Roberts v Chief Constable of Hampshire and Isle of Wight (Rev 1) (Practice and Procedure: Amendment)

An Employment Tribunal considering an amendment application must apply the Selkent principles by considering all relevant circumstances and balancing the injustice and hardship of allowing or refusing the amendment. The nature of the amendment, time limits, and the timing and manner of the application are relevant considerations, not separate or exhaustive requirements.

Where an amendment adds a potentially time-barred discrimination claim, the Tribunal must decide whether it is in time and, if necessary, whether it is just and equitable to extend time. A failure to address the balance of hardship, the time-limit issue, the explanation for delay, and prejudice to the respondent is an error of law.

The claimant, a police officer, brought disability-discrimination proceedings after she was unsuccessful in applying for a trainer post. Her ET1 pleaded disability discrimination. Subsequent particulars also asserted pregnancy and maternity discrimination and direct and indirect sex discrimination arising from the assessment of her operational experience.

At a preliminary hearing, the Employment Judge permitted amendments concerning disability discrimination but refused permission to add the pregnancy, maternity and sex-discrimination claims. The claimant appealed that refusal. The central issue was whether the Employment Judge had lawfully exercised the discretion to amend the claim.

1. Appeal allowed. The Employment Judge identified Selkent but did not apply its governing principle. There was no analysis of the relative injustice and hardship of allowing or refusing the proposed amendments.

2. The three matters identified in Selkent—the nature of the amendment, time limits, and the timing and manner of the application—inform the overarching assessment of what justice requires. They are not freestanding requirements. Although the proposed claims were new causes of action, they arose largely from the facts underpinning the disability claim already permitted to proceed. That feature required consideration.

3. The Employment Judge also failed to decide whether the new claims were in time. If they were outside the primary period, he had to consider whether it was just and equitable to extend time under section 120(3)(i) of the Equality Act 2010. As explained in Ali, that exercise was essentially the same as the balance-of-hardship assessment.

4. The Judge recorded the claimant’s explanation for the form’s limited content but did not evaluate it, accept or reject it, or make findings on prejudice to the respondent. Short reasons would have sufficed, but they had to address those material matters.

5. The Appeal Tribunal could not substitute its own decision because, applying Jafri and Burrell, it could not say that only one outcome was reasonably possible and the parties had not agreed to substitution. The application was remitted to a different Employment Judge. If pursued, the claimant should provide a skeleton argument and timely further and better particulars.

• Employment Appeal Tribunal: allowed the appeal against the refusal of permission to amend and remitted the amendment application to a different Employment Judge.
• Employment Tribunal: Employment Judge Cowling, by judgment dated 7 March 2014, allowed disability-discrimination amendments but refused amendments adding pregnancy, maternity and sex-discrimination claims.