Mr D McGhee v Represented by Mr C Howie Solicitor Aberdeen City Council — 2021

At a preliminary hearing on 25 February 2021 before Employment Judge A Kemp sitting alone, the tribunal considered the claimant's application to amend an existing constructive unfair dismissal claim so as to add disability discrimination complaints under sections 15 and 21 of the Equality Act 2010. The background recorded that the claimant had signed a Removal with Consent Order on 18 January 2019, which meant the respondent could not employ him as a teacher, and that he resigned in February 2019 and later presented an ET1 limited to constructive dismissal.

Applying the amendment authorities, including Selkent and the later cases cited in the reasons, the tribunal held that the proposed amendment was in substance a new claim with no real causative link to the pleaded constructive dismissal case. It identified several new areas of factual inquiry, including the respondent's knowledge of disability, whether any disadvantage arose from disability, whether any PCP was applied, whether objective justification was available, and what reasonable adjustments might have been required.

The tribunal also held that the amendment was materially out of time, being more than 19 months outside the primary limitation period on the claimant's own case, and that it was not just and equitable to extend time. It attached weight to the passage of time, the retirement of Mr Innes, the missing Dr Clark letter, the additional cost and delay, and the prejudice to the respondent. It noted that the claimant was represented when the ET1 was presented and had referred to mental health matters, but had not pleaded disability discrimination.

The application to amend was refused. The judgment did not determine the merits of the original constructive unfair dismissal claim, which remained a live case management issue, and no monetary award was made.