Mr R Gourlay v Dundee Science Centre — 2020

This was a preliminary hearing to decide whether disputed parts of Mr Gourlay’s Further and Better Particulars should be treated as an amendment and, if so, whether permission should be granted. The claimant said he was expanding an existing claim of unfair dismissal and disability discrimination, with some allegations re-labelled from harassment under section 26 to discrimination arising from disability under section 15, while two matters remained pleaded as harassment and his reasonable-adjustment complaints under sections 20 and 21 ran to February 2019. Dundee Science Centre argued that the disputed material introduced new facts and new claims and should be refused as out of time.

Employment Judge A Kemp applied the Selkent approach to amendment. The judge held that the disputed material was new factual matter and therefore an amendment, but that it had a sufficiently close causal link to the original ET1 to justify permission. The original claim form had already pleaded unfair dismissal and disability discrimination, and the judge accepted that the amended material would not require an entirely new line of inquiry and would overlap with evidence relevant to the unfair dismissal claim.

On time limits, the tribunal said there was a material possibility that the section 15 allegations could be treated as conduct extending over a period up to dismissal on 29 June 2019. For the sections 20 and 21 reasonable-adjustment allegations and the section 26 harassment allegations, the judge considered that the claimant had a reasonable argument that it would be just and equitable to allow them to proceed if they were otherwise out of time. The judge took account of the claimant’s disability, his status as a litigant in person, the difficulties he had obtaining legal advice, and the mental ill health he described when preparing the claim form. No specific hardship to the respondent was identified beyond the loss of a time-bar point and the ordinary risks caused by passage of time. The application to amend was granted, but the substantive merits and any limitation arguments were left for later determination.