Miss S Craig v Symbiosis Pharmaceutical Services Limited — 2021

This was a remote preliminary hearing on 26 February 2021 before Employment Judge A Kemp about the claimant’s emailed application to amend her claim. The claimant said she had been dismissed after being asked to work on a Sunday following six consecutive days of work, while the respondent denied there had been any Sunday working requirement and said the proposed new claims were not properly pleaded. The tribunal treated the application under the Selkent framework and the overriding objective.

The tribunal allowed the amendment in respect of the section 101A Employment Rights Act 1996 point, saying it was essentially a new legal label on facts already pleaded and there was a strong causative link between the further particulars and the original claim. It refused the proposed section 104 Employment Rights Act 1996 claim because the claimant could not identify when she had asserted the relevant statutory right, and because it added little if anything to the section 101A claim.

The tribunal also refused the proposed section 27 Equality Act 2010 victimisation claim. It held that this was an entirely new claim with no real causative link to the original pleading, that it was out of time by more than two months, and that the claimant had not identified the protected act on which the claim depended. The tribunal noted that the claimant already had claims under section 101A Employment Rights Act 1996 and section 13 Equality Act 2010 which covered much of the subject matter she wished to raise.

Separately, the tribunal struck out the section 94 Employment Rights Act 1996 unfair dismissal claim and the breach of contract claim under Rule 37. The claimant accepted that she did not have the service needed for ordinary unfair dismissal and that she had received payment in lieu of notice, so no breach of contract claim arose. No monetary remedy was awarded at this hearing.