Queensway Surgery v Jayatilaka

An amendment to an employment claim is not a mere re-labelling exercise where the pleaded primary facts lack a causative link to the legal consequences advanced by the amendment. An amendment may nevertheless be permitted where its factual basis is already pleaded, limitation issues are addressed, and the balance of hardship favours allowing it. Delay is a discretionary factor but is not necessarily fatal. The relevant considerations include prejudice, additional evidence, hearing length and costs.

The claimant presented a claim for constructive unfair dismissal. She later applied to amend it to include disability discrimination, failure to make reasonable adjustments and harassment under the Disability Discrimination Act. The Employment Judge allowed the amendments.

The respondent appealed, arguing that the amendments introduced new causes of action, were insufficiently particularised and were made after unexplained delay. The central issues were whether the amendments were properly characterised and whether the Employment Judge had exercised the amendment discretion correctly.

1. Appeal partly allowed. The first and third sentences of paragraph 1 of the Employment Tribunal’s judgment were set aside. The remainder of paragraph 1 and paragraphs 2 and 3 were upheld.
2. The distinction between a re-labelling exercise and the introduction of a new cause of action is established for amendment applications, following Selkent Bus Company Ltd v Moore [1996] IRLR 661. The proposed amendment concerning increased workload between 2002 and May 2009 was not merely a re-labelling exercise because the pleaded primary facts lacked a causative link to the disability discrimination consequences now alleged. The Employment Judge had also failed to address the limitation issues arising from that period.
3. The amendments concerning the refusal on 1 June 2009 to reduce workload and the alleged aggressive conduct were different. Their factual basis was plainly set out in the original Form ET1. The Employment Judge had granted an extension of time for those matters, and the delay in applying to amend was a discretionary factor rather than an automatic bar.
4. Even if the absence of an express finding about the delay amounted to an error of law, the EAT would exercise the discretion itself. The balance of hardship favoured allowing the amendments because they would not materially increase the hearing or costs, the relevant facts were already pleaded, and refusal would deprive the claimant of the opportunity to pursue disability discrimination complaints.
5. The approach of the Court of Appeal in Housing Corporation v Bryant [1999] ICR 123 was applied to the first amendment. The amended pleading could proceed only to the extent permitted by the Tribunal’s revised order.

• Employment Appeal Tribunal: allowed the respondent’s appeal in part and varied the Employment Tribunal’s order.
• East London Employment Tribunal: Employment Judge Brook permitted amendments to add disability discrimination, reasonable-adjustments and harassment complaints.