Oliphant v Boots Management Services Ltd

An amendment which introduces distinct statutory discrimination claims is substantive, even where it relies on an existing factual narrative. It is not equivalent to correcting a formal error in the statutory provision relied upon.

Where the proposed claims are outside the statutory time limit, the Employment Tribunal may refuse amendment in its discretion. The absence of an explanation for delay, the need for further investigation and prejudice from materially expanded issues are relevant considerations. A party remains entitled to pursue the claims properly pleaded in the originating claim.

The Claimant's ET1 alleged detriment for protected disclosures and disability discrimination by failure to make reasonable adjustments. Her later case-management agenda and further particulars referred additionally to direct and indirect discrimination, discrimination arising from disability, harassment and victimisation under the Equality Act 2010.

At a pre-hearing review, the Employment Tribunal held that those were new claims, not further particulars of the ET1. It found them out of time and refused permission to amend. The Claimant appealed, contending that the later material applied different legal labels to the same events.

The central issue was whether the Employment Tribunal erred in law by characterising the additional matters as new, time-barred claims and refusing amendment.

1. Appeal dismissed. The Employment Judge made no error of law in holding that the ET1 advanced claims of detriment for protected disclosures and failure to make reasonable adjustments, but did not plead the additional claims subsequently advanced under sections 13, 15, 19, 26 and 27 of the Equality Act 2010.

2. The fact that the later claims drew on aspects of the same factual narrative did not make them mere particulars. They were new statutory claims. The Claimant's original reliance on section 103A of the Employment Rights Act 1996 was erroneous because she had not been dismissed. A correction to section 47B(1) could potentially have been a formal amendment, but the proposed Equality Act claims were not of that character.

3. The additional claims were brought outside the applicable time limit. No explanation was given for introducing them late, despite the earlier warning that claims not contained in the ET1 required amendment.

4. The Employment Judge was entitled to refuse amendment in the exercise of discretion. The new claims would expand the evidence required, including evidence about comparators and an allegedly discriminatory provision, criterion or practice. The proposed pleadings were also unclear and contradictory. The Claimant retained the right to proceed to a full hearing on the claims contained in the ET1.

• Employment Appeal Tribunal: Appeal dismissed. The Tribunal upheld the Employment Tribunal's refusal to permit amendment.
• Employment Tribunal: At a pre-hearing review on 27 November 2012, the Employment Judge held that the further particulars introduced new, time-barred claims and refused amendment.