Herry v Dudley Metropolitan Borough Council & Anor

An employment tribunal considering an amendment must apply the Selkent balance. It must consider all relevant circumstances, including the nature of the amendment, limitation, timing, delay, costs and the relative injustice and hardship of granting or refusing it.

Reasons for refusal must relate to the claim sought to be added. Where a proposed claim concerns a later failure or refusal, delay before the request giving rise to that alleged failure will not ordinarily be material without an explained connection. The tribunal must also give intelligible reasons for materially different treatment of comparable amendments.

The merits may be considered. Refusal causes no material injustice where the pleaded facts cannot bring the proposed claim within the statutory causes of action invoked.

The Claimant, a former teacher, brought a fourth Employment Tribunal claim alleging victimisation in connection with a failure to interview him for a teaching post. He sought to amend it to complain that the Respondent had failed or refused to remove an oral warning from his employment record after a request made in April 2016.

Employment Judge Woffenden refused the proposed second amendment. Although the claim was in time, the Judge treated the Claimant's delay since learning of the warning in June 2015 as material. The Judge allowed a fifth amendment concerning new matters.

The Claimant appealed. The central issues were whether the refusal was adequately reasoned and lawfully exercised under the amendment discretion, and whether the EAT should determine the amendment application itself.

1. Appeal allowed. The Employment Judge's refusal of the second amendment was set aside. The Judge correctly identified that the amendment advanced substantial new facts and causes of action with no discernible link to the existing claim. A claim being in time was relevant but not determinative under Selkent Bus Co Ltd v Moore [1996] ICR 836.

2. The alleged wrong in the amendment was the failure or refusal after the April 2016 request to remove the warning, rather than its original imposition or the Claimant's earlier knowledge of it. Having found that claim in time on that basis, the Employment Judge gave no adequate reason why delay from June 2015 to April 2016 was relevant. The evidence material to the proposed claim principally concerned the reasons for the later refusal.

3. That irrelevant factor was treated as the principal distinction between the second and fifth amendments. The relevant features of the two applications were otherwise materially indistinguishable. Read as a whole, the reasons did not explain why the second amendment failed while the fifth succeeded. They therefore did not meet the standard in Meek v City of Birmingham District Council [1987] IRLR 250.

4. The Respondent's alternative submission that the claim was premature under section 123(4) of the Equality Act 2010 was rejected. It was arguable but not clear that the claim was premature, given the deadline set for a response.

5. Exercising its own power under section 35 of the Employment Tribunals Act 1996, the EAT refused permission to amend. The proposed facts did not allege treatment because of disability, unwanted conduct related to disability with the required purpose or effect, or detriment because of a protected act. The Claimant could not supply those missing statutory ingredients in oral submissions. Although the application was prompt and in time, the proposed claims were obviously hopeless. Refusal therefore caused the Claimant no material injustice or hardship.

• Employment Appeal Tribunal: Allowed the appeal, set aside the Employment Judge's refusal of the second amendment, and itself refused permission to amend under section 35 of the Employment Tribunals Act 1996. [2018] UKEAT 0170_17_2802
• Employment Tribunal: Employment Judge Woffenden, by a judgment sent to the parties on 13 September 2016, refused permission for the Claimant to make the proposed second amendment to his fourth claim.