The Secretary of State for Health v Vaseer & Ors

An Employment Tribunal may permit a late amendment which introduces a distinct cause of action, but it must first identify its true nature. It must consider limitation, the explanation for delay, the factual relationship between the existing and proposed claims, and the relative injustice and hardship to the parties.

Pleadings serve an important function. Context may assist their construction, but an unpleaded case cannot be treated as having been advanced merely because it might arise from the same background facts.

Where the Tribunal materially misapprehends the pleaded case, its discretionary decision is flawed in law. An appellate tribunal may then exercise the discretion afresh and permit an amendment where the claims are factually closely related, substantial evidence would overlap, and the additional prejudice is not great.

The Claimant brought an unfair-dismissal claim following redundancy from NHS employment. Her ET1 alleged unfair selection for redundancy and a failure to offer suitable alternative employment under section 98 of the Employment Rights Act 1996.

After the original hearing was adjourned, she sought to add an alternative claim that her dismissal was automatically unfair under regulation 7(1) of TUPE because her function and colleagues had transferred to clinical commissioning groups while she had not.

Employment Judge Brown permitted the amendment on 8 January 2014. The Secretary of State appealed, contending that the Judge had wrongly treated the new TUPE case as a relabelling of facts already pleaded. The central issue was whether that error invalidated the amendment decision and, if so, whether the EAT should exercise the discretion afresh.

1. Appeal allowed, but amendment permitted afresh. The Employment Judge made a material error of law. She treated the original ET1 as alleging that the Claimant’s team had transferred, and treated the proposed TUPE claim as a different label for those pleaded facts. The ET1 made no such allegation. It advanced a conventional unfair-redundancy case under section 98 of the Employment Rights Act 1996.

2. Pleadings must state the case to be met. A tribunal may read them in their known context and should not be unduly technical, particularly where parties are unrepresented. But neither the tribunal nor the opposing party may be expected to identify a claim that the document does not refer to or sufficiently indicate. The Employment Judge’s misunderstanding affected her assessment of the amendment’s extent and the evidence it would require.

3. Applying Selkent Bus Company v Moore, [1996] IRLR 661, the EAT considered all circumstances. The amendment was late and was said to result from oversight. It introduced a new legal route, requiring proof of a relevant transfer, its character, and whether the dismissal reason was the transfer or a connected reason rather than redundancy.

4. Nevertheless, the old and new claims were factually closely related. The reason for dismissal, the proper comparison pool, and the treatment of the Claimant’s colleague would in any event require investigation. Much evidence would overlap. Without the amendment, the Tribunal could be forced artificially to investigate possible redundancy while excluding the asserted transfer explanation.

5. The additional disclosure, parties and hearing time caused prejudice, but not prejudice sufficient to outweigh deciding the closely connected dispute. The EAT therefore exercised the discretion itself and ordered that the amendment be allowed.

• Employment Appeal Tribunal: Allowed the appeal from Employment Judge Brown’s amendment decision because it rested on a material misunderstanding of the ET1. The EAT then exercised the discretion afresh and permitted the amendment: [2014] UKEAT 0096_14_1405.
• Employment Tribunal: Employment Judge Brown, sitting at East London, permitted the Claimant to amend her unfair-dismissal claim on 8 January 2014.