Mr Daniel Linney v Represented by:15 Mr Thornber, Consultant Stuart Niven & Son — 2020

At a telephone preliminary hearing on 29 October 2020, Employment Judge I McFatridge accepted the claimant’s application to amend the ET1 lodged on 6 October 2020 to add a claim of indirect age discrimination. The respondent opposed the amendment. The tribunal applied the factors in Selkent v Moore and considered the timing of the application, the extent of any new facts, and the balance of prejudice between the parties. It accepted that the amendment introduced a new cause of action, but found that much of the factual material overlapped with the existing breach of contract case and that the delay in lodging the amendment was not significant.

The proposed age discrimination allegation concerned the respondent’s decision to restrict the redundancy pool to apprentices rather than place fully qualified employees at risk of redundancy. The tribunal noted that the claimant was a 24-year-old apprentice roofer and accepted that it would not be unreasonable to assume he did not know of the possibility of an age discrimination claim until after obtaining legal advice on 14 September 2020. In addressing prejudice, the tribunal referred to Harvey v Port of Tilbury London Limited and accepted that the respondent would face additional exposure if a discrimination claim were allowed, including the possibility of compensation for injury to feelings, but concluded that the claimant would suffer the greater prejudice if amendment were refused. The judgment also records that the unfair dismissal claim was dismissed following withdrawal, and no monetary award is recorded.