Chief Constable of Essex Police v Kovacevic

An application to amend an Employment Tribunal claim must ordinarily be decided by reference to the actual proposed amendment. Where the amendment introduces claims outside the primary limitation period, the tribunal must not treat the statutory extension-of-time question as replacing the distinct amendment jurisdiction.

The tribunal must apply the Selkent balance of hardship exercise. It must identify and weigh the injustice and prejudice caused by granting the amendment against that caused by refusing it. Material matters may include notice, the precision and breadth of the proposed allegations, limitation, delay, non-compliance with orders, and the effect on the hearing. A decision made without the amendment’s terms and without that balancing exercise is erroneous in law.

The claimant, a detention officer dismissed for gross incompetence, presented a claim for unfair dismissal. The pleaded complaint concerned alleged procedural unfairness arising from the disclosure of CCTV evidence.

On the first day of a relisted final hearing, the claimant sought an adjournment and orally applied to add numerous claims of direct and indirect race discrimination. Employment Judge Brook allowed time for the race discrimination claims, although the proposed amendment had not been provided in writing and the employer had received no notice of it. The employer appealed.

The central issue was whether the Employment Judge could permit the proposed amendment and extend time without the amendment’s terms, and without applying the correct test for an amendment to existing proceedings.

1. Appeal allowed. The Employment Judge erred in entertaining and determining the amendment application without the actual proposed amendment. An amendment application must be considered in the light of its precise terms. Although a simple or limited request by an unrepresented litigant may sometimes be dealt with without written particulars, this professionally represented claimant should have been required to formulate the amendment in writing before its merits were considered.

2. The absence of a formulated amendment created a real risk that the later pleading would exceed what the judge understood had been sought. It also left the proceedings in an unsatisfactory state: the existing claim alleged unfair dismissal and sought re-engagement, while the order required only a schedule of particulars rather than an amendment identifying the additional claims and remedies.

3. The Employment Judge applied only the question whether it was just and equitable to extend time for race discrimination claims. That was insufficient. An application to introduce claims out of time by amendment required the separate balance of hardship exercise in Selkent Bus Company Ltd v Moore [1996] ICR 836. The judge had to identify and weigh the injustice and prejudice of granting and refusing the amendment.

4. The reasons did not show that this exercise had been carried out. Relevant potential prejudice to the employer included the absence of notice, the absence of written particulars, allegations spanning years and involving many people, the prospect that most or all claims were late, a substantial increase in hearing length, and the claimant’s procedural delay and non-compliance.

5. The Appeal Tribunal declined to decide the amendment application itself. It was for an Employment Judge, exercising the broad discretion on a properly formulated application, to decide it in the first instance. The question whether to permit an amendment was remitted to a different Employment Judge.

• Employment Appeal Tribunal: Allowed the employer’s appeal and remitted the amendment application to a different Employment Judge.
• Employment Tribunal: Employment Judge Brook, on 19 September 2012, allowed an extension of time for proposed race discrimination claims and directed further particulars, without recording a formulated amendment.