Doughty v The Secretary Of State For Work And Pensions (Practice and Procedure : Amendment)

An Employment Tribunal considering an amendment must apply the Selkent balancing exercise. It must assess the nature of the amendment, limitation issues, and the timing and manner of the application, then balance the parties’ relative injustice and hardship.

An amendment raising a legally viable victimisation claim should not be refused because it overlaps with another viable claim or because the tribunal mistakenly treats the detriment as one suffered by a third party. A possible time bar affecting an earlier act does not dispose of an amendment where later alleged acts may themselves found the claim. An appellate tribunal may substitute its decision only where the lawful outcome was inevitable.

The claimant, a trade union branch secretary, brought a claim of detrimental treatment for trade union activities after his employer investigated a complaint made about his representation of a member in disability-discrimination proceedings.

He applied to amend his ET1 to add a victimisation claim under the Equality Act 2010. Employment Judge Sharp, sitting at Cardiff, refused the application on 31 August 2012. She considered that no legal basis had been shown, that the claim was insufficiently distinct from the trade-union claim, that it appeared to belong to a third party, and that it could have been brought earlier.

The appeal concerned whether those reasons disclosed an error of law and, if so, whether the Employment Appeal Tribunal could itself grant permission to amend.

1. Appeal allowed. The Employment Judge’s refusal to permit the amendment was vitiated by errors of law. The proposed pleading plainly advanced a legally viable claim that the claimant himself had suffered victimisation. It was wrong to proceed on the basis that no legal foundation had been identified or that the claim belonged to a third party.

2. The overlap between the proposed victimisation claim and the existing claim for detrimental treatment for trade union activities was not a reason to refuse amendment. They were separate viable claims. Their close factual connection reduced, rather than increased, any prejudice to the respondent, while the statutory tests were materially different.

3. The limitation reasoning was also flawed. A complaint confined to the manager’s act on 6 March 2012 would have been out of time, even if the claimant learned of it later. But the proposed claim and agreed issues also encompassed the subsequent investigation, notification and interview. The Tribunal had to consider whether those later matters were further acts of victimisation. The time point therefore provided no independent basis for refusal.

4. Applying the Selkent principles, the amendment introduced a new claim but was closely connected with the existing factual allegations. The claimant acted promptly after learning of the complaint and investigation, presenting his original claim shortly afterwards and seeking amendment within two months. These matters, together with the limited prejudice to the respondent, meant that only one lawful outcome was reasonably possible.

5. Under Jafri v Lincoln College [2014] EWCA Civ 449, the Employment Appeal Tribunal could substitute its own decision because no further factual assessment was required and the amendment would inevitably have been granted. Permission to amend was granted. The case was returned to the Employment Tribunal for further case management.

• Employment Appeal Tribunal: Allowed the claimant’s appeal, set aside the refusal of permission to amend, granted the amendment, and returned the matter to the Employment Tribunal for further case management.
• Employment Tribunal at Cardiff: On 31 August 2012, Employment Judge Sharp refused permission to amend the ET1 to add a victimisation claim under the Equality Act 2010.