Dosanjh v Nottinghamshire Healthcare NHS Trust

When deciding whether it is just and equitable to permit a late amendment adding discrimination claims, an Employment Tribunal must take account of material showing that the claimant raised the substance of those complaints internally or with representatives at the relevant time. Overlooking such material may affect both the assessment of delay and the prejudice to the respondent, and can disclose an arguable error of law.

A deposit order may properly be made where a claim has little prospect of success, although it survives strike-out because it does not have no reasonable prospect of success.

The claimant, a clinical psychologist, appealed Employment Judge Hutchinson's refusal to permit amendments adding claims of race and disability discrimination. The Employment Judge treated the claims as new and substantially delayed, and concluded that it was not just and equitable to allow them.

The claimant also challenged a deposit order concerning her unamended unfair-dismissal claim and had advanced allegations of bias, misconduct and procedural irregularity. At this preliminary hearing, the claimant withdrew the allegations of bias and irregularity. The central issue was whether the amendment grounds disclosed reasonably arguable errors of law requiring a full appeal hearing.

1. The appeal was allowed in part. The allegations of bias, misconduct and procedural irregularity were dismissed on their withdrawal. The appeal was sent to a full hearing on the proposed race and disability discrimination amendments only.

2. The Employment Judge had refused the amendments because the discrimination claims were new and had been raised formally after a substantial delay. However, the material before the Employment Appeal Tribunal showed an arguable basis for saying that the claimant had raised race discrimination with her union representative and solicitors at the relevant time. It was therefore reasonably arguable that the Employment Judge had overlooked documentary material when finding that she had not raised the matter with her representatives.

3. That possible error was material. It could affect whether it was just and equitable to permit a late amendment. It could also affect the assessment of prejudice to the respondent, since prejudice from a late claim may be reduced if the substance of the complaint had previously been put to the employer. A full hearing would need to determine whether the claimant's internal grievances were relevant grievances for the race claim. Documents in the supplementary bundle similarly made the disability amendment reasonably arguable.

4. The challenge to the deposit order disclosed no error of law. An Employment Judge may make a deposit order where a case has little prospect of success. That threshold differs from strike-out, which requires no reasonable prospect of success. The Employment Judge had applied the correct test, considered the weaknesses in the unfair-dismissal claim, and acted within his discretion. The deposit order remained in force irrespective of the outcome of the amendment issues.

• Employment Appeal Tribunal: At a preliminary hearing, held that the race and disability amendment grounds were reasonably arguable and sent them to a full hearing. Dismissed the withdrawn irregularity grounds and the challenge to the deposit order.
• Employment Tribunal: Employment Judge Hutchinson refused permission to amend the claim to add race and disability discrimination claims and made a deposit order in respect of the unamended unfair-dismissal claim.