Horsley v Secretary of State for International Development

Permission to appeal against refusal to amend an out-of-time unfair-dismissal claim was refused. An appellate court should be slow to interfere with an Employment Tribunal’s broad discretion on amendment and time-limit issues. Where later disclosure may support a new statutory ground of dismissal, the court may assess that material itself when deciding whether remission is justified. Remission is appropriate only where the material gives rise to an arguable case on the proposed ground. Disclosure of material which does not realistically support the alleged statutory reason does not justify reopening the tribunal’s decision.

The applicant had brought claims arising from the termination of his employment, including unfair dismissal. Because he lacked the qualifying service ordinarily required for an unfair-dismissal claim, he sought to amend his claim out of time to allege that dismissal followed a protected disclosure under section 103A of the Employment Rights Act 1996.

The Employment Tribunal refused permission to amend, and also refused a review. The Employment Appeal Tribunal dismissed the applicant’s appeal following a preliminary hearing. Further disclosure, including an internal staff memorandum, was later relied on as showing the alleged reason for dismissal. The central issue was whether that material justified interference with the tribunal’s refusal to permit the amendment.

1. Application refused. The Court of Appeal refused permission to appeal. Lord Justice Pill gave the principal judgment, with Lord Justice Chadwick agreeing.
2. An Employment Tribunal has a broad discretion when deciding whether an out-of-time amendment introduces a material change or effectively a new claim. The EAT and the Court of Appeal should be reluctant to interfere with that exercise.
3. Where late disclosure produces material which was not known, or could not be relied on, when the amendment was sought, and that material subsequently demonstrates a reason for dismissal which is, or may arguably be, within section 103A of the Employment Rights Act 1996, the appellate court may remit the matter for reconsideration. The court should assess the weight and effect of the newly available material before deciding whether remission is appropriate.
4. The internal memorandum, read as a whole, did not support an arguable case that the principal reason for dismissal was a protected disclosure. References to possible reputational or political consequences were part of a detailed assessment of workplace difficulties and did not establish the statutory reason alleged.
5. Lord Justice Chadwick added that, had the new material been relevant in the required sense and not disclosed earlier, he would have been sympathetic to reviewing the refusal. Since it did not support the proposed claim, there was no basis for revisiting the tribunal’s decision. The order was: application for permission to appeal refused.

• Court of Appeal (Civil Division): Permission to appeal was refused.
• Employment Appeal Tribunal: The applicant’s appeal from the Employment Tribunal’s refusal to permit the amendment was dismissed following a preliminary hearing.
• Employment Tribunal: Permission to amend the unfair-dismissal claim out of time was refused. A subsequent review application was also dismissed.