British Transport Police Authority v Hill & Ors

Where a claimant seeks to rely on extensive factual allegations not pleaded in the ET1 or an authorised amendment, further permission to amend is required. A direction to provide a Scott Schedule does not itself enlarge the pleaded case. In deciding an amendment application, an Employment Tribunal must apply the Selkent balancing exercise, including the nature of the amendment, any limitation issue, and the timing and consequences of the application. It must assess properly formulated proposed amendments rather than assume that allegations will already be in issue under another claim. An error in that premise may invalidate a consequential assessment of prejudice and require the discretionary decision to be remitted.

The claimants initially brought protected-disclosure detriment claims while still employed. After resigning, they obtained permission to add claims of automatic constructive unfair dismissal. Directions required an amended ET1 and Scott Schedules.

The revised Scott Schedule alleged a substantially wider history of disclosures and detriments than the pleaded case. The Employment Judge held that no further amendment was needed for constructive dismissal and allowed amendment of the pre-termination detriment claims on the basis that the same matters would already be before the Tribunal. The respondent appealed that case-management decision.

1. Appeal allowed. The Employment Judge erred in law by holding that the claimants could rely, for constructive dismissal, on the extensive allegations in the revised Scott Schedule without a further amendment.

2. The amended particulars confined the constructive-dismissal case to matters pleaded as the conduct causing the alleged breach of trust and confidence. A general assertion that failings had been raised on numerous occasions could not permit reliance on a much longer history of incidents dating from June 2013. The additional allegations therefore required an amendment application before they could be relied upon.

3. The error meant that the Judge did not exercise the discretionary amendment power for the constructive-dismissal claim and did not address the required principles in Selkent Bus Co Ltd v Moore [1996] ICR 836. The Judge also failed independently to apply those principles to the pre-termination detriment amendments. His conclusion that the respondent would suffer little prejudice depended on the erroneous premise that the Scott Schedule allegations were already in issue through constructive dismissal.

4. The appeal tribunal declined to remake the discretionary decision. Amendment of the constructive-dismissal claim required full argument and a fact-sensitive evaluation by the Tribunal applying the correct approach. The matter was remitted to a different Employment Judge because the error was fundamental and the previous interlocutory involvement did not create a countervailing advantage in retaining the same Judge.

• Employment Appeal Tribunal: Allowed the respondent's appeal and remitted the amendment issues to a different Employment Judge.
• Employment Tribunal, Cardiff: On 8 April 2015, held that no further amendment was required for constructive dismissal and permitted amendment of the pre-termination detriment claims by reference to the Scott Schedule.