Charles v Kuehne & Nagel Ltd (Practice and Procedure : Amendment)

An Employment Tribunal considering an amendment must first identify whether it merely relabels substantially the same facts or introduces genuinely new claims. It must then exercise its wide discretion by considering all the circumstances and balancing the injustice and hardship of permission or refusal.

The public importance of eliminating discrimination is a relevant legal policy, but it does not itself require permission for late, unconnected discrimination claims. The Tribunal may refuse amendments where the earlier allegations have no clear causal connection with the extant claim, are substantially out of time, lack an explanation for delay, and would cause material prejudice. A refusal must nevertheless give adequate reasons for each proposed claim that is closely connected with the redundancy process.

The claimant’s ET1 alleged unfair selection for redundancy and direct disability discrimination. His later particulars sought to add claims concerning treatment from his return to work after a road accident, including reasonable adjustments, harassment, indirect discrimination and discrimination arising from disability.

At a pre-hearing review, the Employment Tribunal treated most of the proposed additions as fresh claims. It refused those concerning earlier events but permitted amendments closely connected with redundancy selection, alternative employment and dismissal. The claimant appealed, principally contending that European equality policy required the broader amendments to be allowed. He also challenged the refusal of two claims concerning the redundancy scoring process.

1. Appeal allowed in part. The Employment Tribunal made no error of law in refusing the proposed amendments concerning earlier treatment. It was entitled to conclude that they were genuinely new claims, rather than alternative legal labels attached to substantially the same facts.

2. The Tribunal was not required to use the taxonomy advanced from Harvey. Having identified new claims, it properly applied the discretionary approach in Selkent Bus Company Ltd t/a Stagecoach v Moore [1996] ICR 836: consider all the circumstances and balance the injustice and hardship of allowing or refusing amendment. The lack of a clear causal link to the redundancy selection, significant lateness, absence of an explanation for delay, and the increased cost and witness burden upon the respondent were proper considerations.

3. The Tribunal had not excluded the policy of eradicating disability discrimination from its consideration. Courts should strive to identify and eliminate prohibited discrimination, but that policy did not make it just and equitable to permit otherwise unsuitable late claims. Nor did refusal make reliance on the asserted European-derived right difficult or effectively impossible. The claimant retained disability-related claims concerning redundancy and dismissal.

4. The Employment Tribunal’s decision that the balance of prejudice favoured refusal was within its broad case-management discretion. An appellate court will rarely interfere absent a legal misdirection, error of principle, or a plainly wrong decision.

5. However, the refusal of the proposed harassment and indirect-discrimination claims relating to redundancy scoring lacked developed reasons. The tenor of the decision was that claims linked to redundancy selection should be permitted. Those two claims were remitted to the Employment Judge for further explanation or reconsideration, initially at a case-management discussion.

• Employment Appeal Tribunal: Allowed the appeal only to the extent of remitting two inadequately reasoned refusals of amendment. The remaining challenge to the Employment Tribunal’s discretionary refusal was dismissed.
• Employment Tribunal: At a pre-hearing review on 18 January 2012, refused amendments introducing earlier disability-related allegations, but allowed amendments linked to redundancy selection, alternative employment and dismissal.