Elly Zhang v Heliocor Ltd & Anor

Where an application both seeks to particularise or amend discrimination complaints and to add an individual respondent, the tribunal should first identify which factual matters are voluntary particulars of existing pleaded complaints and which are wholly new allegations requiring amendment. It should then determine the substantive complaints that will proceed before deciding whether it is in the interests of justice to add the proposed respondent.

A single, compendious refusal that treats all further factual material as new may be erroneous if some material particularises existing claims. The scope of the pleaded case can materially affect the balance of prejudice on joinder.

The claimant presented claims against two companies, alleging race discrimination and arrears of pay. Her claim form identified the first respondent’s managing director, Mr Tripathi, as the alleged perpetrator of race-related conduct, but did not name him as a respondent.

She later supplied a narrative of further incidents, sought to add discrimination complaints, and applied to add Mr Tripathi. The Employment Tribunal refused the combined amendment and joinder application. It later refused reconsideration and a fresh application to join Mr Tripathi and another individual.

The claimant appealed only insofar as the decisions refused to add Mr Tripathi. The central issue was whether the Tribunal had properly distinguished particulars of the original race complaints from new claims before deciding joinder.

1. Appeal allowed. The matter was remitted for the Employment Tribunal to decide afresh whether Mr Tripathi should be added as a respondent to the complaints in the claim form, after any necessary or proper particularisation.

2. The first decision adopted an erroneous structure. The Tribunal should first have identified which matters in the claimant’s later document were voluntary particulars of the specific race discrimination or race-harassment complaints already pleaded, and which were factually new complaints requiring permission to amend. It should then have decided the scope of the complaints that would proceed before considering joinder under Rule 34.

3. It was common ground that at least some allegations were voluntary particulars of existing complaints. The Tribunal nevertheless treated the document substantially as containing wholly new material and gave one compendious decision on amendment and joinder. That error could have affected the assessment of whether it was in the interests of justice to add Mr Tripathi, because the permissible scope of the claims affected the relevant prejudice and evidential burden.

4. The second decision did not cure the error. The claimant’s solicitors had made a distinct fresh application to add Mr Tripathi to the race claims already pleaded in the claim form. The Tribunal did not properly identify or determine that application as distinct from the earlier, wider amendment application.

5. Rule 70 does not govern reconsideration of a case-management decision on amendment. Such a decision may instead be revisited under Rule 29 where there has been a material change of circumstances. There was no appeal against the finding that no such change justified revisiting the first decision.

6. For completeness, the EAT explained that the genuine-mistake passage in Cocking concerned substitution of a parent company for a subsidiary. It is not a universal precondition to adding a respondent. The governing exercise is to weigh the relative hardship or injustice in all the circumstances.

• Employment Appeal Tribunal: Allowed the claimant’s appeal and remitted the question whether Mr Tripathi should be joined as a respondent: [2022] EAT 152.
• Employment Tribunal (London Central): Employment Judge Russell refused the combined application to amend and add Mr Tripathi, and subsequently refused reconsideration and a fresh joinder application.