Olayemi v Athena Medial Centre & Ors (Unlawful Deduction from Wages)

An Employment Tribunal has a broad case-management discretion when deciding whether to permit a late amendment. The relevant question is the balance of injustice and hardship, assessed in all the circumstances. Relevant considerations include the delay, the stage reached in the proceedings, the reason for the delay, any widening of the evidence or issues, and the apparent prospects of the proposed claim. The appellate tribunal should interfere only where the discretion was exercised on an erroneous legal basis or otherwise exceeded its proper bounds. A written decision need not identify every factor considered. Delay may properly carry substantial weight where the proposed claim is significantly out of time and is introduced after the issues have been agreed.

The claimant brought claims including unfair dismissal, sex discrimination and unlawful deduction from wages. After the parties had agreed a list of issues and preparations for a 15-day hearing were substantially advanced, she sought to amend her claim to include automatically unfair dismissal for making protected disclosures under section 103A of the Employment Rights Act 1996.

The Employment Judge refused the amendment on 24 February 2010, considering the delay, procedural stage, increased evidential and argumentative scope, the existing compensation claims and the proposed claim’s prospects. He refused to vary that decision on 30 March 2010. The claimant appealed against both decisions.

1. Appeals dismissed. The Employment Judge had correctly directed himself in law and reached a conclusion well within his case-management discretion.
2. An application to amend must be determined by balancing the injustice and hardship of allowing or refusing the amendment. It is unnecessary for the written decision to set out every factor deployed or capable of being deployed, provided the correct legal approach is apparent.
3. Delay was a legitimate and significant consideration. The proposed claim was about 14 months out of time, was introduced after the list of issues had been agreed and directions given, and its cause was not adequately explained in the original application. The Employment Judge was entitled to give delay the weight he considered appropriate and did not treat it as determinative.
4. The proposed protected-disclosure claim would materially widen the evidence and argument. Under sections 43B(1) and 43C(1) of the Employment Rights Act 1996, issues concerning the sender’s reasonable belief, good faith and whether disclosures were made to prescribed persons would arise. Those matters were distinct from the existing complaints concerning the respondents’ treatment of the claimant’s communications.
5. The Employment Judge was entitled to take account of the claim’s apparent prospects, since section 103A required the claimant to establish that the protected disclosure was the principal reason for dismissal. His reference to prospects explained the legal hurdle and was not an impermissible determination of the merits on a paper application.
6. Evershed v New Star Asset Management was properly distinguished. It involved one undisputed email and an existing unfair-dismissal claim concerning the employee’s state of mind, whereas the proposed amendment here involved numerous disputed documents, some sent to other bodies, and materially different issues.
7. Case-management decisions are primarily for the tribunal of first instance. The appeal tribunal may intervene for an error of law, but none was established. The application for costs under rule 34A(1) of the Employment Appeal Tribunal Rules was refused because the appeal was not misconceived.

• Employment Tribunal: Employment Judge Pritchard refused the application to amend on 24 February 2010 and declined to vary that decision on 30 March 2010.
• Employment Appeal Tribunal: The two linked appeals were dismissed.