Dosanjh v Nottinghamshire Healthcare NHS Trust (Practice and Procedure : Amendment)

An appellate court may interfere with a discretionary employment tribunal case-management decision only where the discretion was exercised under an error of law or factual misapprehension, by disregarding principle, by taking account of irrelevant matters or omitting relevant matters, or outside the generous ambit of reasonable disagreement.

In deciding whether to permit a late discrimination amendment, the tribunal must accurately consider whether discrimination was raised previously, relevant evidence bearing on delay, and the comparative prejudice. A material factual error or failure to address a substantial explanation for delay vitiates the exercise of discretion.

The claimant had brought claims for unfair and wrongful dismissal. About 18 months after her dismissal, she sought to amend to add claims of disability and race discrimination.

The Employment Judge refused permission, principally because the proposed claims were new, late and prejudicial to the respondent. The claimant appealed, contending that the Judge had wrongly found that discrimination had never been raised during the disciplinary process, had overlooked emails concerning race discrimination, and had failed to address evidence of ill health explaining delay.

The central issue was whether those matters disclosed an error of law in the discretionary refusal of permission to amend.

1. Appeal allowed. The refusal of permission to amend could not stand. The application was remitted for reconsideration entirely afresh by a differently constituted Employment Tribunal.

2. The governing appellate approach was that stated in Noorani v Merseyside TEC Limited [1989] IRLR 184. A discretionary case-management decision is not overturned merely because an appellate court might have decided differently. Intervention is justified where the discretion was exercised on an error of law or factual misapprehension, through disregard of principle, by considering irrelevant matters or failing to consider relevant matters, or outside the generous ambit of reasonable disagreement.

3. The Employment Judge had materially misapprehended the facts in stating that discrimination had never been raised during the disciplinary process. Disability discrimination had been raised at the internal appeal stage. That could be significant under the Selkent principles because it could affect both the relationship between the proposed amendment and the existing unfair-dismissal proceedings and the parties’ respective prejudice.

4. The Judge also failed to take account of emails in which the claimant told her union that she wished to claim race discrimination. Those emails materially qualified the inference that no discrimination allegation could have been placed before her former solicitors.

5. Further, the conclusion that there was no reason for delay failed to evaluate, or give reasons for rejecting, substantial material concerning the claimant’s ill health. This was a significant feature relevant to the just and equitable extension of time and to amendment.

6. On remittal, the claimant should provide clear consolidated particulars and a witness statement explaining delay and prejudice. It is not necessarily an error of law to omit separate reasons for every allegation, but disability and race amendments, and allegations connected with or extraneous to unfair dismissal, may require different considerations.

• Employment Appeal Tribunal: Allowed the claimant’s appeal and remitted the amendment application for fresh reconsideration.
• Employment Tribunal, Nottingham: Employment Judge Hutchinson refused permission on 1 February 2012 to amend unfair and wrongful dismissal claims to add disability and race discrimination claims.