Mr G Asiedu v Reach Active Limited — 2023

At the open preliminary hearing on 22 March 2023, Employment Judge K Welch considered the claimant's application to amend his ET1 to add a whistleblowing detriment complaint and the respondent's application to strike out the race discrimination claim. The claimant's original ET1 of 19 September 2022 pleaded unfair dismissal and race discrimination only. The tribunal recorded that there was no reference in the original claim to any protected disclosure, and that the claimant had taken ACAS and other advice and knew about time limits.

The amendment application was refused. The tribunal found that the proposed whistleblowing allegation was a new cause of action rather than a re-labelling exercise, because the facts relied on did not appear in the original ET1. It held that the proposed detriment complaint was out of time by the date the amendment was sought, that the claimant had given little explanation for not including it earlier, and that the balance of prejudice and injustice favoured the respondent. The tribunal also said that, if it had been asked to decide time limitation on the proposed whistleblowing claim, it would not have accepted jurisdiction.

The tribunal did not strike out the race discrimination claim. It treated the claimant's case as a direct race discrimination allegation under section 13 EqA 2010, based on the allegation that Mr Daniels told him on 1 August 2022 that he needed to "find another job; this is coming from above". Applying the high threshold for strike out in discrimination cases, and noting that evidence would be needed before any burden of proof issue under section 136 EqA could be resolved, the tribunal held that the claim should proceed to a further case management hearing.

The unfair dismissal claim was dismissed upon withdrawal because the claimant accepted that he could not bring that claim while his employment continued. No monetary award was made at this hearing.