Marrufo v Bournemouth Christchurch And Poole Council (PRACTICE AND PROCEDURE)

An Employment Tribunal's decision whether to permit an amendment is a discretionary case-management decision. The governing inquiry is the balance of injustice and hardship from allowing or refusing the amendment. The nature of the amendment, limitation, and the timing and manner of the application are relevant but non-exhaustive considerations.

A proposed claim being in time is not determinative. The Tribunal may consider its merits, the practical consequences for each party, delay, cost, prejudice from stale allegations, and whether the existing pleading already covers the matter. A party must formulate its claim clearly and make any written application for a case-management order apparent, complying with Rule 30. Unsolicited correspondence need not be treated as an amendment application.

The Claimant appealed against an Employment Judge's refusal, at an open preliminary hearing, to permit most of her proposed amendments to claims against her former employer.

Her original and amended ET1 advanced discrimination and related complaints. Following earlier case management, she produced a Scott schedule seeking to add or reformulate numerous allegations, including associative disability discrimination, instructions to discriminate, whistleblowing, victimisation, and claims arising from a reduction in sick pay. Some proposed complaints duplicated existing harassment claims; others were new, unclear, weak, or substantially out of time.

The appeal challenged the Tribunal's construction of the pleaded case, its refusal of the amendments, and its refusal to allow reliance on an email to the Claimant's MP as a protected act. The central issue was whether the Tribunal had erred in exercising its case-management discretion.

1. Appeal dismissed. The Employment Tribunal had acted within the wide ambit of its case-management discretion in refusing the disputed amendments while allowing three limited amendments.

2. The Claimant bore responsibility for formulating her claim. A claim cannot be changed without permission, and there is no entitlement to provide further amendments or particulars whenever a party wishes. Appellate interference is available only where the Tribunal considered an irrelevant matter, omitted a relevant matter, or reached a decision no reasonable Tribunal could reach.

3. The Tribunal correctly applied Selkent. The governing exercise was to balance the injustice and hardship of allowing and refusing the amendment. Its listed considerations were not exhaustive. The Tribunal could therefore consider the amendments' nature, limitation, timing and manner, their merits, the existing breadth of the claim, delay, cost, the Respondent's ability to answer stale allegations, and the practical consequences for both parties.

4. The fact that a proposed claim might have been in time if brought separately did not require its admission by amendment. Conversely, significant lateness was a powerful factor. The Tribunal was entitled to find that most proposed claims were out of time, inadequately particularised, or lacked an arguable basis.

5. The earlier case-management order properly treated the allegations concerning the treatment of colleague X as disability-related harassment rather than direct associative disability discrimination. Under section 212 of the Equality Act 2010, the same matter cannot be relied upon both as harassment and as a detriment for direct discrimination. The Employment Judge was entitled to simplify the confused pleading, and the later Judge was entitled not to reopen that order.

6. The email to the MP did not provide the bare elements of a victimisation complaint or a causal link between a protected act and the conduct alleged. There was also no evidence that the Respondent knew of it at the material time.

7. Written correspondence is not an application merely because it contains additional material. A party seeking a case-management order must make that request clear and comply with Rule 30; otherwise, the Tribunal need not treat the correspondence as an amendment application.

• Employment Appeal Tribunal: Appeal dismissed: [2020] UKEAT 0103_20_0312.
• Employment Tribunal: At a preliminary hearing on 10 and 11 October 2019, Employment Judge Emerton refused most proposed amendments while permitting limited amendments. The Employment Appeal Tribunal upheld that exercise of discretion.