British Gas v Decosta & Ors

An employment tribunal must exercise its amendment discretion in accordance with the Selkent guidance. The fact that a proposed new claim is in time does not of itself justify amendment. The tribunal must assess the overall context, including the viability of the proposed claim, applicable limitation issues and whether an extension of time is available, and the balance of prejudice between the parties.

Three customer sales executives brought Employment Tribunal claims concerning changes to their roles and the handling of their grievances. Two later resigned and sought to add constructive unfair dismissal claims. All three also sought to advance unfair dismissal claims based on Hogg v Dover College.

Employment Judge Cadney allowed the amendments. British Gas appealed, contending that the Judge had not correctly exercised the discretion to permit amendment. The central issue was whether the Judge had applied the required principles when allowing both the timely constructive dismissal claims and the substantially out-of-time claims based on the alleged earlier dismissal.

1. Appeal allowed. The Employment Judge had erred in the exercise of the discretion to permit amendment. The amendment issue was remitted to a different Employment Judge.

2. The Judge was entitled to treat the 10 September 2018 email, sent by litigants in person, as a timely indication that the two resigning claimants intended to seek constructive unfair dismissal claims. Their later formal articulation of those claims after the Tribunal's direction should not itself be treated as making the amendment application out of time.

3. However, timeliness did not automatically justify leave to amend. Under Selkent Bus Co Ltd v Moore [1996] UKEAT/151/96/205, the Tribunal had to consider the whole context, which could include the viability of the new constructive dismissal claims. The Judge had not done so.

4. The claims founded on Hogg v Dover College were significantly out of time. The Judge therefore had to consider whether an extension of time could be granted before deciding whether amendment should be allowed. That question might have been decisive, but it was not addressed.

5. The Judge also failed to conduct a proper overall assessment of the relative prejudice before allowing all amendments. The original claims were not struck out, since amendment could potentially cure defective pleading, but the amendment discretion had to be reconsidered afresh.

• Employment Appeal Tribunal: Allowed British Gas's appeal and remitted the amendment issue to a different Employment Judge.
• Employment Tribunal: Employment Judge Cadney, in a decision sent on 25 April 2019, allowed amendments to claims begun in April 2018.