Mrs O Swieca v UPE Engineering Limited — 2019

At the preliminary hearing on 29 May 2019 before Employment Judge Smail sitting alone, Mrs O Swieca applied to amend her existing claim against UPE Engineering Limited to add discrimination allegations. The case had previously been consolidated with claims against Unique Employment Services Limited, but the tribunal de-consolidated the matters so that the claim against UPE Engineering Limited would proceed separately.

The proposed amendment would have added allegations said to arise from the claimant's pregnancy and maternity, including a failure to carry out a maternity-related risk assessment, a requirement to lift boxes of up to 25kg, sexual harassment by Dean Lloyd, and an assertion that the engagement ended because she was pregnant. The judge found these matters were either already known to the claimant by 20 July 2017 or were not adequately particularised, and that the sexual harassment allegations were only made in general terms.

The tribunal also rejected reliance on information said to have been learned on 20 February 2018 about a male worker called Simon. Mrs Ephgrave's evidence was accepted that Simon Byass started on 11 September 2017, was directly employed by UPE, was not engaged through an agency, and was not a direct replacement. The judge held that the information relied on was unattributable hearsay and did not provide a sufficiently cogent basis for a prima facie inference of pregnancy discrimination.

Applying the Selkent principles and the just and equitable test for extending time, the tribunal found there was no good explanation for the nine-month delay in advancing the new allegations, there was further delay between February and April 2018, and the respondent would face evidential prejudice because one of its key managers no longer worked for it. The application to amend was refused.