M Robison Mr R Miller v Scottish Hydro Electric Power Distribution plc — 2017

At this preliminary hearing the tribunal considered the claimant's application to amend his ET1 under the Selkent approach and the balance of hardship. It recorded that the claimant no longer pursued disability discrimination or ordinary unfair dismissal, and those claims were withdrawn and dismissed. It also recorded that indirect sexual orientation discrimination and victimisation were not being pursued. No monetary award was made.

The tribunal refused amendments to add protected disclosure claims under s47B and s103A ERA 1996. It held those were new causes of action not fairly pleaded in the original ET1, that the amendment was out of time by reference to the 29 August 2016 dismissal date and the ACAS early conciliation period, and that it was reasonably practicable to present them in time. The blacklisting amendments under the Blacklists Regulations 2010 and s104F ERA 1996 were also refused because the written case did not plead a prohibited list, trade union activity, or the necessary causal link.

By contrast, the tribunal treated the direct sexual orientation discrimination and harassment allegations as further specification of the existing ET1 case, which already referred to a perception that the claimant was homosexual, rumours or innuendo, and conduct said to discredit and isolate him. Those amendments were allowed to proceed, as was the complaint about the right to be accompanied at the 29 August 2016 HR meeting and appeal. The tribunal did not make any merits finding on those remaining claims and invited the respondent to consider whether to renew strike-out or deposit applications.