Woodhouse v Hampshire Hospitals NHS Trust (Practice and Procedure : Amendment)

An Employment Tribunal considering an amendment must apply the Selkent balancing exercise in all the circumstances. It may refuse an amendment which is utterly hopeless, but where a proposed claim is genuinely new and arguable, it should not assess its evidential strength by reference only to material prepared for the existing claim.

The Tribunal must balance the parties’ relative injustice and hardship, including delay, limitation, prejudice and the prospect of a fair trial. A discretionary refusal cannot stand where it is materially affected by an irrelevant merits assessment or a plainly erroneous finding that there is no supporting evidence.

The Claimant brought proceedings for actual and constructive unfair dismissal, notice pay and holiday pay. On the eve of the listed hearing, he sought to amend his claim to add five disability-discrimination allegations and one public-interest-disclosure allegation.

The Employment Tribunal, chaired by Employment Judge Simpson, refused both amendments. It treated the disability claims as substantially out of time and concluded that the Claimant had no realistic disability claim because his witness statement contained no evidence of disability.

The Claimant appealed. The central issue was whether the Tribunal had lawfully exercised its discretion in refusing the proposed disability-discrimination amendment.

1. Appeal allowed and disability-amendment issue remitted. The refusal of the public-interest-disclosure amendment and the allegation of bias were upheld as hopeless. The Tribunal had been entitled to treat representation, substantial delay, possible prejudice to the Respondent, and the effect on a fair trial as relevant matters.

2. The Tribunal nevertheless erred in its treatment of the disability amendment. Under Selkent Bus Co Ltd v Moore [1996] UKEAT/0151/96, the discretionary exercise requires a balance of all the circumstances and of the injustice and hardship of allowing or refusing amendment. The merits may justify refusal where a proposed case is utterly hopeless. Otherwise, an arguable and substantial amendment should be considered after representations from both sides.

3. The disability allegations were accepted to be new claims, rather than new labels for pleaded facts. It was therefore irrelevant to assess their strength solely by examining evidence already exchanged for the constructive-dismissal case. Evidence directed to the new claim would necessarily need to be supplied if the amendment were allowed.

4. Further, the Tribunal’s finding that there was no evidence of disability was perverse. The material already before it included references to Parkinson’s disease, other conditions and fit certificates. Its erroneous merits assessment materially affected the discretionary balance, so the refusal could not safely stand despite the EAT’s restrained appellate role in discretionary decisions.

5. The EAT did not remake the discretionary decision because it lacked sufficient material. It remitted the disability-amendment application to the Employment Tribunal, with the Claimant to provide evidence supporting that proposed claim.

• Employment Appeal Tribunal: allowed the appeal against the refusal of the disability-discrimination amendment and remitted that application for reconsideration.
• Employment Tribunal: chaired by Employment Judge Simpson at Southampton, refused proposed amendments to add disability-discrimination and public-interest-disclosure claims.