Miss D Pron v Represented by: Mr S Smith, Solicitor Menzies Distribution Ltd — 2021

This was a preliminary hearing before Employment Judge A Kemp on competing applications about amendment and strike out. The claimants, who are Polish nationals with limited English, had presented a claim form on 2 November 2020 after early conciliation on 22 October 2020. After case management directions and an unless order, their Further and Better Particulars of 8 April 2021 were treated as an application to amend. Those particulars advanced three claims: claim one on race, and claims two and three on race and pregnancy.

Applying the Selkent approach and the overriding objective, the judge allowed the amendment for claim one on race, and allowed claims two and three to be amended on race as well, but reserved the question whether those race claims were in the tribunal's jurisdiction for later determination. The judge treated the race allegations as having at least a limited causative link with the original claim form, which had already referred to less favourable treatment of Polish workers by managers and supervisors. The judgment also discussed the alternative Galilee line of authority on reserving jurisdiction where time-bar issues are disputed.

The amendment was refused insofar as claims two and three relied on pregnancy. The judge found that pregnancy was a new protected characteristic with no causative link to the original claim, that there was no basis to treat those allegations as conduct extending over a period, and that the delay was substantial. In relation to pregnancy, the judge concluded that it would not be just and equitable to allow the claims to proceed. A further closed preliminary hearing was to be listed for case management.