Ms A Miller v Mochridhe Limited — 2023

The claimant brought a complaint of harassment under s26 of the Equality Act 2010. Her ET1 referred to inappropriate behaviour and comments by a service user, and to an alleged comment by her manager that the service user could have sex with female staff if they consented. Before the hearing, the claimant clarified that she no longer wished to advance a claim based on third-party harassment and only pursued the alleged comment by her manager.

The tribunal held that the claimant’s email of 9 November 2023 effectively withdrew the allegations of third-party harassment, and it dismissed that part of the s26 claim under Rule 52. It made clear that this dismissal did not prevent evidence about the service user’s conduct being heard at the final hearing, because that background formed part of the context for the remaining allegation.

The respondent’s application to strike out the remaining claim under Rule 37 was refused. The tribunal did not accept that the live allegation was still simply a claim of third-party harassment. It said the fact that the manager’s comment may have prompted the service user to continue his conduct did not prevent the manager’s own comment from amounting to unlawful harassment, and any issue about how far injury flowed from each set of alleged acts was for the tribunal to assess after hearing evidence.

The claimant’s application to amend was granted. The tribunal found the amendment was not strictly necessary because the remaining claim was already pleaded in the ET1, and the proposed amendment merely clarified that the claimant was only insisting on that allegation. It held that the amendment did not introduce a new cause of action or new facts, raised no time-bar issue, and caused no prejudice to the respondent, which had already pleaded to the remaining allegation.