Automated Summary
Key Facts
The Employment Tribunal refused the claimant's application to amend his case, determining the proposed claims lacked reasonable prospects of success and were out of time. The claimant sought to add allegations of victimisation based on comments about his chemistry skills and role as a science teacher, which he discovered in August 2016 but did not include in earlier proceedings. The tribunal also rejected his post-termination protected disclosure claims, noting he failed to act on the information in a timely manner despite prior opportunities to amend. Leave to amend was only granted for issues where the respondent did not object.
Issues
- Whether the tribunal should grant leave to amend a claim lacking reasonable prospects of success under Section 23 of the Equality Act 2010, particularly when the claimant seeks to allege more favourable treatment rather than detriment caused by a protected act.
- Whether a protected disclosure under Section 43A of the Employment Rights Act 1996 can be made after termination of employment, referencing the case Onyango v Berkeley, and if this justifies the amendment application.
- Whether the claimant's omission of certain allegations in the original proceedings and subsequent ET1 form, despite being aware of them in August 2016, disqualifies them from seeking amendment now under the tribunal's discretion.
- Whether the claimant's new allegations, discovered in August 2016, are out of time when applied for in May 2017, and if the tribunal should disregard them despite the claimant's argument of a 'continuing act' of victimisation.
Holdings
- Leave to amend was granted only for issues where the respondent did not object, as outlined in the summary provided to the parties on 9 August 2017. All other amendments were rejected based on the reasons detailed in the judgment.
- The tribunal refused leave to amend the claim as it lacks reasonable prospects of success, with the claimant unable to establish that his requests were refused because of a protected act under the Equality Act 2010. The claim is based on more favourable treatment rather than victimisation, which does not fall under the Act's provisions.
- The tribunal determined that the claimant's post-termination protected disclosure (about a child handling acid) could not be amended into the case as it was discovered in August 2016, not included in the initial proceedings, and the claim is now out of time. The claimant also failed to demonstrate a continuing act justifying late amendment.
- The claimant's application to amend was rejected because he failed to include specific allegations (e.g., 2015 comments about his chemistry skills and H&S knowledge) in the original proceedings or the ET1 form. The tribunal found this matter was discovered in August 2016 but not pursued earlier, rendering it out of time.
Remedies
The tribunal refused leave to amend the claimant's application except for those issues where the respondent did not object. The claimant's request to add new allegations was denied due to lack of reasonable prospects of success and time limits.
Legal Principles
The tribunal considered the application to amend a claim under the Equality Act 2010, emphasizing that amendments must have reasonable prospects of success and not impose unnecessary costs on the respondent. It also addressed the requirement for detriment to be 'because of' a protected act, referencing the EHRC Employment Code. The case highlighted procedural considerations such as time limits and the claimant's failure to include certain matters in previous litigation.
Precedent Name
- Onyango (appellant) v Berkeley t/a Berkeley Solicitors (respondent)
- Selkent Bus Co Ltd v Moore
Cited Statute
Equality Act 2010
Judge Name
Laidler
Passage Text
- In considering an application for leave to amend the tribunal must take into account as one of the factors whether the claim has any reasonable prospect of success as to allow leave to amend a claim that does not would just result in putting the respondent to unnecessary costs. It is quite clear that this particular claim does not have reasonable prospects as the claim that is being sought to be advanced is one of more favourable treatment than others. The claimant is not going to be able to establish that his requests were refused because of his protected act. Leave to amend is refused.
- Save insofar as the respondent did not object to the amendments leave to amend is refused.
- In considering an application to amend the tribunal must, as one of the factors, consider time limits and whether or not the new claim sought to be added would now be out of time. If calculated from August 2016 this claim would have been out of time even when the claimant presented this ET1 on the 8 May 2017. It was even further out of time when the claimant applied for leave to amend before the last Preliminary Hearing.