Edwards v London Borough Of Sutton

An Employment Tribunal must not refuse an amendment solely because it introduces new causes of action. Where the proposed amendment is arguable and substantial, and could reasonably be opposed, the Tribunal should obtain the other party’s representations before deciding the application. It must then consider all the circumstances, including the amendment’s nature, time limits and the timing and manner of the application, and balance the respective injustice and hardship of allowing or refusing it.

This procedure follows Selkent Bus Company Ltd v More [1996] ICR 836.

The claimant appealed against an Employment Tribunal decision, notified by letter on 4 November 2011, refusing her application of 2 November 2011 to amend her claim. The proposed claims arose from the respondent’s refusal to retain her after 3 August 2011. Her employment status remained disputed.

The Employment Judge refused the application because it raised new causes of action and said that a new claim should be presented. The central issue was whether that approach lawfully exercised the discretion to permit amendments.

1. Appeal allowed. The Employment Judge erred in refusing the amendment solely because it introduced new causes of action. The material did not establish that the proposed claims were necessarily time-barred or hopeless.
2. The proposed amendment was arguable and substantial. It fell within the category described in Selkent Bus Company Ltd v More [1996] ICR 836 where the respondent could reasonably oppose it. The Tribunal should therefore have invited the respondent to state whether it consented or objected, and its grounds for objection, before determining the application.
3. The Tribunal must then decide the application in accordance with the Selkent guidance. It must consider all the circumstances and balance the injustice and hardship of permitting the amendment against those of refusing it. Relevant matters include the nature of the amendment, any applicable time limit, and the timing and manner of the application.
4. The amendment issue was remitted to the Employment Tribunal. If it was resisted, it would be sensible to resolve that issue with the preliminary question whether the claimant was an employee or a contract worker, so that the substantive claims could subsequently be determined on a defined basis.

• Employment Appeal Tribunal: allowed the claimant’s appeal and remitted the amendment application to the Employment Tribunal.
• Employment Tribunal: by a decision notified on 4 November 2011, refused the claimant’s amendment application because it raised new causes of action.