Conteh v First Security Guards Ltd (Practice and Procedure : Amendment)

An Employment Tribunal considering an amendment application must exercise its discretion by considering all the circumstances and balancing the respective injustice and hardship of allowing or refusing it. The Selkent factors, including the nature of the amendment, limitation and the timing and manner of the application, guide that overall evaluative judgment; they are not a tick-box exercise.

The fact that the added claim would be out of time is relevant but not conclusive. Its weight depends on the circumstances, including whether the amendment is closely connected with the pleaded case or merely relabels existing facts. A tribunal errs in law if it treats the application solely as an attempt to bring an out-of-time claim and fails to assess the proposed amendment in the round.

The claimant, who had brought a timely unfair-dismissal claim, sought to amend his ET1 to add complaints of detriment and dismissal for making protected disclosures under the Employment Rights Act 1996. The proposed claims were outside the ordinary three-month period.

The Employment Tribunal at London (Central) refused the amendment. Its reasoning addressed whether it had been reasonably practicable to present the protected-disclosure complaints in time. A reconsideration did not vary that decision.

On appeal, the central issue was whether the Employment Tribunal had applied the correct approach to an amendment application, in particular the guidance in Selkent Bus Co Ltd v Moore [1996] ICR 836.

1. Appeal allowed. The Employment Tribunal erred in law by failing to apply the required approach to the amendment application.

2. Under Rule 29 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013, the Tribunal had a broad case-management power that included permitting an amendment. The discretion had to be exercised in accordance with the guidance in Selkent Bus Co Ltd v Moore [1996] ICR 836: it required consideration of all the circumstances and a balance of the injustice and hardship on each side.

3. The Employment Judge had considered only the limitation issue and whether it was reasonably practicable to bring the proposed protected-disclosure claims within three months. That was a relevant consideration, but it was not determinative. The Judge did not address the nature of the amendment or assess the extent to which it was factually and legally connected with the existing unfair-dismissal claim.

4. The Court of Appeal’s explanation in Abercrombie and Ors v Aga Rangemaster Ltd [2014] ICR 209 confirmed that the guidance does not require formal classification or a tick-box exercise. The material inquiry includes whether the amendment would introduce substantially different factual and legal issues. An expired time limit may carry little weight where a new formulation is closely connected with the pleaded facts, but may carry greater weight where a wholly different claim is introduced.

5. The Appeal Tribunal did not itself grant the amendment. The Employment Tribunal was better placed to assess the evidence, the proposed amendment and any prejudice to the respondent. The issue was remitted to a differently constituted Employment Tribunal for reconsideration in accordance with the correct approach.

• Employment Appeal Tribunal: allowed the claimant’s appeal and remitted the amendment application to a differently constituted Employment Tribunal.
• Employment Tribunal, London (Central): on 3 March 2016 refused permission to amend the claim to add protected-disclosure complaints.
• Employment Tribunal reconsideration: Employment Judge Davidson declined to vary or revoke the refusal on 30 March 2016.