British Gas Services Ltd v Basra

An Employment Tribunal must not initiate an unrequested amendment for an unrepresented claimant. It may explain issues and ask whether an amendment is sought, but it must remain, and be seen to remain, impartial.

Before granting permission to amend, particularly shortly before a final hearing and where new claims are out of time, the Tribunal must have a properly formulated and particularised amendment. It must balance the parties’ relative injustice and hardship. Material considerations include the nature of the new claim, delay and its explanation, adjournment, additional cost, hearing time and evidential prejudice.

Expert medical evidence is not generally required to establish disability under the Equality Act 2010. Clinical recognition is not required, and evidence from the claimant and GP may suffice.

The claimant, a former customer services adviser, presented claims for unfair dismissal and disability discrimination. At a three-day final hearing, the Employment Tribunal treated passages in his witness statement as raising victimisation and further disability-discrimination claims. Although he had not applied to amend, the Tribunal allowed amendments, ordered further medical evidence on disability, and relisted the matter for five days.

The employer appealed from the Leicester Employment Tribunal’s order of 3 March 2014. It contended that the Tribunal had improperly initiated unparticularised amendments, failed to apply the correct hardship balance, and unnecessarily adjourned the final hearing for further medical evidence.

The central issues were the permissible assistance to an unrepresented party, the correct approach to late amendments, and whether further expert evidence was needed on disability.

1. Appeal allowed. The Employment Tribunal exceeded permissible assistance to a litigant in person by initiating amendments which the claimant had not sought. A tribunal may assist a party to formulate a case and may ask whether an amendment is wished, but it should not advise upon or initiate an amendment. Doing so risks both actual and apparent partiality.

2. The amendments should not have been allowed without a formulated and sufficiently particularised pleading. That requirement enables the respondent to know the case to meet and make informed submissions. The Tribunal had instead granted permission in a vacuum and rejected the employer’s request for particulars before deciding the application.

3. In exercising the amendment discretion, the Tribunal was required to balance relative injustice and hardship in all the circumstances. The purported victimisation claim was wholly new. The relevant facts had long been known to the claimant, yet no explanation for the late amendment was obtained. The Tribunal also failed to give adequate weight to the necessary adjournment, increased hearing length, additional witnesses, expense, business disruption and delay. It wrongly treated the employer as bearing responsibility for not identifying claims absent from the ET1.

4. The direction for further expert medical evidence was unnecessary. Under section 6 of the Equality Act 2010, impairment is not qualified by a requirement for clinical recognition. Expert evidence on impairment is generally neither required nor desirable because of delay and cost. The claimant’s evidence, GP material and impact statement could provide sufficient evidence for the Tribunal to determine disability.

5. The case was to proceed on the claims already properly permitted. The claimant was directed to provide particulars of the earlier amendment by 10 November 2014. He remained free to make a fresh application to amend.

• Employment Appeal Tribunal: Allowed the employer’s appeal and reversed the late, unparticularised amendments and associated case-management approach: [2014] UKEAT 194_14_1310.
• Employment Tribunal (Leicester): On 3 March 2014, allowed amendments for victimisation and further disability-discrimination claims, directed further medical evidence, and relisted the final hearing for five days.