Ms M McAllister and Ms J Ward Ms D Gemmell v Represented by: Mr D Jaap - Solicitor Police Scotland — 2024

This judgment was confined to the claimant's application, made partway through the final hearing, to amend the ET1 to add a new victimisation claim under s27 Equality Act 2010. The tribunal said the proposed amendment was a wholly new cause of action arising from new facts not pleaded in the original ET1. The application concerned the respondent's alleged withdrawal of the claimant's status as ill health retained and the withdrawal of an admission in the ET3 that she had that status.

Applying Selkent Bus Co Ltd v Moore, the tribunal considered the nature of the amendment, time limits, and the timing and manner of the application. It found that the alleged withdrawal of ill health retained status had been raised in January 2023 and was known to the claimant before the ET1 was presented in May 2023, so it was not correct to say that time limit issues did not arise. The application was made after the hearing had started and after the claimant had given evidence, and there was no explanation for not raising it earlier.

The tribunal said allowing the amendment would likely require the hearing to be adjourned and relisted, with further directions, identification of witnesses, and additional evidence. It also noted possible issues about time bar and judicial proceedings immunity in relation to the withdrawal of the admission in the ET3. The balance of prejudice and hardship fell in favour of the respondent, so the claimant's application to amend was refused. The judgment does not decide the merits of the existing discrimination claims.