The Claimant presented complaints of direct race discrimination and/or harassment that were out of time. She also applied to amend her claim to add a further Equality Act complaint, which, had it been raised as a freestanding claim at that time, would also have been out of time. In refusing, at a preliminary hearing, to extend time, or to allow the amendment, the ET in each case weighed in to the balance its view that the merits of the complaints appeared to be weak. The Claimant contended on appeal that it was in wrong in law for the ET to take account of its view of the merits, of a complaint which it did not consider were so weak that it had no reasonable prospect of success, when deciding whether it was just and equitable to extend time, and when deciding whether to allow an application to amend. In particular it was argued that this would undermine or circumvent the strike-out rule and the safeguards attendant upon it. It was also contended that the Claimant, a litigant in person, had not had fair warning that the merits of her proposed complaints might be considered and taken into account.

The EAT dismissed the appeal. The potential merits of a proposed complaint, which is not plainly so weak that it would fall to be struck out, are not necessarily an irrelevant consideration when deciding whether it is just and equitable to extend time, or whether to grant an application to amend. However, if the ET weighs in the balance against the Claimant its assessment of the merits formed at a preliminary hearing, that assessment must have been properly reached by reference to identifiable factors that are apparent at the preliminary hearing, and taking proper account, particularly where the claim is one of discrimination, of the fact that the ET does not have all the evidence before it, and is not conducting the trial. The ET had properly done that.