Gillett v Bridge 86 Ltd

An Employment Tribunal may consider the merits of a proposed amendment, including whether the claim has reasonable prospects of success. It is not confined to rejecting a legally hopeless claim. However, where an amendment application is made within the applicable time limit, an assessment that the claim is merely weak cannot ordinarily justify refusal if a fresh in-time claim could not be struck out.

Timeliness carries considerable weight in the Selkent balance of hardship and injustice. A respondent suffers no material additional prejudice merely because an in-time claim is added by amendment rather than presented separately. A claimant suffers substantive prejudice if prevented from pursuing a distinct statutory claim.

The claimant was dismissed after less than two years’ service. Her unrepresented ET1 advanced unfair-dismissal and disability-discrimination claims. After taking advice, she applied within three months of dismissal to amend the claim to allege automatic unfair dismissal and detriments for making protected disclosures under the Employment Rights Act 1996.

Employment Judge Wallis refused the amendment. The Judge held that it was a new cause of action, considered it weak, and concluded that the balance of hardship and injustice favoured the respondent. The claimant appealed. The central issue was whether those matters justified refusal of an in-time amendment application.

1. Appeal allowed. The Employment Tribunal exercised its discretion wrongly. Permission to amend was granted.

2. The proposed protected-disclosure claim was not a mere relabelling of the existing unfair-dismissal claim. It depended on critical new facts concerning statements allegedly made in September 2015. The Employment Judge was therefore entitled to treat it as a new claim for the purposes of the amendment exercise.

3. Applying Selkent Bus Co Ltd v Moore, [1996] ICR 836, an Employment Tribunal may consider the merits of a proposed amendment. It may consider whether the claim has reasonable prospects of success, and it is not barred as a matter of principle from taking account of its assessment of the merits. The court respectfully disagreed with any reading of Woodhouse v Hampshire Hospitals NHS Trust, [UK]EAT/0132/12, that would limit consideration of merits to an obviously hopeless amendment.

4. Nevertheless, a pessimistic assessment falling short of a conclusion that the proposed claim has no reasonable prospects of success could not support refusal of an in-time amendment. A claimant could otherwise issue a fresh in-time claim, which could not be struck out, although a deposit order might be available under Rule 39.

5. The application’s timeliness was a factor of considerable weight in the balance of hardship and injustice. The respondent would have faced the same claim had it been presented separately on the day of the amendment application. Conversely, preventing the claimant from advancing the distinct whistleblowing claims caused substantive prejudice, notwithstanding that her disability claims could continue.

6. The proposed claim was not found to lack reasonable prospects of success. The balance therefore firmly favoured the claimant, and the circumstances compelled permission to amend.

• Employment Appeal Tribunal: allowed the claimant’s appeal and granted permission to amend the claim.
• Employment Tribunal: Employment Judge Wallis, by decision dated 14 December 2016, refused permission to amend to add protected-disclosure claims.