A B Conteh v First Security (Guards) Ltd

An Employment Tribunal considering an amendment must take account of all relevant circumstances and balance the relative injustice and hardship of granting or refusing it. The inquiry is practical rather than formal. It focuses on whether the proposed pleading merely re-labels existing facts or introduces substantially different factual and legal issues.

A proposed protected-disclosure claim may properly be treated as a new cause of action where it requires determination of the protected-disclosure gateway, including public interest and reasonable belief. Where that would require substantial further evidence from the respondent, the Tribunal may refuse the amendment after balancing prejudice under Employment Rights Act 1996.

The Claimant brought Employment Tribunal claims for ordinary unfair dismissal and race discrimination. His pleaded complaint concerning an alleged data-protection violation had been struck out as outside the Tribunal's jurisdiction.

He later sought to amend his claim to add protected-disclosure detriment and automatic unfair-dismissal claims under sections 47B and 103A of the Employment Rights Act 1996. An earlier refusal of permission to amend had been set aside on appeal and remitted. On remittal, Employment Judge Lewzey again refused permission, holding that the amendment introduced new causes of action and issues requiring substantial additional evidence.

The Claimant appealed. The central issue was whether the Tribunal had erred in exercising its discretion to refuse the amendment.

1. Appeal dismissed. The Employment Tribunal applied the correct approach to amendment applications and reached a conclusion open to it.

2. Under Rule 29, the Tribunal had a broad case-management discretion. The guidance in Selkent Bus Co Ltd v Moore, [1996] IRLR 661, required it to consider all relevant circumstances and balance the relative hardship and injustice. The characterisation of an amendment as a new cause of action was relevant but not determinative. The practical question was the extent to which the proposed claims would introduce different factual and legal inquiries.

3. The proposed claims were not merely a re-labelling of the pleaded unfair-dismissal and discrimination claims. They required determination of whether the Claimant had made a protected disclosure, whether it was in the public interest, and whether he reasonably believed that a legal obligation had been breached. Those matters formed the gateway to both the detriment and automatic-unfair-dismissal claims.

4. The Tribunal was entitled to find that those issues would require the Respondent to adduce substantial additional witness and documentary evidence. It had not made the unsupported assumption criticised in Evershed v New Star Asset Management, UKEAT/0249/09; it considered the particular claims proposed and the evidence they would require.

5. The Claimant could not avoid the time-limit issue by relying on a second early-conciliation certificate. Although the amendment application had been made at a relatively early stage, the Tribunal permissibly concluded that the balance of prejudice favoured refusal. That discretionary assessment was neither perverse nor affected by irrelevant considerations or a failure to consider relevant matters.

• Employment Appeal Tribunal — dismissed the Claimant's appeal against the refusal of permission to amend.
• London (Central) Employment Tribunal — Employment Judge Lewzey refused, on remittal, permission to add protected-disclosure claims.
• Employment Appeal Tribunal — Singh J allowed an earlier appeal against Employment Judge Stewart's refusal of permission to amend and remitted the matter for fresh consideration.
• London (Central) Employment Tribunal — Employment Judge Stewart had previously refused the amendment application.