Claimant v Whyte & Mackay Limited — 2022

At a closed preliminary hearing on 12 April 2022, Employment Judge W A Meiklejohn considered the claimant's application to amend his ET1 and further particulars. The claimant was in person and the respondent was represented by a solicitor. The judgment dealt only with amendment and did not determine the substantive unfair dismissal or disability claims.

The tribunal allowed the claimant to add factual matters from his 13 January 2022 and 17 January 2022 documents, including the 28 June 2021 return-to-work discussion about attendance problems, the 16 August 2021 grievance email, the 25 August 2021 request for a half-day of holiday because of ongoing health problems, the reversal of that request, and the 26 August 2021 request for reconsideration. It held that the 25 August 2021 incident was a new allegation capable of supporting a disability-based complaint, and that it was just and equitable to extend time under section 123 of the Equality Act 2010.

The claimant said he wanted to add a label of direct discrimination to incidents already in the ET1. The tribunal held that he was in substance seeking to add a complaint of discrimination arising from disability, not direct discrimination, and treated the application accordingly to avoid unnecessary formality and delay. Applying Selkent and the overriding objective, it found the new label involved the same facts rather than a new factual enquiry, that the final hearing would not need to be delayed, and that the balance of prejudice favoured the claimant. It therefore granted the amendment to add discrimination arising from disability and refused the application to add direct discrimination.