Mr J Sinclair v Bilfinger (UK) Ltd: 4103572/2025
JUDGMENT
[1]The claimant’s application to amend dated 3 February 2026 is allowed.[2]INEOS FPS Limited is added as an additional respondent in these proceedings as there are issues between them and the claimant falling within the jurisdiction of the Tribunal and it is in the interests of justice to have these determined in these proceedings, all in terms of rule 35 of the Employment Tribunal Rules of Procedure 2024.[3]The Tribunal is directed to serve the ET1 paper apart and the further better and further particulars on the second respondent. The second respondent shall have 28 days from the date of service within which to serve their response to the claimant’s claim.REASONS
[1]In this case, the claimant submitted a claim to the Tribunal initially directed against Bilfinger (UK) Limited only. He claimed that he had been employed by that company and that he had been unfairly dismissed by them and that they had unlawfully discriminated against him on the grounds of disability. He set out a history of the matter in which he noted that he had been dismissed as a direct result of an instruction received by Bilfinger (UK) Limited from a third party namely INEOS FPS Limited who are now the proposed second respondent. The first respondent duly submitted a response. They stated that their relationship with INEOS FPS Limited was governed by an construction services agreement and essentially confirmed that the claimant had been dismissed as a result of an instruction from the proposed second respondent that he was no longer to be permitted on their site. At the time the claimant had submitted his initial application, he was not professionally represented by a solicitor. He then sought to instruct a solicitor and shortly following their instruction, these solicitors wrote to the Tribunal on behalf of the claimant setting out further and better particulars of claim and making an application that INEOS be added as second respondents in the case and that the document headed ‘further and better particulars’ provided by them be accepted by them as an amendment of claim. The respondents objected to this course of action in an email dated 13 February 2026. It was thereafter decided that the matter would be dealt with on the basis of these written representations which would be considered at a in chambers hearing held on 13 April 2026.[2]Having considered the matter in chambers, I have decided to grant the claimant’s application in full for the following reasons.[3]The principal matter to be decided was whether or not to allow INEOS FPS Limited to be added as a second respondent. The matter is covered by rule 35 of the 2024 Rules. I required to take into account two matters. The first of these is whether there are any issues falling within the jurisdiction of the Tribunal between the proposed new respondent and any of the existing parties. The second is whether it would be in the interests of justice to have the issues determined in the proceedings.[4]I considered that in this case, it was clear both from the initial claim itself and more specifically in the further and better particulars that there were issues between the claimant and the proposed second respondent. The claimant’s position is that he was dismissed as a result of a direct instruction from the second respondent. It was his position that his dismissal was discriminatory and a breach of section 15 of the Equality Act. He sets out the reasons for that. In addition to alleging that INEOS gave a discriminatory instruction to the first respondent, the claimant is alleging in his further particulars that the first respondent Bilfinger had induced INEOS to request that he be removed from site thus resulting in his dismissal. If the claimant is correct bothe the alleged actings of the first respondent and the actings of the second respondent would be prohibited in terms of section 111.[5]The respondent’s representative makes a number of pleading points as to the precise way in which the liability has been stated in the further and better particulars but I do not consider these points to be particularly relevant. It may well be that the claimant has not made reference to the specific sections of the Equality Act which would apply however the claimant’s position is clearly that his dismissal was an act of disability related discrimination which falls within section 15 of the Equality Act. He is clearly saying that there was an agent-client relationship. He is clearly saying INEOS instructed the first respondent to remove him from site for reasons which were discriminatory. The respondent’s representative criticised the claimant for not going into more details of this but they do not consider this criticism to be justified. I also see absolutely no need for a claimant in a discrimination claim to make specific reference to s108. The claimant has pled more than enough information to be in a position to make this allegation and the precise nature of the relationship between the parties will be something for the Tribunal to determine. It appears to me that this is clearly the type of situation which is illegal in terms of the Equality Act. An end user cannot escape liability for a discriminatory instruction because they were not the employer. If the decision to dismiss was indeed made for something arising out of his disability and if it is not capable of being justified on the grounds of proportionality, then in terms of the Equality Act, he clearly has a remedy against both the second respondent and the first respondent. That is a matter within the jurisdiction of the Tribunal.[6]The respondent also refers to the specific terms of the construction services agreement as somehow exempting the second respondent from liability. If this is the case then that would be a matter to be decided at the hearing. The claimant cannot be criticised at this stage for not referring to the detailed terms of a document he has not seen. The claimant is offering to prove there was an agent client relationship and he is offering to prove that Ineos instructed the first respondent to discriminate in breach of s111. He appears to also be saying that the first respondent instructed Ineos to act in a discriminatory way by giving the discriminatory instruction but that is another matter. There is a clear breach of s11 alleged. The terms of the specific agreement between Ineos and the first respondent may be relevant but the claimant cannot be expected to provide detailed pleadings in respect of that at this stage.[7]On the issue of the interests of justice, the respondents have not given any good reason why the claimant’s claim should not be adjudicated upon. I accept that so far as timing is concerned, he was not professionally represented at the time he put his initial application in. The application was put in very soon after he instructed solicitors. If INEOS are not added as a party the claimant loses the opportunity of obtaining a remedy for discriminatory behaviour. The only prejudice to INEOS is that they lose the windfall benefit of not having to defend their allegedly discriminatory actions. It is manifestly in the interests of justice that the application to add INEOS as a party should be allowed.[8]With regard to the decision as to whether or not to accept the further and better particulars, I have looked at these carefully and consider them to be little more than further and better particulars of claim. There are no new facts pled that have any significance. The claim is set out in a slightly more focused form which will assist the Tribunal in dealing with the matter before it. I can see no real prejudice to the respondent if the amendment is accepted save that they will be dealing with a slightly more focused professionally drafted claim than they were previously dealing with. On the other hand, I consider they would be prejudiced to the claimant if the further and better particulars were not allowed. Whilst he makes reference to INEOS in his initial ET1, the averments are much more focused in the further and better particulars. My decision therefore is effectively to grant the claimant’s application in full. The effect of this is that the claim will have to be served afresh on INEOS and they will require to be given a period of 28 days to lodge their response with the Tribunal.[9]At that stage, I would suggest that a further preliminary hearing be fixed for case management purposes in order to decide how the case should be dealt with.