Jumbo v Zonal Retail Data Systems

An Employment Tribunal deciding whether to permit an amendment must consider all the circumstances and balance the relative injustice and hardship caused by granting or refusing it. Relevant matters include the nature of the amendment, time limits, and the timing and manner of the application.

Delay alone is not decisive. The Tribunal must assess its practical consequences, including evidential prejudice and the stage of the proceedings. It must also give adequate reasons showing how it weighed the competing considerations. An amendment which adds a legal label to pleaded facts, or is closely connected with them, requires particular care before time limits are treated as a factor of substantial weight.

The Claimant appealed against the Reading Employment Tribunal's refusal to permit four amendments to his ET1. The proposed amendments alleged victimisation under section 27 of the Equality Act 2010, unpaid accrued holiday under regulation 30 of the Working Time Regulations 1998 and/or breach of contract, discrimination or victimisation in the non-payment of holiday, and wrongful dismissal.

The Tribunal had correctly directed itself by reference to Selkent and Cocking, but refused every amendment principally because of delay and the applicable time limits. The appeal concerned whether it had properly evaluated the connection between the proposed and existing claims, the parties' relative prejudice, and the significance of the Claimant's earlier legal advice.

1. Appeal allowed. The Employment Tribunal erred in law in refusing all four proposed amendments. Its reasons stated the applicable principles but did not demonstrate a proper balancing of the relevant circumstances, injustice and hardship.

2. The Tribunal was entitled to regard the nature of an amendment, time limits, and the timing and manner of the application as relevant. However, it could not treat delay simpliciter as decisive. It had to assess the effect of delay in the proceedings as a whole, including any effect on evidence and the Respondent's actual prejudice.

3. For the victimisation amendment, the Tribunal's repeated conclusion that there was no link with the pleaded facts was unsustainable. The proposed claim relied substantially on pleaded detriments and on a meeting already described in the ET1. Whether it was properly characterised as re-labelling was finely balanced and was left for the Tribunal on remittal.

4. For holiday pay, the Tribunal identified that the Claimant appeared to have a compelling claim and that the Respondent's earlier advice about entitlement was likely incorrect. It nevertheless failed to identify and weigh countervailing prejudice to the Respondent, and failed to engage properly with that stated explanation for the delay.

5. The amendments alleging discrimination or victimisation in the non-payment of holiday necessarily required reconsideration in light of those conclusions. The wrongful-dismissal amendment was also closely connected with pleaded assertions that the alleged misconduct had not occurred. The Tribunal placed significant weight on prior legal advice without sufficient information about its scope and without a proper balancing exercise.

6. The matter was remitted for rehearing by an Employment Tribunal. It was not reserved to, nor was it to be excluded from, the original Employment Judge; that question was left to the Regional Employment Judge.

• Employment Appeal Tribunal: Allowed the Claimant's appeal and remitted the amendment applications for rehearing.
• Employment Tribunal, Reading: Employment Judge Jenkins, sitting alone, refused the proposed amendments following a hearing on 21 March 2019.