Parekh v London Borough Of Brent (Practice and Procedure : Amendment)

An ET1 must be construed as a whole. A claim for automatic unfair dismissal based on protected disclosure must nevertheless emerge from the claim form or its attachments with sufficient clarity. A vague reference to whistleblowing, without an asserted protected disclosure or causal link to dismissal, does not advance such a claim.

Permission to amend remains a discretionary case-management decision. The tribunal may consider the nature of the amendment, time limits, the timing and manner of the application, and fairness between the parties. Under rule 10 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004, an Employment Judge may identify and delimit the issues for the final hearing where this is a proper exercise of discretion.

The claimant, a school bursar, presented an ET1 alleging ordinary unfair dismissal and discrimination. The discrimination claims were later withdrawn. At a pre-hearing review, the Employment Judge held that the ET1 did not include a claim of automatic unfair dismissal for making a protected disclosure, refused permission to amend to add that claim, and recorded the remaining unfair-dismissal issues on a capability basis.

The claimant appealed all three decisions. He contended that the ET1, read with other material, already raised a protected-disclosure claim; alternatively, that refusal of the amendment was perverse. He also challenged the Employment Judge’s power and exercise of discretion in delimiting the issues for the full hearing.

1. Appeal dismissed. The Employment Judge made no error of law in construing the ET1 as advancing no claim under section 103A of the Employment Rights Act 1996. Applying Ali v Office of National Statistics [2005] IRLR 201 CA, the claim form had to be read as a whole. Its isolated and oblique reference to whistleblowing did not assert, expressly or by necessary inference, that the claimant had made a protected disclosure and had been dismissed for doing so.

2. An Employment Judge must be able to identify from the claim document and its attachments what claim is made and whether the tribunal has jurisdiction. The claimant could not rely on unspecified documents merely said to have been in the respondent’s possession or on the tribunal file.

3. The refusal of permission to amend was within the proper exercise of discretion. The Employment Judge applied the factors in Selkent Bus Company Limited v Moore [1996] ICR 836: the nature of the amendment, time limits, and the timing and manner of the application, together with hardship and fairness. It was open to him to regard the proposed protected-disclosure claim as a new claim rather than a relabelling of existing facts. The claimant had adequate time to clarify or amend his case but had not done so.

4. Rule 10(1) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 conferred broad power at a pre-hearing review to identify and delimit issues for a later full hearing. Although it was a serious step to record a capability reason where the employer bore the burden of proving the reason for dismissal, the direction was permissible on these facts. It followed discussion with both parties and was justified by the need to clarify an extensive and uncertain case.

5. The fresh-evidence application did not arise, since none of the grounds of appeal succeeded.

• Employment Appeal Tribunal: Appeal dismissed. The decisions of Employment Judge Bloch QC at the pre-hearing review of 15 December 2010 were upheld.
• Employment Tribunal: Held that the ET1 contained no automatic unfair-dismissal claim, refused amendment to add such a claim, and delimited the issues on the remaining ordinary unfair-dismissal claim.