Ms N Hughes v – Solicitor Greater Glasgow Health Board — 2020

This was a preliminary hearing on the claimant's application to amend her claim, not a final liability hearing. Ms N Hughes sought to add an indirect discrimination claim under section 19 Equality Act 2010, based on reference requests the respondent had sent to Murray and Specsavers between 26 November 2019 and 20 December 2019 asking for the number of days and occasions of absence in the previous two years. The claimant said the wording of those requests, and the failure to pass the absence dates back to her, amounted to a PCP that put people with her disability at a substantial disadvantage.

The respondent opposed the amendment. It argued that the proposed indirect discrimination claim was a substantial new cause of action rather than a mere relabelling, that it was out of time, that the claimant had known the relevant facts before presenting the ET1 on 14 May 2020, and that the proposed claim had poor prospects. The tribunal treated the application under the Selkent approach and also referred to Ladbrokes Racing Ltd v Traynor when considering the balance of hardship, timing, delay and potential additional cost.

The tribunal found that the proposed indirect discrimination allegation was a new claim, but one that was substantially related to the disability discrimination claims already pleaded. It accepted that the amendment depended on information in the respondent's ET3, received on 1 July 2020, because the claimant had not previously known the precise wording of the reference request on which she now relied as the PCP. The tribunal accepted that the application was made promptly thereafter, that the cogency of the evidence was unlikely to be affected, that no substantive hearing had yet been fixed, and that the respondent would have time to prepare its defence.

Having considered the merits only to the limited extent necessary for an amendment application, the tribunal held that the proposed claim could not be said to have no prospects of success. It therefore concluded that, although the amendment was out of time on its face, it was just and equitable to extend time and that the balance of hardship favoured the claimant. The judgment accordingly allowed the amendment application; it did not make any award of compensation or other remedy.