Wade v CT Plus Community Interest Company (Practice and Procedure : Amendment)

An Employment Tribunal may refuse an amendment which adds a disability-discrimination complaint to an unfair-dismissal claim where it introduces a new cause of action founded on materially different facts and requires fresh evidence. The Selkent balancing exercise permits the Tribunal to weigh that prejudice against the claimant’s position.

The statutory unfair-dismissal inquiry does not impose a duty to create a new job for an employee dismissed for ill-health incapability. That position differs from a reasonable-adjustments claim, in which creating a role may exceptionally be required. An appeal against factual findings on the fairness of dismissal fails absent an error of law; the EAT will neither re-try the facts nor substitute its own assessment.

The claimant, a bus driver, was absent from work because of an eye condition and was dismissed on ill-health capability grounds after medical advice gave no timescale for recovery and the employer found no suitable alternative work.

His ET1 alleged unfair dismissal only. Before the substantive hearing, he sought to amend it to add disability discrimination by failure to make reasonable adjustments. Employment Judge McLaren refused the amendment and later dismissed the unfair-dismissal complaint. The claimant appealed both decisions.

The central issues were whether the proposed amendment was merely a re-labelling of the existing claim and whether the Tribunal had erred in finding the dismissal fair despite the lengthy interval between absence-management meetings.

1. Both appeals were dismissed. The Employment Judge was entitled to refuse permission to amend the ET1 and to find the dismissal fair.

2. The proposed reasonable-adjustments complaint was not a mere re-labelling of the unfair-dismissal claim. Although the ET1 referred to the claimant’s eye condition and to alternative-employment training, it did not allege disability discrimination or assert that alternative work was available at dismissal. The amendment advanced materially different facts: transfer to a passenger-assistant role or the creation of an unspecified role.

3. Applying the Selkent guidelines, the Judge was entitled to treat the amendment as a new cause of action. It would require fresh evidence about whether a passenger-assistant post was available and whether a role should have been created. The balance of prejudice was therefore capable of favouring the respondent.

4. The distinction between the two causes of action was legally material. For unfair-dismissal purposes, Employment Rights Act 1996, section 98(4), did not require the employer to create a job for an employee dismissed through ill-health incapability. A reasonable-adjustments claim could exceptionally engage such a requirement. That distinction reinforced the conclusion that the proposed amendment raised a different factual and legal case.

5. On unfair dismissal, the Tribunal was entitled to find that the delay in meetings was not unfair because a meaningful prognosis had not become available. It was also entitled to find that no alternative role was available at the effective date of termination. The EAT identified no error of law and would not re-try those findings or substitute its own view.

• Employment Appeal Tribunal: dismissed the claimant’s appeals in [2014] UKEAT 0510_13_0404.
• Employment Tribunal: Employment Judge McLaren refused permission to amend the ET1 at the hearing on 23 November 2012, with reasons dated 6 March 2013; she dismissed the unfair-dismissal complaint by judgment dated 13 December 2012, with reasons dated 17 January 2013.