A Chaudhry v Cerberus Security and Monitoring Services Limited

An employment tribunal deciding an application to amend must first identify the precise proposed amendment, normally in writing. It must then expressly balance the injustice or hardship of allowing the amendment against that of refusing it, taking account of all relevant circumstances.

The factors discussed in Selkent, including the nature of the amendment, limitation and the timing and manner of the application, assist that assessment but are not a checklist. A proposed new legal label based on facts already pleaded is ordinarily a relabelling exercise. In such a case, limitation is less significant than where the amendment introduces substantially different factual and legal inquiries.

The claimant, a security officer, brought claims for unfair dismissal and victimisation after his summary dismissal. His claim form referred to his Pakistani origin, Muslim faith, earlier tribunal claims alleging race and religious discrimination, and alleged differential treatment. He later applied in writing to amend the claim to advance direct race or religious discrimination and harassment complaints arising from his suspension, disciplinary process, dismissal and appeal.

At a preliminary hearing, the Employment Tribunal refused the amendments. It held that they were new types of complaint rather than relabelling, were significantly out of time, and were insufficiently clear. The claimant appealed. The central issue was whether the Tribunal had lawfully approached the amendment application.

1. Appeal allowed and remitted. The Employment Tribunal erred in law by refusing the application without carrying out the required balance of the injustice or hardship caused by allowing or refusing it.

2. The starting point was to identify each amendment sought. Proposed amendments should almost always be reduced to writing before determination. Where an application is unclear, the tribunal may allow it in whole or part, refuse it, or require clarification before deciding it. Clarification should ordinarily occur before determination, since a later, better-drafted application concerning the same claims may not amount to a material change of circumstances permitting reconsideration under Employment Tribunal Rules 2013, Rule 29.

3. The claimant’s pleading and amendment application were sufficiently clear to identify a proposed complaint of less favourable treatment because of race and/or religion in the suspension, disciplinary process, dismissal and appeal. The Tribunal had overstated their lack of clarity and wrongly treated harassment as having been raised only at the hearing.

4. After identifying the amendments, the Tribunal had to balance both sides of the scales. Its reasons considered only matters against amendment and did not address the prejudice to the claimant if amendment were refused. Nor did they adequately consider the limited hardship to the respondent, given the early stage of proceedings and its existing need to adduce evidence on the disciplinary process and dismissal.

5. The proposed discrimination claims could amount to relabelling: they placed new legal labels on substantially pleaded facts. The Tribunal therefore erred in treating the fact that the causes of action differed as excluding relabelling. It also erred in its limitation approach. It should have considered whether the disciplinary process and dismissal formed a continuing act, and should have recognised that limitation carries less weight where an amendment is closely connected with, or merely relabels, the original case.

6. The amendment application was remitted to a different Employment Judge. The claimant might submit a clearer and more focused proposed amendment. The court suggested, without imposing, a two-step aid: identify the written amendments and then balance the injustice or hardship, using the Selkent factors where appropriate but not as a checklist.

• Employment Appeal Tribunal: allowed the appeal and remitted the amendment application to a different Employment Judge.
• Employment Tribunal: at a preliminary hearing on 11 February 2020, Employment Judge Lancaster refused permission to amend the claim; reasons were sent on 2 March 2020.