Kerry Stirling v Ms C Cochrane Solicitor The Mind’s Well — 2022

At the open preliminary hearing on 8 June 2022, Employment Judge Russell Bradley considered the claimant's application to amend her claim by adding Maria Therese Naranjo as a second respondent under rule 34 of the Employment Tribunal Rules of Procedure 2013. The underlying case included claims under sections 13, 15, 20 and 26 of the Equality Act 2010 relying on disability, together with a breach of contract claim, but this hearing did not decide those claims on their merits. No evidence was heard from either party; the tribunal proceeded on submissions and the documents lodged for the amendment application.

The claimant's solicitor submitted that adding Ms Naranjo would avoid hardship because The Mind's Well had ceased trading and any award against the company might be unrecoverable. The tribunal accepted that early conciliation was not a bar to an amendment of this kind, but applied the Selkent guidance and the approach in Argyll & Clyde Health Board v Mr A Foulds & Others to the amendment question. It held that the claimant had not shown an evidential basis for the pleaded reliance on section 110 of the Equality Act 2010 because there was no evidence that Ms Naranjo was an employee of the respondent; the tribunal accepted she was a director, but the claimant accepted that directorship alone did not establish employment.

The tribunal also found that the application was late. It held that the claimant was legally represented by March 2021 and should then have known that Ms Naranjo was a relevant respondent if the case was to be pursued against her, so waiting until January 2022, after concern about the respondent's solvency, did not justify the amendment. The tribunal said the prejudice to Ms Naranjo was that she could face personal liability in a claim she had otherwise expected to be time-barred. The application to add her as a second respondent was therefore refused, and the case was left to proceed against the existing respondent.