Mrs D McColm v - Solicitor Beauty Outlet Ltd — 2020

This was a remote preliminary hearing before Employment Judge R King concerning the claimant's applications to amend her ET1. The claimant had originally presented claims on 26 May 2020 and again on 10 July 2020 under sections 18(2) and 26(1) of the Equality Act 2010, and later sought on 21 August 2020 to add an unfair constructive dismissal claim and on 10 September 2020 to add five further factual allegations to the discrimination case. The respondent opposed the amendments, argued that the new matters were time-barred, and sought strike-out in relation to the additional allegations.

Applying Selkent and the related amendment authorities, the tribunal held that the constructive dismissal point was a relabelling of facts already pleaded rather than a new factual case. It also held that the five additional allegations formed part of the same continuing course of conduct already pleaded, namely treatment said to be because of pregnancy or pregnancy-related illness and harassment because of sex. The tribunal accepted that the applications were out of time, and noted that the claimant's ignorance of constructive dismissal rights was not a reasonable explanation for the delay, but it found that the constructive dismissal amendment remained sufficiently linked to the pleaded case and that the discrimination amendments should be allowed on a just and equitable basis.

In balancing hardship, the tribunal accepted that the claimant had initially been unrepresented, that obtaining advice had been affected by the COVID-19 pandemic, and that her solicitors had acted reasonably promptly once instructed. It found there was no fixed final hearing at that stage, no shown loss of evidence, and no material prejudice to the respondent because the new allegations involved the same group of witnesses and did not significantly widen the factual inquiry. The claimant's amendments were therefore allowed. The judgment did not decide the merits of the underlying constructive dismissal, pregnancy/maternity discrimination or harassment claims, and no remedy was awarded.