Mr J Black v Foreign and Commonwealth Office - FCO Services PRELIMINARY HEARING — 2017

This was a preliminary hearing on the claimant's application to amend, not a merits hearing. He had originally brought constructive unfair dismissal, unlawful deduction from wages and breach of contract claims, and a whistleblowing automatic unfair dismissal claim had been withdrawn. After a GP referral on 25 January 2017, an ASD assessment on 19 April 2017 and a further amendment application on 5 May 2017, he sought to add disability discrimination allegations based on the grievance material and interview minutes disclosed in the proceedings.

Applying Selkent, the tribunal held that the proposed disability claims were closely connected to the existing case and that there was substantial factual overlap with the grievance investigation. Although the new claims were out of time, it found it just and equitable to extend time because the claimant had not known, and could not reasonably have known, of his ASD when he issued the original claim, and he acted promptly once diagnosed. The tribunal also said that the claimant's ASD was likely to qualify as a disability, and that constructive knowledge of disability and substantial disadvantage might be capable of being established if the respondent had investigated further.

The amendment was allowed for discrimination arising from disability under section 15 and failure to make reasonable adjustments under section 20, but refused for indirect discrimination under section 19. The tribunal also refused some pleaded factual amendments, including a generalised lack-of-progression allegation back to 2012, vague gossip allegations, the pleaded written warning in 2014, and an unclear post-employment allegation that might have been victimisation. In dealing with reasonable adjustments, it said that guidance, training and support for managers were not themselves the adjustment and cited Tarbuck v Sainsbury's Supermarkets Ltd. No monetary remedy was determined at this hearing.