Patka v. British Broadcasting Corporation & Anor

An Employment Tribunal may refuse a late amendment which introduces substantively new causes of action or materially different issues, even where the underlying factual allegations overlap with the pleaded claim. The Tribunal must apply the Selkent balance of relative injustice and hardship, taking account of the nature and timing of the amendment, time limits, delay, disruption and prejudice.

That a proposed claim may be in time is a factor of considerable weight, but it is not determinative. Where time depends on an unresolved issue such as a continuing act, the Tribunal may treat the factor as neutral. An appellate tribunal will not interfere with a permissible case-management discretion merely because it might have exercised that discretion differently.

The Claimant alleged race-discriminatory pay. His claim had been clarified at an earlier preliminary hearing as one of direct race discrimination based on particular pay decisions. Shortly before the listed merits hearing, after obtaining legal advice, he sought to amend the claim.

The proposed amendments added the outcome of an internal grievance, an alternative indirect race-discrimination claim, and an argument based on pay-system principles in Danfoss. The London Central Employment Tribunal allowed the grievance material as background but refused the other amendments, holding that they raised substantively new claims and issues whose late addition would unfairly prejudice the Respondents.

The Claimant appealed, principally contending that the amendments merely relabelled his existing case and that any indirect-discrimination claim was in time.

1. Appeal dismissed. The Employment Tribunal had made a permissible exercise of its case-management discretion in allowing the grievance material only as factual background. On its natural reading, the material did not advance a separate claim concerning the grievance decision. The Respondents had not objected to its inclusion on that limited basis.

2. The Tribunal was entitled to find that the proposed indirect-discrimination case was more than a relabelling of the direct-discrimination claim. Although the factual allegations overlapped and the earlier description of the case might have suggested indirect discrimination, the Claimant had expressly particularised and pursued his case as direct discrimination. The indirect claim would introduce different evidential and legal issues concerning pay practices and would substantially alter the focus from identified pay decisions.

3. The fact that an amendment may introduce an in-time claim is an important consideration in the Selkent balance. It was nevertheless open to the Tribunal to regard that factor as neutral because whether there was continuing conduct, rather than separate pay decisions, could only be determined at the final merits hearing. It was also entitled to give substantial weight to the disruption, delay and additional evidence required, particularly after the listed merits hearing had already been postponed.

4. The proposed Danfoss argument was not merely a clarification of the burden of proof. To the extent it sought to introduce a distinct pay-system and equal-value inquiry, it raised substantively new issues and the refusal to permit it was permissible. The refusal did not prevent the Claimant from relying on his statistical evidence to contend that the burden of proof shifted under section 136 of the Equality Act 2010.

5. The decision did not determine the merits of the proposed arguments. It determined only that no error of law justified appellate intervention in the Tribunal's discretionary amendment decision.

• Employment Appeal Tribunal: Appeal dismissed against the amendment decision of the London Central Employment Tribunal.
• Employment Tribunal (London Central): Employment Judge Baty allowed the proposed grievance material as background but refused amendments adding the proposed indirect-discrimination and Danfoss-based cases.