Margarot Forrest Care Management v Kennedy

An Employment Tribunal may grant a claimant leave to amend an ET1, but it has no power to draft and impose an amendment of its own choosing. The proposed wording must be identified before the respondent is invited to respond, and both parties must have a fair opportunity to make submissions on it. A late amendment introducing a new statutory claim requires consideration of why it was not made earlier, applicable time limits, prejudice, delay and additional costs. The Tribunal must not act as advocate for either party. A prior grievance or undisclosed witness-order application does not itself provide fair notice of a claim absent from the ET1.

The claimant’s ET1 alleged wrongful dismissal and breaches concerning dismissal procedures and vehicle safety. At the final hearing, more than seven months after dismissal, her representative sought to introduce a different account: that she had been dismissed after refusing to abandon a personal injury claim concerning allegedly defective vehicle brakes.

The Employment Tribunal drafted its own amendment, including claims under the Employment Rights Act 1996, allowed it, and later refused the respondent’s application for review. The respondent appealed, contending that the Tribunal had exceeded its amendment power, failed to follow the required procedure, and failed to consider lateness and fair notice.

1. Appeal allowed. The Employment Tribunal’s order dated 5 August 2009 was revoked and the complaint was remitted to a freshly constituted Employment Tribunal.
2. An Employment Tribunal’s amendment power under rules 10(2)(q) and 27(7) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 is a power to grant leave to the claimant to amend the ET1 in the terms proposed. It is not a power for the Tribunal to draft an amendment in terms it considers preferable.
3. The procedure in Ladbrokes Racing Ltd v Traynor requires the Tribunal to identify the proposed amendment, allow the respondent to address that wording, and give reasons showing that relevant considerations were taken into account. The respondent must have fair notice of the case it has to meet. This applied with particular force because the proposed amendment introduced a wholly new statutory claim of automatically unfair dismissal for making a protected disclosure.
4. Where an amendment is sought after the time limit for presenting a fresh unfair-dismissal claim has expired, that is always a highly significant factor. The Tribunal must balance the hardship and injustice of allowing or refusing the amendment, considering the nature and terms of the amendment, time limits, the timing and reason for the application, delay, prejudice, evidential difficulties and additional costs. The absence of any explanation for the late emergence of the new case was a material error.
5. A grievance or an application for a witness order does not constitute fair notice of a claim which was not pleaded in the ET1. The Tribunal therefore relied on irrelevant material and failed to consider relevant material.
6. The Tribunal’s conduct risked creating the appearance that it had left its judicial role and acted as advocate for the claimant. No proper basis existed for the amendment order, and the case was remitted to a differently constituted Tribunal.

• Employment Tribunal: allowed an amendment to the claim on 5 August 2009 and refused the respondent’s review application by an order registered on 7 April 2010.
• Employment Appeal Tribunal: upheld the appeal, revoked the amendment order and remitted the complaint to a freshly constituted Tribunal.