Ms Kimberley Martin v Represented by: Mr S Smith - Solicitor Greens Retail Ltd — 2023

At the preliminary hearing in Glasgow on 14 August 2023, Employment Judge L Wiseman refused the respondent's strike-out application and refused the claimant's application to amend the claim. The ET1, presented on 30 October 2022, described bullying and intimidation over 14 to 16 August 2022, resignation after 14+ years' service, and the claimant's belief that she could not return to work. The tribunal held that those allegations supported a claim of unfair constructive dismissal, even though the claimant had not ticked the unfair dismissal box on the form.

Applying the Selkent approach to amendments, the tribunal considered the nature of each proposed amendment, the time limits, the timing and manner of the application, and the balance of prejudice. It held that the proposed constructive dismissal case was already sufficiently pleaded in the ET1 and therefore did not need amendment. The claim that will proceed to final hearing is unfair constructive dismissal.

The tribunal refused leave to add whistleblowing complaints under ss.47B and 103A ERA. It accepted that the claimant had referred to contacting HR, but held that the material before it did not show a protected disclosure in the public interest. The tribunal noted that the alleged disclosure related to the individual right to be accompanied and health and safety, that the relevant events on 14 and 15 August had already occurred before the call, and that the application to amend on 28 April 2023 was out of time with no evidence explaining why a late extension should be allowed.

The tribunal also refused leave to add a disability discrimination claim under s.19 Equality Act. It treated this as a new out-of-time claim and noted that the proposed case did not identify the provision, criterion or practice said to have been applied or how it placed the claimant at a particular disadvantage. No monetary award was made at this stage.