Canavan v St Edmund Campion Catholic School (Victimisation Discrimination: Detriment)

In a protected-disclosure detriment claim, time runs from the alleged detriment, not from the protected disclosure relied upon. An Employment Tribunal considering a late amendment retains a broad discretion. It must consider the nature of the proposed amendment, time limits, delay, and the relative injustice and hardship to the parties.

Where a claimant relies on a series of similar acts under section 48(3) of the Employment Rights Act 1996, there must be a relevant connection between acts inside and outside the primary limitation period. Whether that connection exists is ordinarily fact-sensitive. An interlocutory decision which fails to address a properly raised series issue may require reconsideration.

The claimant appealed interlocutory decisions made at a pre-hearing review. Her original claim alleged detriments for protected disclosures. She later supplied further information and amended particulars identifying additional disclosures, detriments and allegations relating to trade union activities.

The Employment Judge allowed many allegations to proceed but refused most proposed amendments. The claimant challenged, among other matters, the treatment of limitation, whether certain allegations were new claims, whether allegations formed a series of similar acts, and the refusal to add a trade-union detriment case.

The central issues were whether the Employment Judge had lawfully exercised the amendment discretion and whether she had failed to address the statutory series-of-acts issue.

1. Appeal allowed in part. The appeal was dismissed except as to paragraph 8 and paragraphs 14, 23, 26, 29 and 32 of the amended particulars. Those matters were remitted for reconsideration of the outstanding interlocutory issues.

2. The court accepted the principle in Miklaszewicz v Stolt Offshore Ltd, [2002] IRLR 344: in a protected-disclosure case, limitation is directed to the alleged dismissal or detriment, rather than the date of the disclosure. The Employment Judge’s possible error in treating the additional disclosure to Mr McCormack as late did not vitiate her decision. She had separately exercised her discretion concerning the detriments said to flow from it, and that discretionary decision was open to her.

3. The Employment Judge was entitled to treat most challenged allegations as new and late complaints, rather than merely evidence supporting existing allegations. Applying the amendment principles in Selkent v Moore, [1996] ICR 836, the EAT could intervene only for legal error or perversity. It found neither in the refusals concerning the further protected-disclosure allegations, the post-return-to-work allegations, or the proposed trade-union detriment case.

4. However, the Employment Judge did not address the claimant’s contention that five specified allegations formed a series of similar acts under section 48(3) of the Employment Rights Act 1996. Under Arthur v London Eastern Railways Ltd, [2007] ICR 193, there must be a relevant factual connection between acts within the three-month period and earlier acts. The issue ordinarily requires consideration of all the circumstances. On these allegations, the argument could not be rejected without addressing it.

5. The exclusion of paragraph 8 was unreasoned and could not stand. Its allegations were capable of being further description of the existing claim.

• Employment Appeal Tribunal: Appeal allowed in part. The EAT remitted paragraph 8 and paragraphs 14, 23, 26, 29 and 32 of the amended particulars for reconsideration.
• Employment Tribunal, Birmingham: Employment Judge Dean made interlocutory orders after a pre-hearing review, in a judgment sent to the parties on 15 August 2012. Most disputed amendments were refused, although a number of allegations in the further-information document were permitted to proceed.