The Color Company Distribution Ltd v Blake (PRACTICE AND PROCEDURE - Amendment)

An Employment Tribunal must not treat a clarification of issues as permitting an unpleaded discrimination complaint without first deciding whether the complaint was already advanced in the claim form. If it was not, the Tribunal must consider whether to exercise its case-management discretion to permit an amendment.

Where that exercise has not been undertaken, the appropriate appellate course is ordinarily to remit the amendment application to the Tribunal. The Employment Appeal Tribunal should not itself determine whether the unpleaded claim may proceed.

The Claimant brought claims for unfair dismissal and race and age discrimination after his dismissal. His ET1 did not mention age discrimination in pay. In further particulars, however, he alleged that younger and less experienced employees received higher wages.

At an open preliminary hearing, the Employment Tribunal recorded a direct age-discrimination complaint concerning pay and ordered further particulars. The Respondent appealed, contending that this added an unpleaded claim without a proper amendment decision. The central issue was whether the Tribunal had merely clarified an existing claim or had allowed an amendment without considering the required discretion.

1. Appeal allowed. The Employment Tribunal erred by recording and permitting the age-discrimination pay complaint without properly addressing the prior question whether it was contained in the ET1.

2. The Claimant accepted that his ET1 did not mention pay discrimination based on age. The age-discrimination allegation in the further particulars therefore required consideration as a proposed amendment, rather than being treated simply as clarification of the pleaded claim.

3. The Tribunal had not considered whether to exercise its wide case-management discretion to allow that amendment, in accordance with the relevant guidance and authority, including Selkent Bus Company Ltd v Moore [1996] IRLR 661.

4. The Employment Appeal Tribunal declined the Respondent's invitation to rule that the pay claim could not proceed. Determining whether an amendment should be allowed was a matter for the Employment Tribunal, not for the appellate tribunal on the first occasion.

5. The case was remitted, on an expedited basis, to a differently constituted Tribunal to decide whether to permit the amendment. The different constitution was directed solely to avoid delay and protect the listed full merits hearing, not because of any concern about the original Tribunal's professionalism.

• Employment Appeal Tribunal: allowed the appeal and remitted the proposed age-discrimination pay amendment to a differently constituted Employment Tribunal: [2018] UKEAT 0161_18_0808.
• Employment Tribunal (London Central): at a preliminary hearing on 4 June 2018, recorded the pay allegation as part of the age-discrimination complaint without determining whether it was already pleaded or whether an amendment should be permitted.