The issue before the tribunal was whether the claimant should be granted leave to amend her claim so as to include a racial discrimination claim. The original claim contained a number of individual claims but did not contain any reference to discrimination on racial grounds. The respondent objected to the amendment by contesting that the claimant was attempting to bring a new claim that was not connected to the facts as pleaded. They further argued that the amendment ought to be subject to scrutiny in relation to time limits. The time limit for bringing a claim for race discrimination had expired by the time of the claimant’s application to amend the ET1 and it was argued that such a new claim should not form part of the proceedings.

The possible amendment was raised at the Case Management Discussion held on 30 May 2014 when the claimant was representing herself and there was later no reason afforded by the claimant’s representative as to why she did not raise racial discrimination until this stage. Counsel for the claimant urged the tribunal to accept that the proposed amendment was a relabeling of facts already pleaded in respect of pregnancy discrimination. In retort, it was claimed that there was ‘no causal link’ between the case as set out in the claim form and the proposed amendment. The tribunal considered the relevant documentation together with the submissions, the relevant principles of law, and findings of fact and concluded that the amendment constituted a new claim. In the alternative, the tribunal was satisfied that the amendment should not be allowed on the balance of justice and hardship ground.

Practical lessons

The very brief ‘Conclusion’ set out by the Tribunal indicates how firmly they were convinced by the fact that the proposed amendment would have constituted a new claim. The issue of hardship was not addressed in great detail, but this would indicate that the other factors were enough for the Tribunal to reject the amendment. However, the case of Selkent Bus Company Limited v Moore [1996] IRLR 661 was specifically cited and the ‘hardship’ balancing exercise is still an important consideration when other factors are finely balanced.