Ms K Forshaw v Virgin Atlantic Airways Limited PRELIMINARY HEARING — 2017

At a closed preliminary hearing on 3 April 2018, Employment Judge Chudleigh considered the claimant's applications to amend her pleaded case against Virgin Atlantic Airways Limited. The tribunal applied the approach in Selkent Bus Co Ltd v Moore and carried out a balancing exercise taking account of the nature of each proposed amendment, the limitation position, the timing of the application, and prejudice to the parties.

Permission was granted to add complaints that the dismissal was direct discrimination contrary to section 13 of the Equality Act 2010 and that it was a breach of contract because the claimant was dismissed summarily. The tribunal said those additions were pure relabelling of the existing unfair dismissal complaint. It noted that the respondent could already address why it had dismissed the claimant and why it regarded the dismissal as gross misconduct, so there was no relevant prejudice. The judge also said that, even if time had needed to be extended, it would have been just and equitable to do so on these two amendments.

Permission was refused for the proposed complaints under sections 19, 20, 21 and 26 of the Equality Act 2010. The tribunal held that the indirect discrimination and reasonable adjustments complaints concerned an alleged practice of giving employees who were absent from work warnings and cautions, which was a new ambit of enquiry and different from the original claim about the dismissal itself. The harassment complaint was also treated as a new cause of action with new factual allegations. The tribunal found those proposed amendments were out of time, that there was no explanation for the omission from the original claim, and that allowing them would require additional work that would prejudice the respondent.