Mr J Ataarem v SGZ Cononish Limited — 2023

This was a case management judgment on an application to amend, not a merits decision on liability. Mr Ataarem had presented a claim alleging race discrimination and had ticked the unfair dismissal box, with a reference in his paper apart to "constructive discriminatory dismissal". After a preliminary hearing on 3 November 2022, he was ordered to apply within 14 days if he wished to amend the claim to include claims under sections 100, 103A and 47A of the Employment Rights Act 1996, or to confirm that he no longer pursued them. He did not meet the 18 November deadline, the respondent sought strikeout on 2 December 2022, and the claimant then applied on 5 December 2022 to amend, explaining the delay as an oversight in diarising the deadline.

Employment Judge McFatridge applied the approach in Selkent Bus Company Ltd v Moore and carried out the usual multi-factorial balancing exercise. The judge accepted the explanation for the short delay, noted that the claimant was unrepresented when the ET1 was lodged, and treated the late application as not especially late in the overall conduct of the case. The respondent said it had no objection to adding a victimisation claim under section 27 of the Equality Act, although it noted that this appeared to be based on the same facts as the whistleblowing detriment point, and it also said the new automatic unfair dismissal heads depended on an alleged disclosure of gas test readings to the claimant's supervisor on 16 June, which had not been mentioned in the original ET1.

The tribunal held that allowing the amendment would not materially prejudice the respondent or greatly extend the hearing. It noted that the alleged disclosure was a new disclosure not foreshadowed in the ET1, but considered that further and better particulars of protected-disclosure claims after a preliminary hearing are not unusual, that the respondent could ask the claimant's former supervisor about the alleged disclosure, and that cogency of the evidence was not shown to be affected. The judge concluded that the balance favoured amendment, including because refusing it might deny the claimant a remedy to which he may be legally entitled. The application to amend dated 5 December 2022 was therefore allowed; no compensation or other monetary remedy was awarded in this judgment.