Smith v Pimlico Plumbers Ltd

An appellant may abandon grounds of appeal, but cannot use that process to advance a materially different ground for which permission was not granted. A late amendment requires the Employment Appeal Tribunal to apply the Khudados factors, including promptness, explanation for delay, prejudice, merits, and the efficient use of tribunal resources.

The prejudice caused by refusing an amendment carries less weight where a represented appellant could readily have sought permission earlier. A proposed ground which is inherently weak, or could not affect the appeal without an unpromising perversity challenge to factual findings, may properly be refused. A change from challenging justification under section 15 to alleging unfavourable treatment was a new ground and was refused.

The claimant, a plumbing and heating engineer, alleged that the respondent had constructively dismissed him because of disability after suspending work while seeking medical information about his fitness to work. The Employment Tribunal dismissed the disability-discrimination claim, finding reasonable and proper cause for the respondent’s actions and, alternatively, no unfavourable treatment or unlawful discrimination.

On appeal, the claimant withdrew or sought to recast substantial parts of his three grounds. On the second day of the hearing he applied to amend Ground 3, which had challenged justification under section 15 of the Equality Act 2010, so that it challenged the Tribunal’s conclusion on unfavourable treatment. The central issue was whether permission should be given to pursue the revised grounds at that late stage.

1. Appeal dismissed. Permission was refused to pursue Grounds 1 and 2 in their revised forms and to amend Ground 3. The parties accepted that the disability-discrimination appeal then stood or fell with the proposed amendment to Ground 3.

2. Ground 1, properly read, concerned whether the test for constructive dismissal under the Equality Act 2010 differed from that under the Employment Rights Act 1996. The passing reference to the implied term of mutual trust and confidence was not a freestanding ground. Pruning an appeal may leave extant grounds, but cannot create a distinct ground for which permission has not been given.

3. Applying Khudados v Leggate and others [2005] ICR 1013, the application was not made expeditiously. The claimant had known from July 2020 that the argument under Ground 3 was outside the pleaded grounds, yet first sought amendment on 14 December 2020. The respondent’s earlier inaction did not excuse failure to comply with paragraph 3.12 of the applicable Practice Direction.

4. The balance of prejudice did not justify amendment. Although refusal ended the claimant’s ability to pursue this appeal, he had been represented and could have avoided that consequence by applying timeously. The revised Grounds 1 and 2 would in any event require a weak perversity challenge to the Tribunal’s finding that the respondent had reasonable and proper cause.

5. The proposed Ground 3 was also inherently weak. The Tribunal’s finding that temporarily withholding work while the claimant was medically unfit, pending medical information or the relevant fitness-for-work period, was not unfavourable treatment disclosed no arguable legal error. The Supreme Court’s substantial agreement with the Court of Appeal reasoning in Williams v Trustees of Swansea University Pension and Assurance Scheme [2017] EWCA Civ 1008 meant that reliance on the Court of Appeal decision did not assist the claimant.

• Employment Appeal Tribunal: permission to pursue revised Grounds 1 and 2, and to amend Ground 3, was refused; the appeal against the Employment Tribunal’s disability-discrimination judgment was dismissed.
• Employment Tribunal: the disability-discrimination claim was dismissed. The Tribunal found no constructive dismissal and, alternatively, no direct discrimination, discrimination arising from disability, or actionable failure to make reasonable adjustments.