Ms L Stirling v Hamill Homecare Limited — 2024

On 30 December 2024 Employment Judge D Hoey considered the claimant's application to amend her claim to add a complaint that the respondent had withheld a week's wage in exchange for return of uniform. The background to the case was that the ET1 had originally ticked unfair dismissal and discrimination, but unfair dismissal had already been withdrawn and the listed hearing was proceeding on disability discrimination issues under sections 15 and 20 of the Equality Act 2010.

The tribunal held that the proposed wages complaint was an entirely new complaint not foreshadowed in the original claim form. It noted that the claimant had not ticked the ET1 boxes for arrears of pay or other payments, and that despite several opportunities she had not explained why it was not reasonably practicable to raise the complaint in time. The respondent said its position was that payment would be made when its property was returned, and the claimant had said the uniform remained in the boot of her car.

Applying the overriding objective and the Selkent approach to amendment, the tribunal treated the issue as a case management decision and balanced the relative injustice and hardship. It found the complaint was out of time, would require different evidence and would widen the scope of the hearing, and that the hardship to the respondent outweighed the hardship to the claimant. It therefore refused the amendment as not being in the interests of justice.

The order recorded that the existing hearing would proceed on the issues already identified in the note of 13 May 2024. It also noted that, if the respondent refused to release sums the claimant said were due on return of the uniform, the claimant could pursue a sheriff court or small claims remedy.