Anderson v Network Rail Infrastructure Ltd

An Employment Tribunal has a broad discretion to refuse a late amendment introducing a new discrimination claim. Relevant considerations include whether the amendment raises a new cause of action, its lateness, delay, hardship, evidential prejudice, additional cost and any applicable time bar. A prior amendment which deliberately confines the claim to a different issue may be particularly significant. The tribunal is not required to relieve a claimant from the consequences of an earlier amendment made on the claimant’s instructions, absent evidence of adviser negligence or other compelling circumstances. An appellate tribunal will not interfere where the decision was plainly open to the Employment Tribunal.

The claimant appealed against an Employment Tribunal’s refusal to amend his disability discrimination claim. His original claim was clarified in December 2008 through legal representatives and expressly restricted to a single complaint concerning the change in his job position. When the hearing began in September 2009, he sought to introduce for the first time a claim that the respondent had failed to make reasonable adjustments.

The Employment Tribunal considered whether the amendment introduced a new cause of action, its lateness, hardship, delay and time bar. It refused the application. The central issue before the Employment Appeal Tribunal was whether that exercise of discretion disclosed an error of law.

1. The appeal was dismissed. The Employment Tribunal had properly exercised its discretion in refusing the proposed amendment.
2. The original ET1 did not even hint at a claim for failure to make reasonable adjustments. The Tribunal was therefore not required to treat that claim as having already been pleaded or to consider the amendment merely as a return to the original position.
3. Even if the original ET1 had contained such a claim, the December 2008 amendment was highly significant. It had been made after an opportunity to clarify the proceedings and confined the case to a single issue which did not concern reasonable adjustments. There was no evidence that the amendment had been made otherwise than on the claimant’s instructions, or that the claimant’s advisers had been negligent. The circumstances were therefore materially different from those in Chohan v Derby Law Centre and TGWU v Safeway Stores.
4. The proposed amendment introduced a claim for the first time approximately two years after the relevant incidents and seventeen months after presentation of the claim. It would have been time-barred as a fresh claim. The Employment Tribunal was entitled to take account of the need for a fresh investigation, witnesses who were no longer employed by the respondent, dimmed memories and additional cost.
5. Considering all relevant factors, including the prior restriction of the claim and likely hardship to the respondent, refusal was plainly open to the Employment Tribunal. The case was remitted to that Tribunal to proceed accordingly.

• Employment Appeal Tribunal: dismissed the appeal against the Employment Tribunal’s refusal to permit amendment and remitted the case to that Tribunal to proceed accordingly.
• Employment Tribunal: refused the claimant’s application to amend his disability discrimination claim.