C v D (PRACTICE AND PROCEDURE)

An Employment Tribunal deciding an amendment application must give adequate reasons and conduct the necessary assessment of prejudice and hardship. It must engage with material evidence bearing on delay, including unchallenged medical evidence, and with the time remaining before trial.

A proposed amendment may amount to a relabelling of facts already pleaded rather than a wholly new claim. The Tribunal must explain any materially different treatment of related allegations. Claim forms and responses should identify the causes of action and provide a brief, clear account of the facts relevant to each claim; they should not ordinarily take the form of witness-statement narratives.

The Claimant brought claims of constructive unfair dismissal and discrimination on grounds of disability and sex. Her pleaded case and the Response were lengthy narrative documents which did not clearly identify the statutory claims or the facts relied upon for each.

Following further particulars and a draft list of issues, the Claimant sought amendments to add or clarify disability-harassment allegations and claims for reasonable adjustments under Equality Act 2010, section 20. Employment Judge Baron allowed only limited amendments. The Claimant appealed the refusals concerning nine harassment allegations, office horseplay, and the handling of her grievance.

The central issue was whether the Employment Judge had lawfully exercised the case-management discretion to refuse those amendments.

1. Appeal allowed. Although appellate intervention in a case-management decision requires the decision to be plainly wrong or outside the generous ambit within which reasonable decision-makers may differ, that standard was met.

2. The Employment Judge correctly stated the relevant principles but gave inadequate reasons for allowing a disability-harassment amendment in respect of only one of ten factual allegations. There was no cogent or rationally discernible basis for limiting the allegations by subject matter or time, particularly where some were said to arise in the same context. The refusal was therefore perverse.

3. The Judge also failed to evaluate material and apparently unchallenged medical evidence concerning the Claimant’s mental health and its possible effect on her ability to give instructions. He did not assess the significance of the interval between presentation of the claim and the proposed list of issues, the substantial time remaining before the listed final hearing, the absence of identified specific prejudice to the Respondent beyond meeting additional claims, and the prejudice to the Claimant if the allegations could not be pursued.

4. The refusals concerning reasonable adjustments were likewise inadequately reasoned. The Judge did not explain why an amendment concerning the positioning of the Claimant’s chair was allowed but a related allegation concerning aggressive horseplay was refused. In relation to the grievance, the relevant factual matters were already set out in the claim documents, so the proposed amendment could be a relabelling of existing facts. The Judge should have addressed the balance of hardship, the medical evidence and the reasons for delay.

5. The Tribunal was to hear submissions on disposal. No final remittal or other consequential order was recorded in the supplied judgment.

• Employment Appeal Tribunal: Allowed the Claimant’s appeal against Employment Judge Baron’s refusal to permit the contested amendments.
• Employment Tribunal: On 11 February 2019, with a clarificatory note dated 26 February 2019, permitted only limited amendments to the Claimant’s pleaded claims.