on 30 December 2019 for falling asleep on duty. The respondent accepted that the claimant was disabled at the material time, with ongoing knee pain and mobility difficulties. Employment Judge Palmer applied Selkent and the later authorities cited in the judgment, including the balance of injustice and hardship identified in Vaughan, when deciding which amendments should be allowed.

The tribunal disallowed the wholly new claims and factual cases first advanced in the April 2021 further and better particulars. That included indirect discrimination under section 19 Equality Act 2010 and automatic unfair dismissal under section 100 Employment Rights Act 1996. The judge also refused the new factual material added to expand the existing section 15 discrimination arising from disability claim and the sections 20 and 21 reasonable adjustments claim, on the basis that those allegations were raised very late and would prejudice the respondent.

By contrast, the tribunal allowed amendments that were treated as relabelling of facts already in the ET1. The section 13 direct discrimination claim and the section 26 harassment claim were allowed on the basis of the disciplinary process and dismissal. The section 27 victimisation claim was also allowed, but only to the extent it relied on the complaints and facts already raised in the ET1 and before Judge Bloom. The wrongful dismissal claim remained listed among the surviving claims. No merits decision or monetary award was made at this hearing, and the section 38 Employment Act 2002 point was noted only as a potential consequence if the claimant later succeeds.