Kevin Fraser v NSL Limited — 2021

At a preliminary hearing, the tribunal considered two issues: whether the claimant should be permitted to amend his ET1 to add Equality Act 2010 claims, and whether the tribunal had jurisdiction to hear his unfair dismissal complaint. The claimant's original ET1 presented on 2 January 2021 did not plead discrimination, although it referred to a dispute about mask exemption and his dismissal.

The tribunal refused the amendment. Applying the guidance in Selkent, it found the proposed disability discrimination claims would amount to a substantial new claim raising new factual and legal issues. It also found the proposed discrimination claims were out of time and did not accept the claimant's explanation that he had mistakenly failed to include them earlier, noting that by 27 October 2020 he had already asserted disability discrimination in his grievance. In balancing prejudice, the tribunal considered the proposed claims to have little prospect of success.

The tribunal then held that the claimant had been employed from 10 December 2018 to 9 November 2020 and therefore did not have the two years' continuous service required by section 108 of the Employment Rights Act 1996. As a result, the tribunal had no jurisdiction to determine the unfair dismissal claim, which was dismissed.