EMPLOYMENT TRIBUNALS (SCOTLAND) Case No: 4107694/2021 Preliminary Hearing by Cloud Video Platform (CVP) on September 2021 Employment Judge: M A Macleod Markie Obukowho Dales v Represented by Mr A McMillan Barrister Boots Management Services Ltd — 2021

The claimant applied on 4 May 2021 to amend her claim to add Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000 complaints, including an automatically unfair constructive dismissal complaint and a detriment complaint. The respondent opposed the amendment on time bar and prejudice grounds. The claimant did not attend, but her representative made submissions on her behalf at the preliminary hearing on 3 September 2021.

The tribunal treated the application as a type (ii) amendment under Harvey and applied the Selkent balancing exercise, with the rule 2 overriding objective and Office of National Statistics v Ali also cited. It held that the amendment added a new head of claim based on the same factual material already pleaded, without new facts, and noted that little turned on the fact the application was lodged on 4 May 2021 after the 3 May 2021 timetable set at the earlier preliminary hearing.

On timeliness, the tribunal held that the proposed constructive unfair dismissal claim under the 2000 Regulations was not out of time because it ran from the date of termination of employment on 10 February 2021. It could not make findings on whether the detriment complaint was time-barred, because the claimant gave no evidence or explanation for not including it earlier. Weighing prejudice, the tribunal found the respondent would not suffer material prejudice because the factual allegations were already pleaded, while refusing amendment would prevent the claimant pursuing those new heads of claim. The application to amend was therefore allowed, with the time bar issue reserved to the merits hearing.