Iqra Community Primary School v Mansur

An Employment Tribunal considering an application to amend must apply the Selkent balancing exercise to the amendment actually sought. It must consider all circumstances and balance the respective injustice and hardship, including whether the amendment introduces a new cause of action, limitation consequences, and prejudice to the respondent.

Where a respondent has made no valid response and the Tribunal fixes a hearing under rule 21, it must give the respondent notice. A discretion to shorten the ordinary period of notice does not permit notice to be dispensed with altogether.

The claimant, a teaching assistant, presented claims for unfair dismissal, race discrimination and sex discrimination. After presenting her ET1, she asked to add a whistleblowing detriment claim.

At a preliminary hearing attended only by the claimant, Employment Judge Wade allowed the amendment and listed a final hearing four days later without notice to the employers. The whistleblowing detriment claim alone succeeded at that hearing. The employers appealed against the amendment decision and the absence of notice.

The central issues were whether the ET1 already advanced a whistleblowing detriment claim and whether the Tribunal could list the further hearing without notifying a non-responding respondent.

1. Appeal allowed. The ET1 did not advance a whistleblowing detriment claim. The reference to victimisation in the remedies section concerned the dismissal and did not identify a separate detriment claim. The claimant's subsequent request to add such a claim confirmed that the amendment introduced a new cause of action.

2. Employment Judge Wade erred by allowing the amendment without adequately applying the guidance in Selkent Bus Co Ltd v Moore [1996] ICR 836. There was no recorded consideration of the relevant balance of prejudice. In particular, the judge proceeded on the incorrect basis that the claim already existed, failed to address the prejudice of requiring the employers to meet a new claim, and did not consider whether it was just to extend time for that claim.

3. The amendment application was not bound to succeed or fail. It was therefore remitted for determination by a different Employment Judge.

4. Where the Tribunal decides under rules 21(2) and 21(3) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 to fix a hearing because the claim cannot properly be determined on the available material, the respondent is entitled to notice. Rule 58 requires 14 days' notice of a final hearing. Rule 5 permits that period to be shortened but cannot justify dispensing with notice entirely. The failure deprived the employers of an opportunity to seek permission to participate and was a further error of law.

5. The orders of 4 April 2019 and the successful whistleblowing-detriment element of the 8 April judgment were set aside. The adverse determinations on unfair dismissal and sex discrimination remained. The later review and remedy decisions also fell away. The case was remitted to a different Employment Judge to determine the amendment application and, if amendment is allowed, to direct a response and further conduct of the claim.

• Employment Appeal Tribunal: allowed the employers' appeal, set aside the amendment decision and the whistleblowing-detriment judgment, and remitted the amendment application to a different Employment Judge.
• Employment Tribunal: Employment Judge Wade permitted an amendment and listed a final hearing without notice on 4 April 2019. Employment Judge Buckley upheld only the whistleblowing detriment claim on 8 April 2019 and later refused review and an extension of time for a response.