Mr D McDougall (deceased) v C/o Mrs Marion McDougall Represented by: Mr T Pacey - Counsel XPO Logistics — 2019

The tribunal dealt with an application to amend the ET1 after Mr D McDougall's death. The original claim, presented on 9 August 2018, alleged unfair dismissal and unpaid notice pay. Although the age discrimination box had not been ticked, the ET1 sought £15,000 for injury to feelings for age discrimination, and the claimant's advisers later sought to add both age discrimination and disability discrimination.

A letter from Stirling District Citizens Advice Bureau on 22 August 2018 asked to add age discrimination and disability discrimination, including allegations under sections 15, 19 and 20 of the Equality Act 2010. Further particulars dated 30 October 2019 also sought to add a further reasonable-adjustments allegation about the respondent's refusal to consider the claimant's appeal because it was submitted out of time. The respondent opposed the amendment on delay, evidential prejudice and merits.

Applying Cocking v Sandhurst (Stationers) Limited & another and Selkent Bus Company Limited v Moore, the tribunal held that the amendment was substantial but arose out of the same facts as the original claim. It found that the 22 August 2018 amendment had been made in time, and that the later appeal-procedure allegation either arose from facts already pleaded or, if out of time, should be allowed on a just and equitable basis. The tribunal accepted that the delay was explained by the claimant's death and the need for his widow to decide whether to proceed, and it found that the balance of prejudice favoured the claimant. The amendment was therefore allowed, with 28 days given for the respondent to lodge written answers. The judgment did not determine the underlying dismissal or discrimination claims on their merits.