Claimant v Bouygues E & S FM UK Limited — 2021

The claimants were security supervisors whose employment transferred to the respondent on 1 April 2016 under TUPE. Their ET1 described a demotion from supervisor to team leader after the transfer, but they did not tick the discrimination boxes on the claim form and the narrative did not mention race, colour, nationality, ethnic origin, or any other protected characteristic. The only discrimination-style wording on the form was a complaint by Mr Oloyede that he may have been treated badly because a junior colleague was retained in a senior role, which the tribunal said might possibly suggest age discrimination but did not suggest race discrimination.

The tribunal held that the claim form did not include a race discrimination complaint and that there was no victimisation complaint because no protected act had been alleged. It also held there was no unfair dismissal complaint because the claimants remained employed, and no unlawful deduction claim because the pay comparison relied on by the claimants was part of their complaint about the demotion rather than a claim for unpaid wages. The judge treated the April 2020 witness statements as applications to amend so as to add race discrimination.

Applying the amendment principles in Selkent and related authorities, and the time-limit provisions in section 123 of the Equality Act 2010 and section 140B on early conciliation, the tribunal refused permission to amend. The proposed race discrimination claim was a new claim, was first articulated long after the August 2018 supervisor appointment complained of, remained unclear, and was out of time by a substantial margin. The tribunal concluded it was not just and equitable to extend time and therefore dismissed the claims because they contained no complaint the tribunal had jurisdiction to hear.