Ms Jeanette Findlay v University of Glasgow — 2021

Ms Findlay presented her original ET1 in August 2020 alleging indirect sex discrimination arising from a promotion decision, and the claim was later amended in October 2020 to add direct sex discrimination. At the preliminary hearing she sought to amend again to add further particulars concerning mentoring and career development, care commitments, and a new victimisation claim. The Tribunal applied the Selkent approach and considered the overriding objective when deciding whether to allow the amendments.

For the mentoring and career development and care commitments points, the Tribunal accepted that those allegations had some foundation in the existing pleadings and supporting material, although the specific PCPs were not currently pleaded in terms. It treated both matters as additional indirect sex discrimination heads of claim. The Tribunal considered that, if those matters were part of an ongoing state of affairs, time bar would not arise; if not, they would be out of time as they related back to the failure to promote in April 2020. It nevertheless allowed those parts of the amendment, noting that the Respondent had been on notice to some extent and that no final hearing date had yet been fixed.

The victimisation amendment was treated differently. The Tribunal found that this was an entirely new claim and did not accept the Claimant's explanation that the relevant facts only came to light in May 2021. It found that the Report by Professor Mason had been shared with her in October 2020 and that, at the latest, any victimisation claim should have been presented within three months of that date. Applying the time-limit authorities and the just and equitable discretion, including the factors in British Coal v Keeble and the knowledge considerations in Mensah, the Tribunal refused to extend time.

In balancing prejudice, the Tribunal held that allowing the victimisation claim would have caused substantial prejudice to the Respondent because of the passage of time, the volume of material, the further preparation and witnesses required, and the delay and expense that would follow. By contrast, the prejudice to the Claimant from refusing that part of the amendment was outweighed. The result was that the amendment was allowed for the two indirect sex discrimination additions but refused for victimisation, and the case was to be case managed further.