De Souza & Ors v Carillon Services Ltd

An Employment Tribunal considering amendment must apply the Selkent balancing exercise to all relevant circumstances. It must distinguish genuinely new factual allegations from clarification, elaboration, or a different legal label applied to facts already pleaded.

A proposed indirect-discrimination or harassment label may be permissible where the underlying factual allegation is already before the Tribunal. Amendments concerning events after the original claim require a distinct assessment. The Tribunal must consider their connection with the existing claim and cannot reject them by applying, without more, prejudice findings relating to earlier allegations.

Fifty-one employees brought race-discrimination claims against their employer. Following collective grievances and a change of solicitors, they sought to amend their claims to add factual allegations and additional legal characterisations, including indirect discrimination and harassment.

Employment Judge Harper allowed amendments that clarified existing claims but refused amendments treated as new factual allegations or new causes of action. The claimants appealed the refusals. The central issues were whether the Judge had correctly classified the amendments and properly applied the discretionary amendment principles.

1. Appeal allowed in part. The Employment Judge was entitled to refuse amendments introducing new factual allegations known when the original claims were presented. Her findings on the inadequate explanation for delay, the respondent's evidential prejudice, and the limited additional value of the claims disclosed no error of law. A completed but incomplete internal grievance investigation did not remove the respondent's difficulty in defending detailed new tribunal allegations.

2. However, the Judge misclassified some proposed amendments. Where pleaded facts about the annual-leave policy could support indirect discrimination, adding that legal characterisation did not necessarily introduce a new claim. The same applied to adding harassment as a label to factual allegations already permitted. This was consistent with [1996] ICR 836 and the clarification in [2014] ICR 209 that re-labelling facts already pleaded differs from introducing new factual allegations.

3. The Judge also erred by applying her general approach without separately evaluating allegations based on events after the original claims. She had to consider their close connection with the pleaded claims, their asserted continuing effect, and the distinct prejudice position. The relevant amendments were remitted for reconsideration under the Selkent principles as explained in [2014] ICR 209.

4. Several Estrocio and De Souza amendments were allowed outright as relabelling or clarification. Specified amendments were dismissed as genuinely new allegations; others were remitted to the Employment Judge for further consideration.

• Employment Appeal Tribunal: Allowed the appeal in part and remitted specified amendment applications.
• Employment Tribunal: Employment Judge Harper, by reasons dated 13 March 2013, allowed clarificatory amendments and refused amendments treated as new factual allegations or causes of action.