A Shankar v Genpact (UK) Limited & Ors

An Employment Appeal Tribunal will not interfere with an employment judge’s discretionary refusal of an amendment unless an error of law is shown. In deciding whether to permit a new indirect-discrimination claim, the tribunal may weigh the delay in making the application, the claimant’s opportunity to formulate it while legally represented, and the prejudice to respondents if the scope of the proceedings is expanded. The fact that related facts have already been pleaded does not make a new cause of action a mere relabelling.

The claimant brought several employment claims, including disability discrimination and failure to make reasonable adjustments. He later sought to amend his claim to add indirect disability discrimination based on working hours, work demands, illness-related working requirements and appraisal criteria.

Employment Judge Glennie allowed several amendments but refused this one. Although the respondents had not then lodged a response, the judge held that the new cause of action would expand the case, had not been advanced at an earlier stage despite legal representation, and would cause respondent prejudice. The claimant appealed on the sole permitted ground concerning that refusal.

1. Appeal dismissed. The Employment Appeal Tribunal held that Employment Judge Glennie had made no error of law in refusing permission to amend.
2. The employment judge had directed himself by reference to Selkent Bus Company v Moore [1996] ICR 836. The proposed indirect-discrimination claim was an additional cause of action which would materially add to what the respondents had to defend. It was not merely a relabelling of existing allegations.
3. There were proper grounds for the exercise of discretion. The application was not made until 17 July 2020, although an intention to apply had been mentioned earlier. The claimant had legal representation from 23 December 2019 until 10 February 2020, which afforded an opportunity to formulate the amendment. Allowing it would also prejudice the respondents by expanding the claim.
4. The claimant remained able to advance the relevant factual matters through his existing claims, including the reasonable-adjustments complaint. The conclusion was neither legally erroneous nor perverse. Other matters raised by the claimant fell outside the permitted ground and were not determined.

• Employment Appeal Tribunal: Appeal dismissed. The Tribunal upheld Employment Judge Glennie’s refusal to permit the proposed amendment adding indirect disability discrimination.
• Employment Tribunal: At a preliminary hearing on 28 July 2020, Employment Judge Glennie allowed several amendments but refused the indirect-discrimination amendment.