Ms J Robertson v Represented by Mr S Smith Solicitor B&Q Limited — 2021

Ms J Robertson presented an ET1 on 28 May 2021 claiming discrimination arising from disability. Before the final hearing, she applied to amend the claim to add a new victimisation complaint, and also sought to continue the case under her maiden name Morrison. The proposed victimisation claim was said to arise from a grievance raised in January 2021 and from two alleged detriments: repayment of an April 2021 wages underpayment on 31 May 2021, which she said affected her Universal Credit for that month, and a comment made by Gary Burns on 11 May 2021.

The tribunal applied the Selkent approach and considered the nature of the amendment, the time limit position, the timing and manner of the application, and prejudice to each party. It held that the victimisation amendment was substantial because it introduced a new cause of action and new factual allegations rather than merely re-labelling facts already pleaded. However, it found that the application was made within three months of the acts complained of, so it was within section 123(1) of the Equality Act 2010. The tribunal accepted that the matters ought to have been included in the original ET1, but noted that the respondent would not need additional case management, additional witnesses, or extra hearing time if the amendment were allowed.

The tribunal found that the prejudice to the respondent would be minimal, while refusing the amendment would cause significant prejudice to the claimant because she would be unable to pursue the victimisation claim. Balancing hardship and injustice, it granted the application to amend. The tribunal also recorded that the respondent should amend its response within 14 days of the judgment being sent to the parties.