ET makes principled error of law in refusing application to include victimisation claim

In Dethling v The Metropolitan Police Service [2025] EAT 58, the claimant attempted to amend her existing complaints of disability, race and sex discrimination to include a complaint of victimisation following a letter sent by her former employer’s solicitors warning of the imminent filing of a theft report over her warrant card, which she had not returned. The employment tribunal refused the application on the basis that the claim had weak merit, and the balance of prejudice being in favour of the respondent. The claimant argued that:

• the tribunal failed to apply the low threshold required for determining whether or not the claimant had suffered a detriment as required by Shamoon v Chief Constable of the Royal Ulster Constabulary and St Helens Borough Council v Derbyshire

• the tribunal erred in law in determining that the claimant did not have sufficient information to establish a prima facie case by failing to take into account previous correspondence and negotiations between the parties

• the tribunal failed to properly apply the Selkent balancing exercise

In upholding the appeal, the EAT found that:

• the tribunal treated the options of facilitating the return of the warrant card and attempting to intimidate the claimant as a binary and mutually exclusive situation and failed to properly consider the escalation element evident from the correspondence

• there was no evidence to suggest that the tribunal believed allowing the amendment would give rise to other significant complicating features, or might derail or upset the efficient progress and resolution of the existing claim

• the tribunal had applied too exacting a legal test to the causation question. It did not give enough weight to the claimant’s evidence of what she reasonably believed to be intimidation due to her tribunal claim and focused too much on its own assessment of the content of the emails, and the respondent’s legitimate concerns. This was a principled error of law

The EAT quashed the tribunal’s refusal to amend the claim and granted the application.

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