Ms J Paterson v Represented by:10 Mr R Mullan - Lay Representative Caledonian Marts Limited — 2024

At the open preliminary hearing on 27 March 2024, Employment Judge Campbell considered the claimant's application to amend her case. The claim had already included pregnancy and maternity discrimination under section 18 of the Equality Act 2010, and the claimant had also ticked sex discrimination. At an earlier case management hearing on 19 January 2024, the tribunal had noted that some allegations appeared capable of supporting constructive unfair dismissal, but no such claim had then been made, and that complaints falling after the protected period would have to proceed, if at all, as direct sex discrimination under section 13. The claimant's representative's letter of 12 February 2024 then sought to add constructive dismissal and provided further particulars of 20 complaints.

The tribunal allowed the amendment to add the two earliest pregnancy and maternity complaints, said to have occurred on 28 June 2022 and 5 July 2022. It treated this as a relatively minor amendment to an existing timely section 18 case, noted that late discrimination complaints can proceed if it is just and equitable to do so, and observed that if those allegations were proved together with later complaints they might form a continuous course of conduct. The tribunal also noted that the amendment would add little additional hearing time or evidence.

The tribunal refused the application to amend the claim to include constructive unfair dismissal. It held that the proposed claim would be almost five months out of time, that the post-employment grievance process did not itself explain the delay, and that the ET1 had contained a specific unfair dismissal box which should have prompted the point from the outset. The tribunal also recorded that the claimant's representative had been considering constructive dismissal by December 2023 and could have applied earlier. The claim was therefore left to proceed on the section 13 and section 18 complaints alone. In the case management note, the tribunal recorded that complaints 1 to 15, 19 and 20 in the further particulars fell within the protected period and were section 18 complaints, while complaints 16 to 18 in July 2023 were direct sex discrimination complaints requiring a hypothetical male comparator.