Mr P Chakraborty v Professor K Hion (1)15 University of Dundee(2) — 2022

Mr P Chakraborty had lodged a race discrimination claim on 21 December 2021 and had also ticked the unfair dismissal box, but at that point he was still employed by the University of Dundee and had given no details of any dismissal claim. He resigned on 30 December 2021. At a preliminary hearing on 18 February 2022 he was told that, if he wished to pursue unfair dismissal, he would need to apply to amend his claim or lodge a new one. He later applied on 14 April 2022 to amend the claim so as to add an unfair dismissal complaint against the University only; the respondents objected.

The tribunal applied the Selkent approach to amendments and held that this was a new head of claim, not a minor relabelling. It found that when the ET1 was presented the claimant had not resigned and had not yet decided whether to resign, so an unfair dismissal claim could not as a matter of law or logic have been included at that stage. The tribunal also accepted the respondent's submission that, if allowed, the amendment would likely require further evidence and fuller submissions because unfair dismissal is legally different from race discrimination, even if some factual material overlapped.

On time limits, the tribunal noted that the application was made 15 days out of time on a three-month basis from the effective date of termination. It accepted that the claimant had described difficult personal circumstances, including illness, GP care, medication, travel to India after his father's COVID illness and death, and the need to support his family, but held that he had given no reason for not seeking amendment between 30 December 2021 and the preliminary hearing, and then waited a further 55 days after that hearing. The tribunal said that, although he was clearly aware of time limits, those matters did not make it not reasonably practicable to bring the claim in time.

Balancing the injustice to each side, the tribunal said the claimant would lose the chance to pursue unfair dismissal if the amendment was refused, but the University would face a short timetable to respond, possible additional witnesses and documents, extra cost, and the risk of postponement of the final hearing. The tribunal therefore refused the amendment. The claimant remained able to continue with his pleaded race discrimination claim.