Ms L Wheatley v Rradar Limited — 2019

At the preliminary hearing in Glasgow on 19 September 2019, Employment Judge L Wiseman considered Ms Wheatley's application to amend her ET1. The application sought to add four Equality Act claims: harassment based on sex, victimisation based on race, harassment based on age, and victimisation based on age. The original claim form had been presented on 26 May 2019 and, as pleaded, referred to unfair dismissal and to protected disclosure complaints under the Employment Rights Act 1996, not to the Equality Act.

The tribunal accepted that the statement of claim referred to matters raised in the claimant's January 2019 grievance, including allegations of harassment and bullying, breaches of company policy, petty cash concerns, performance issues and racist behaviour towards another employee. It did not accept that this amounted to fair notice of Equality Act claims. The tribunal also rejected the claimant's submission that the failure to tick the Equality Act box on the online form was only a minor technical issue, noting that she was a legally qualified solicitor advocate with court experience and should have made the intended claims clear.

Applying rule 29 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 and the Selkent guidance on amendment, the tribunal held that the proposed claims were new causes of action, potentially out of time, and that the balance of prejudice favoured the respondent. The amendment application was therefore refused. The judgment records that the claim as originally pleaded, namely automatically unfair dismissal for protected disclosure under s.103A ERA and detriment for protected disclosure under s.47B ERA, would proceed to be listed for hearing.