Mr. P McWilliams v Represented by: - Mr. E Hawthorn, Advocate Scottish Courts and Tribunals Service — 2022

At a preliminary hearing on 10 May 2022, Employment Judge J Hendry considered the claimant's application to amend and the respondent's strike-out application. The case had a long procedural history: the claim was raised in July 2015, the claimant had worked for the respondent from 26 September 2011 to 16 March 2015, a prior judgment on reasonable adjustments had issued on 5 February 2018, and an appeal was dismissed on 23 December 2020. The claimant sought to rely on evidence given by Ms Kelly in 2016 as the basis for further disability-related claims, including section 15 discrimination and harassment.

The tribunal refused the amendment. Applying the Selkent approach and the overriding objective, it held the proposed claims were clearly late, appeared to be time barred, and were not simply a relabelling exercise. The tribunal accepted that section 15 could in principle cover absence-related issues, but held that the amendment came too late, would prejudice the respondent, and would make a fair trial difficult so long after the events.

The tribunal then struck out the remaining claims under rule 37. It held the harassment claim had no reasonable prospects of success, relying in part on the earlier findings that Mrs Kelly had been patient and supportive and that the respondent staff had tried to get the claimant back to work or redeployed. It also held that the harassment claim was time barred, noting the gap between the last contact with Ms Kelly and the commencement of proceedings.

The tribunal similarly struck out the disability discrimination claim. It held that the complaint was undercut by the earlier findings and that the treatment complained of was connected to the claimant's absences and lack of alternative roles rather than disability itself. The judgment therefore refused amendment, struck out the claims, and made no monetary award.