Watkins v British Broadcasting Corporation

An Employment Tribunal considering an amendment must apply the Selkent approach. It must assess the nature of the proposed amendment, the relevance of time limits, and the timing and manner of the application. It must then balance the injustice and hardship of allowing the amendment against those of refusing it.

An amendment which introduces new protected disclosures and a substantially different factual theory is not merely a relabelling of pleaded facts. Even where it remains connected with the original claim, the tribunal may use the primary limitation period as a measure of delay. An appellate court will not interfere with a case-management discretion unless it falls outside the generous ambit of reasonable disagreement.

The claimant brought a whistleblowing detriment claim under the Employment Rights Act 1996, alleging that he was denied further ad hoc work after protected disclosures in emails concerning health and safety.

After a pre-hearing review and case-management discussion, he sought to amend his ET1 to rely on two further alleged protected disclosures: unfair shift allocation and delay in investigating a bullying grievance. Employment Judge Lewis at Watford refused permission. She found that the amendment introduced new allegations, was made after an unexplained delay, and would cause material prejudice and delay to the respondent.

The claimant appealed against that refusal. The central issue was whether the Employment Judge had erred in exercising her discretion to refuse the amendment.

1. Appeal dismissed. The Employment Judge’s refusal of permission to amend was a discretionary case-management decision well within the generous ambit of her discretion. It disclosed no error of law and was not perverse.

2. The proposed matters were not minor corrections or a relabelling of pleaded facts. They introduced new alleged protected disclosures and a different theory of why the respondent had acted against the claimant. Although they were connected with the original whistleblowing claim, they amounted to a new distinct head of complaint.

3. The judge did not have to treat the amendment as a wholly new, unconnected claim and determine whether the statutory time limit should be extended. She was nevertheless entitled, under Selkent Bus Co Ltd v Moore [1996] ICR 586, to use the primary limitation period as a yardstick for the claimant’s delay and to consider why the amendment had not been sought earlier.

4. She was entitled to find that the claimant knew the relevant facts before the pre-hearing review and case-management discussion, but gave no indication that he would seek amendment. She was also entitled to assess, using her knowledge of the case and tribunal litigation, that the respondent would need further investigation, an amended ET3 and more detailed witness evidence, and that the hearing might be delayed or extended.

5. The balance of hardship permissibly favoured refusal. The claimant retained his timely pleaded whistleblowing claim, whereas allowing the new allegations could require further interlocutory steps, preparation and relisting. A possible costs order did not remove that prejudice.

6. The Tribunal did not decide whether the proposed matters were qualifying disclosures. It observed only that the respondent’s contention that they were allegations rather than disclosures of information appeared to have substance.

• Employment Appeal Tribunal: dismissed the claimant’s appeal and upheld the Employment Tribunal’s refusal of permission to amend the ET1.
• Employment Tribunal at Watford: Employment Judge Lewis refused the proposed amendment in a decision sent to the parties on 22 February 2012. A review application was unsuccessful.