E.T. Z (WR) EMPLOYMENT TRIBUNALS (SCOTLAND) Case No: 4104791/2018 Held in Glasgow on March 2019 Employment Judge: W A Meiklejohn Mr Guangchao Xu v Represented by: Ms L Bain - Solicitor Culture and Sport Glasgow — 2019

At the open preliminary hearing on 4 March 2019, Employment Judge W A Meiklejohn considered the claimant’s application to amend his ET1 and the respondent’s limitation objection. The proposed amendment added allegations of direct race discrimination concerning grievance outcomes on 22 December 2016, 25 May 2017 and 13 December 2017, alongside the existing allegations about unsuccessful job applications in 2013, 2014, 2015 and 2016. The tribunal recorded that the claimant was alleging less favourable treatment in relation to those applications because he was Chinese.

Applying the guidance in Selkent and the approach in Cocking v Sandhurst (Stationers) Ltd, the tribunal noted that the factual background to the grievance allegations was already set out in the paper apart to the ET1, so the respondent had notice of that background, even though no discrimination claim had originally been formulated in relation to the grievance process. The tribunal also considered the timing of the application, the likely availability of documentation and witnesses, and the relative prejudice to each party.

The tribunal held that the proposed amendment was not merely a relabelling, but also not wholly new because it concerned the same section 13 Equality Act 2010 type of claim and drew on facts already mentioned in the ET1. It accepted that the amendment would permit pursuit of a head of claim that would otherwise be out of time, but concluded that the balance of injustice and hardship favoured allowing it because refusal would prevent the claimant from pursuing any part of the claim. The amendment was therefore allowed and the claim was held not to be out of time.

On limitation, the tribunal said that, taking the claimant’s case at its highest, there was some prospect that the alleged treatment in relation to the job applications and the grievance handling could amount to conduct extending over a period for the purposes of section 123(3)(a) of the Equality Act 2010. That issue was left for determination at the final hearing after evidence.