Claimant v The Scottish Ministers — 2019

The judgment concerned the claimant's application to amend her unfair dismissal claim to include a disability discrimination claim. The claimant relied on mental health impairments described as Adjustment Disorder and Recurrent Depressive Disorder and submitted that her illness, lack of legal advice, and later advice from Strathclyde University Law Clinic explained why the amendment had not been made earlier.

The respondent objected on the basis that the amendment was a new cause of action, was out of time, had been made after significant delay, and would cause hardship through further investigation, potential additional witnesses, cost, and further delay. The respondent also submitted that the claimant could still pursue her existing unfair dismissal claim and had separate Court of Session proceedings.

The Tribunal refused the amendment application. It found that the proposed disability discrimination claim was a new cause of action rather than a re-labelling of the unfair dismissal claim, that the claimant had knowledge of the material facts when her employment ended and when she lodged her unfair dismissal claim, and that the delay of more than four years weighed considerably against her. Balancing the injustice and hardship to both parties, the Tribunal concluded that the respondent would suffer greater injustice and hardship if the amendment were allowed than the claimant would suffer if it were refused, noting that the unfair dismissal claim could still proceed.