Pruzhanskaya v International Trade & Exhibitors (JV) Ltd

An amendment to a timely unfair-dismissal complaint which advances protected disclosure as the sole or principal reason for dismissal does not introduce a separate complaint subject to a fresh limitation period. Section 103A is an aspect of the single statutory right not to be unfairly dismissed under Part X of the Employment Rights Act 1996.

On an amendment application, the Tribunal must apply the Selkent approach. It must consider the nature and timing of the amendment, any genuinely applicable time limit, and balance the injustice and hardship to both parties. Brief reasons may suffice, but they must reveal that balancing exercise. A finding of prejudice to the respondent alone will not ordinarily be enough.

The Claimant presented a timely claim for unfair dismissal following dismissal for redundancy, together with maternity-discrimination allegations. She later sought to amend her particulars to add an allegation that she had lost a promotion after maternity leave and to contend that the principal reason for her dismissal was her protected disclosures.

The Employment Judge refused both amendments. He treated the protected-disclosure allegation as a significant new issue brought considerably out of time, and referred to prejudice to the Respondent arising from further disclosure. The Claimant appealed. The central issues were whether the protected-disclosure allegation was a new time-barred complaint and whether the Judge had lawfully exercised the discretion to refuse amendment.

1. Appeal allowed. The refusal of the promotion-related amendment was erroneous. The original particulars had already alleged the relevant loss of promotion. The Employment Judge therefore proceeded on a flawed basis in treating it as materially new and in assessing evidential prejudice.

2. The proposed protected-disclosure allegation raised a substantial new issue concerning the reason for dismissal. However, it did not create a separate unfair-dismissal complaint outside time. Section 103A of the Employment Rights Act 1996 is a form of unfair dismissal within the single composite right enforced under section 111. A claimant with a timely unfair-dismissal claim may advance protected disclosure as a further alleged reason for that dismissal without attracting a distinct limitation period.

3. The Employment Judge was entitled to examine whether the existing pleading already encompassed protected disclosures. That was not an impermissible merits determination. It was relevant both to the Claimant’s submission and to the discretionary amendment decision.

4. The reasons for refusing the protected-disclosure amendment were nevertheless inadequate. The Judge identified potential prejudice to the Respondent, but did not assess the resulting prejudice to the Claimant, her explanation for seeking amendment, or how any time-limit consideration entered the required balance of injustice and hardship under Selkent Bus Co Ltd v Moore, [1996] ICR 836. If the Judge treated a limitation issue as material, he applied the wrong premise; if he did not, his reasoning failed to disclose the legal principle applied.

5. Both amendment applications were remitted for reconsideration afresh by a different Employment Judge.

• Employment Appeal Tribunal: allowed the Claimant’s appeal and remitted both amendment applications for fresh determination by a different Employment Judge.
• Employment Tribunal: Employment Judge Smail, by an order dated 17 October 2017, partly refused permission to amend the particulars of claim.