Thomas v Samurai Incentives & Promotions Ltd (Practice and Procedure : Amendment)

When deciding an application to amend an employment claim, the tribunal must consider all relevant circumstances and balance the injustice and hardship of permitting the amendment against the injustice and hardship of refusing it. Categorising the amendment and considering limitation are relevant matters, but they do not replace that balancing exercise. A failure to carry out or explain that exercise is an error of law which vitiates the refusal of permission to amend.

The claimant presented an ET1 as a litigant in person. It referred to unpaid commission and alleged discriminatory treatment, but no discrimination box was ticked. Her representative subsequently confirmed that she advanced a sex discrimination claim and provided particulars identifying alleged sexual harassment.

At a pre-hearing review, the Employment Judge refused permission to amend the claim to raise sexual-harassment complaints. The claimant appealed, contending that the Judge had not applied the Selkent principles. The central issue was whether the refusal to amend was reached by applying the required balancing exercise.

1. Appeal allowed. The Employment Judge’s refusal of permission to amend was set aside and the amendment issue was remitted to a different Employment Judge.

2. The Judge considered the proposed amendment’s categorisation and the question of time limits. Those were relevant matters. However, the Reasons did not address the critical Selkent exercise of considering all relevant circumstances and balancing the injustice and hardship of allowing the amendment against the injustice and hardship of refusing it.

3. The omission could not be treated as implicit in the Reasons. It was fatal to the reasoning and therefore to the conclusion refusing amendment. The appeal was consequently allowed in accordance with the appellate approach described in Adams & Raynor.

4. The Employment Appeal Tribunal should not decide the amendment itself. It was to be determined afresh at first instance. Remittal to a different Employment Judge was appropriate to avoid a perception that the original Judge might repeat the same conclusion. The new Judge could consider afresh, including the proper categorisation of the proposed amendment.

• Employment Appeal Tribunal: Allowed the claimant’s appeal and remitted the amendment issue to a different Employment Judge.
• Employment Tribunal: At a pre-hearing review on 25 October 2012, Employment Judge Hill refused permission to amend the claim to raise sexual-harassment complaints.