Makauskiene v Rentokil Initial Facilities Services (UK) Ltd

When deciding an amendment application, an Employment Tribunal must apply the Selkent balance to each proposed claim. An existing, timely unfair-dismissal claim requires separate consideration where the amendment adds reliance on Employment Rights Act 1996 section 103A to facts already pleaded. Where the alleged disclosure and dismissal are already in issue, permission should be granted if the amendment causes little additional prejudice.

A distinct and substantially late claim for detriment for protected disclosure may nevertheless be refused. A pleading which states only that an employee was ill-treated and complained does not clearly allege that the treatment was because of the complaint.

The claimant had brought claims for unfair dismissal and race discrimination following her dismissal after contacting the respondent’s client. Her claim form incorporated a chronology referring to complaints and to the contact with the client.

She later sought to amend to plead protected-disclosure detriment and automatic unfair dismissal under section 103A of the Employment Rights Act 1996. The Employment Judge refused both amendments and, on reconsideration, confirmed the decision. The claimant appealed.

The central issue was whether the Employment Judge had lawfully applied the amendment discretion to the section 103A unfair-dismissal claim and to the separate detriment claim.

1. Appeal allowed in part. The Employment Judge erred in failing in the original reasons to give separate consideration to the proposed section 103A claim. It was an amendment to an existing unfair-dismissal claim, brought in time under section 111 of the Employment Rights Act 1996, rather than a wholly new free-standing claim.

2. The pleaded chronology already included the relevant alleged disclosures and the dismissal. The respondent had expressly connected the dismissal with the email to its client. The reason for dismissal would in any event have been an issue at the hearing. Following the approach in New Star Asset Management Holdings v Evershed, the amendment would not materially increase the evidence required. On a correct application of the Selkent principles, permission to amend the unfair-dismissal claim was inevitable. The Tribunal granted permission to rely on section 103A in respect of the alleged disclosures on 3 and 12 August 2012, identified as items 32 and 33 of the amendment application.

3. The refusal of permission to add the wider protected-disclosure detriment claim disclosed no error of law. That claim would turn historic grievances into alleged protected disclosures and historic events into alleged detriments. It was substantially out of time, made late after detailed identification of issues, and would significantly enlarge the case. The Employment Judge was entitled to balance those matters under the Selkent principles.

4. The Employment Judge was also entitled to attach importance to the absence in the original pleading of a causal link between complaint and ill-treatment. The reasoning in The Housing Corporation v Bryant was not confined to victimisation claims. The Judge’s use of “prejudice” properly encompassed the required balance of relative injustice and hardship.

• Employment Appeal Tribunal: Allowed the appeal in part and granted the section 103A amendment; otherwise dismissed the appeal.
• Employment Tribunal, East London Hearing Centre: Employment Judge Goodrich refused permission to amend and, on reconsideration, confirmed that refusal. The written reasons were dated 30 September 2013.