Case 4107706/2019 · Employment Tribunal

(sitting alone) Ms L Walsh v Inco Marketing Limited (in Liquidation) and 2 others — 2021

Case reference: 4107706/2019
Decision date: 17 February 2021
Jurisdiction: Scotland
Judge: Employment Judge M Sutherland

Indexed: 22 May 2026

Parties

4 named

Claimant

(sitting alone) Ms L Walsh

Respondents

Key findings

Tribunal's reasoning

At an open preliminary hearing on 27 and 28 January 2021, Employment Judge M Sutherland considered the claimant's application to amend two related claims after the first respondent had gone into liquidation. The first claim, presented in July 2019, raised direct disability discrimination, discrimination arising from disability, indirect disability discrimination, harassment related to disability and victimisation. The second claim, presented in December 2019, added constructive dismissal, breach of contract and further disability discrimination allegations against the first, second and third respondents. The tribunal held that the combined document simply repeated the earlier claim for the pre-existing matters, but that the later V1, V2 and V3 averments raised new allegations requiring amendment.

In deciding whether to permit those amendments, the tribunal applied the Selkent guidance on amendments, considered the extent to which the new pleading would involve substantially different factual and legal issues under Abercrombie & Others v Aga Rangemaster Ltd, and weighed limitation, delay, the timing and manner of the application, and the prospects of success. The judgment recorded that the third respondent did not oppose later allegations from 31 May 2019 onwards; the refusal concerned the earlier allegations that were sought to be added against her.

The tribunal refused permission to amend so far as the claimant sought to add allegations 1 to 9 and 11 of direct disability discrimination, allegations 1 to 3 and 5 of indirect disability discrimination, allegations 1, 3, 4, 5 and 7 of harassment related to disability, allegations 1, 2, 4 and 5 of victimisation, allegations 1 to 9 and 11 of discrimination arising from disability, and allegations 1 to 3 and 5 of failure to make reasonable adjustments against the third respondent. It found those allegations were, on their face, out of time, lacked specific factual averments against the third respondent, did not identify acts, a PCP, or unwanted conduct by her where required, and had no reasonable prospects of success. The tribunal also noted that similar allegations were made against the second respondent, so the claimant was not without remedy if the first respondent had no funds, and it concluded that the balance of prejudice favoured refusal.

Claims and outcomes

6 findings recorded

Claim type	Issue or finding	Outcome	Protected characteristic	Award
Disability discrimination	Refusal of amendment to add allegations 1 to 9 and 11 of direct disability discrimination against the third respondent. The tribunal found the allegations were substantial new pleading, were on their face out of time, lacked specific factual allegations against the third respondent, and had no reasonable prospects of success. This was a procedural ruling, not a merits determination.	Other	Disability	—
Disability discrimination	Refusal of amendment to add allegations 1 to 3 and 5 of indirect disability discrimination against the third respondent. The tribunal found no specific PCP identified against the third respondent, treated the allegations as out of time and insufficiently specified, and concluded they had no reasonable prospects of success. This was a procedural ruling, not a merits determination.	Other	Disability	—
Harassment	Refusal of amendment to add allegations 1, 3, 4, 5 and 7 of harassment related to disability against the third respondent. The tribunal held the allegations were new, out of time, lacking in specification, and did not identify unwanted conduct by the third respondent with reasonable prospects of success. This was a procedural ruling, not a merits determination.	Other	Disability	—
Victimisation	Refusal of amendment to add allegations 1, 2, 4 and 5 of victimisation against the third respondent. The tribunal found the allegations were out of time, insufficiently specified against the third respondent, and without reasonable prospects of success. Allegation 5 concerned withdrawal of an offer of shares by the second respondent and did not specify detriment by the third respondent. This was a procedural ruling, not a merits determination.	Other

Legal tests applied

6 references

Official outcome judgment PDF

Gov.uk primary record

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Published on gov.uk under the Open Government Licence v3.0.

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