A v Respondent — 2021

At the preliminary hearing on 13 and 14 May 2021, the respondent conceded that the claimant was a disabled person for Equality Act 2010 purposes by reason of PTSD, adjustment disorder, anxiety and depression. The tribunal then dealt with the ACAS point on claim 4104907/20 and the claimant's application to amend claim 4102763/20 to add unfair dismissal. It rejected the claimant's argument that only the Court of Session could decide whether the ACAS certificate was valid, holding that it was for the employment tribunal to decide whether the certificate gave it jurisdiction.

Applying the authorities on section 18A, including Revenue and Customs Commissioners v Serra Garau, the tribunal held that the second claim related to the same matter as the first claim. The second ACAS certificate was therefore not a valid certificate for section 18A purposes, and the tribunal did not have jurisdiction to consider claim 4104907/20. The tribunal noted that the 2020 amendment introducing rule 12(2ZA) came into force after the second claim had been lodged, so it did not assist the claimant.

The tribunal then applied Selkent Bus Co Ltd v Moore to the amendment application. Although the proposed unfair dismissal amendment was out of time because the dismissal was on 15 August 2020 and the amendment was made on 20 November 2020, the tribunal allowed the amendment after considering the balance of injustice. It noted that the respondent had been aware within about a month of dismissal that an unfair dismissal claim was being pursued, that the case involved unusual ACAS issues, and that refusing amendment would deprive the claimant of the opportunity to advance the claim. The tribunal separately directed the claimant to specify the proposed victimisation amendment, which was not determined at that hearing.