Mrs J Downs v Glasgow Kelvin College — 2019

The claimant's original ET1, lodged on 16 November 2018, raised claims only under sections 146 and 168 of TULRCA. No discrimination boxes were ticked, and at the 1 February 2019 case management preliminary hearing those trade union claims were again identified as the only claims being advanced. On 9 August 2019 the claimant sought to amend the case to add a Public Interest Disclosure Act claim and claims of sex and disability discrimination; her agenda also identified direct sex discrimination, indirect sex discrimination, harassment on grounds of sex, discrimination arising from disability, and failure to make reasonable adjustments.

Applying the Selkent principles, the tribunal held that the proposed amendments were not mere clarification but new causes of action. It found that they were all substantially out of time, that it was reasonably practicable for any PIDA claim to have been included in the ET1 already lodged on 16 November 2018, and that it would not be just and equitable to extend time for the discrimination claims given the circumstances of the application.

The tribunal accepted that the claimant had been unwell, including sickness absence from 6 June 2018 and subsequent treatment for breast cancer, but it did not accept that illness prevented her controlling the direction of her claim. It relied on the fact that she was an experienced trade union representative, initiated early conciliation on 4 September 2018, wrote an email on 12 September 2018 summarising her case and citing the relevant legislation, completed a Unison case form on 17 September 2018, met Thompsons on 1 November 2018, and later reviewed the draft ET1 and further specification. Balancing hardship and injustice, the tribunal concluded that the prejudice to the respondent from additional time, cost and delay outweighed the prejudice to the claimant, and the application to amend was refused in its entirety. The existing TULRCA claim was left to proceed to final hearing.