ETZ 4(WR) IN THE EMPLOYMENT TRIBUNAL (SCOTLAND) AT EDINBURGH Judgment of the Employment Tribunal in Case No 4121871/2018 Issued Following Open Preliminary Hearing Held at Edinburgh on June 2019 Employment Judge J G d’Inverno, QVRM, TD, VR, WS Mrs R Wyse v Appeared in person Healthcare Improvement Scotland — 2019

At the open preliminary hearing on 17 June 2019, Employment Judge d'Inverno considered Mrs Wyse's 46-page Minute of Amendment to her ET1 against Healthcare Improvement Scotland. The respondent did not oppose amendment for the constructive/unfair dismissal material on pages 1-17 or the redundancy payment material on pages 41-46, and the tribunal granted leave for those parts, subject to the claimant identifying precisely where the wording fitted into the existing paper apart and the respondent then having time to answer. No monetary remedy was determined, because the judgment dealt only with amendment.

The tribunal refused the rest of the amendment. It found the minute difficult to follow, not coherent, and insufficiently particularised, with marginal references to about 126/127 embedded documents and no clear locating instructions or fair notice of the statutory basis of many allegations. Applying Selkent and the hardship and prejudice balancing exercise, it held that the health and safety duty of care allegations, disability discrimination allegations, protected interest disclosure allegations, and most of the sex discrimination material were being introduced as new claims or new factual allegations, many apparently out of time and without any pleaded basis for extending time.

In relation to the sex allegations, the tribunal read the original ET1 as giving notice of a sexual harassment complaint, potentially under section 26 of the Equality Act 2010, and noted that the claim had been first presented on 19 October 2018 after ACAS early conciliation. It nevertheless refused leave to amend the 14 January 2015 incident and refused the balance of the sex discrimination amendment, saying the proposed pleading did not give fair notice of the claims or their statutory basis. The reasons also contained one passage referring to a 28 May 2015 incident, but the operative order stated that the only allowed amendments were the constructive/unfair dismissal and redundancy payment particulars. The tribunal gave Mrs Wyse 28 days to take advice and, if so advised, tender a fresh recast Minute of Amendment.