The Claimant alleged that multiple incidents occurred over a period of about ten months which together amounted to a cumulative breach of the implied duty of trust and confidence. She resigned and claimed constructive unfair dismissal and applied to amend her application to include complaints of sexual harassment and victimisation. The ET struck out her claim of constructive unfair dismissal at a preliminary hearing. The ET also refused an application to amend, in respect of a complaint of sexual harassment that was discrete and significantly out of time and in respect of a complaint of victimisation, including by constructive dismissal. The Claimant appealed.

The EAT allowed the appeal in part. The ET erred in striking out a claim of constructive unfair dismissal at a preliminary hearing. There were a number of material disputes of fact. The ET cited, but failed to apply, the stringent test for a strike out. The ET did not, in all the circumstances of the case, err in refusing an application to amend, in respect of a complaint of sexual harassment that was discrete and significantly out of time. The ET did err in refusing an application to amend in respect of a complaint of victimisation, including by constructive dismissal. The factual conduct said to amount to a protected act (a grievance alleging sexual harassment), and the factual conduct said to amount to victimisation, were already pleaded. The Claimant had not hitherto pleaded that that conduct was because of the protected act, which was an essential component of a complaint of victimisation. However, the ET failed to consider, or explain if it had considered, what the impact of allowing the amendment would be on the evidential scope of the claims and the hearing. The matter was remitted to the ET to consider the application afresh.