E.T. Z (WR) EMPLOYMENT TRIBUNALS (SCOTLAND) Case No: 4107643/2021 (P)5 Held on November 2021 Employment Judge N M Hosie Ikemefuna G M Onyia v Maryfield West Care Home — 2021

The claimant presented his claim on 14 February 2021, originally advancing constructive unfair dismissal, unlawful deduction of wages, and less favourable treatment and victimisation under the Part-Time Workers (Prevention of Less Favourable Treatment) Regulations. At a preliminary hearing on 14 April 2021 he said he wished to pursue detriment and automatic unfair dismissal for making a protected disclosure, and he was directed to provide further and better particulars.

By email of 9 May 2021 the claimant withdrew the part-time worker complaint and particularised the constructive unfair dismissal and unlawful deduction claims, then advanced whistleblowing complaints based on alleged detriment and automatic unfair dismissal. The respondent objected, arguing that the protected disclosure case was a new cause of action and that the amendment was too broad. At a further preliminary hearing on 3 August 2021 the claimant said he would not pursue the detriment complaint, leaving constructive unfair dismissal, automatic unfair dismissal under s.103A ERA 1996, and unlawful deduction from wages.

Applying the guidance in Cocking, Selkent and later cases cited by the tribunal, Employment Judge Hosie held that the whistleblowing complaint was not a new cause of action but the addition of a further label and particulars for facts already pleaded, including the 7 August 2020 email raising health and safety concerns. The tribunal found the claim timeous, concluded that the cogency of the evidence would not be affected, and held that the prejudice to the claimant if amendment were refused outweighed the delay and expense to the respondent. The application to amend was therefore granted, and the respondent was directed to respond to the amended claim within 21 days.