Whistleblowing amendment refused as out of time: race discrimination claim survives strike out
A former employee who remained employed could not pursue unfair dismissal, and his attempt to add a whistleblowing detriment claim was refused as a new cause of action outside the time limit. However, his race discrimination claim was allowed to proceed.
1 min read · Last updated 18 May 2026
Case details
- #race-discrimination
- #unfair-dismissal
- #amendment-refused
- #strike-out-refused
- #preliminary-hearing
Key facts
- The claimant presented an ET1 claim for unfair dismissal and race discrimination on 19 September 2022.
- The claimant withdrew his unfair dismissal claim because he remained employed by the respondent.
- The claimant applied to amend his claim to add a whistleblowing detriment claim on 20 January 2023.
- The amendment was refused as it was a new cause of action and out of time.
- The respondent's application to strike out the race discrimination claim was refused as it had reasonable prospects of success.
Timeline
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Alleged protected disclosure
The claimant raised a health and safety concern in a weekly conference call.
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Meeting with line manager
The claimant was told by Mr Daniels to 'find another job; this is coming from above'.
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ACAS early conciliation started
ACAS early conciliation began.
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ACAS early conciliation ended
ACAS early conciliation ended.
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ET1 claim presented
The claimant presented his claim for unfair dismissal and race discrimination.
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Claimant emailed tribunal about amendment
The claimant emailed the tribunal expressing a wish to add a whistleblowing detriment claim.
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Respondent applied to postpone and strike out
The respondent applied to postpone case management orders and indicated intention to strike out claims.
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Claimant provided amendment details
The claimant provided full details of the proposed amendment as ordered.
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Preliminary hearing
An open preliminary hearing was held to consider the amendment and strike out applications.
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Judgment issued
Employment Judge Welch issued the judgment dismissing the unfair dismissal claim upon withdrawal, refusing the amendment, and refusing the strike out of the race discrimination claim.
The legal issue
The tribunal had to decide whether to allow the claimant to amend his claim to add a whistleblowing detriment claim and whether to strike out the race discrimination claim for having no reasonable prospects of success.
The outcome
The tribunal dismissed the unfair dismissal claim upon withdrawal because the claimant remained employed. It refused the amendment to add a whistleblowing detriment claim, finding it was a new cause of action and out of time. The respondent's application to strike out the race discrimination claim was refused as it had reasonable prospects of success.
No compensation was awarded as the claims were either withdrawn or not yet determined.
Lessons & takeaways
- If you remain employed, you cannot claim unfair dismissal – you must be dismissed first.
- Adding a new claim after the time limit is difficult; tribunals will consider if it is a new cause of action and whether it is in time.
- Race discrimination claims with a single allegation can still have reasonable prospects of success and survive a strike-out application.
- Seek legal advice early to ensure all potential claims are included in the initial ET1 form.
A case of procedural hurdles
This case illustrates the importance of getting claims right from the start. The former employee initially brought claims for unfair dismissal and race discrimination, but later realised he had also suffered detriment for whistleblowing. However, because he remained employed, his unfair dismissal claim had to be withdrawn. His attempt to add a whistleblowing claim was refused as a new cause of action outside the time limit.
What the tribunal decided
The tribunal refused the amendment because the whistleblowing claim was not mentioned in the original ET1 and was raised after the three-month time limit. The claimant had been aware of the facts but did not include the claim initially. The tribunal also refused to strike out the race discrimination claim, finding it had reasonable prospects of success based on the allegation that he was told to 'find another job' because of his race.
What this means for similar claims
This case is a reminder that employment tribunal claims must be carefully drafted at the outset. If you have multiple potential claims, include them all in the initial claim form. Adding claims later is difficult, especially if they are out of time. However, even a single allegation of race discrimination can be enough to proceed to a full hearing.
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