LQP v City of York Council & Anor

An employment tribunal deciding an amendment application must balance the practical injustice and hardship of allowing and refusing it. It must not substitute labels such as a “re-labelling” claim or a “new cause of action” for that evaluative exercise. The fact that a claim was imperfectly drafted by an unrepresented claimant does not itself make a later amendment abusive.

Under Rule 50, the tribunal must give full weight to open justice, identify the engaged Convention rights, and balance them. Fresh medical evidence of a risk of self-harm, suicide attempts or loss of life requires proper consideration and may engage Article 2 of the European Convention on Human Rights.

The Claimant brought tribunal claims arising from the termination of his agency assignment, including disability discrimination, victimisation and protected-disclosure detriment. A preliminary hearing determined that he was not disabled within section 6 of the Equality Act 2010.

At a subsequent case-management hearing, the Employment Judge refused the Claimant permission to amend his direct-discrimination claim to allege discrimination because of a perceived disability. The Judge also refused a renewed anonymisation application despite two GP letters, the later one expressing the GP’s own view of risks to the Claimant’s mental health and life.

The Claimant appealed both refusals. The central issues were whether the amendment discretion had been lawfully exercised and whether the renewed Rule 50 application had been assessed by reference to the fresh evidence and the relevant Convention rights.

1. Appeal allowed. The Employment Judge’s refusal of the amendment was flawed. Although case-management decisions attract a wide discretion, an appellate court must not supply missing analysis. The reasons did not show that the Judge had identified the correct principles, considered the relevant factors, or balanced the relative injustice and hardship of allowing and refusing the amendment.

2. The Judge impermissibly treated the application as abusive merely because it followed the adverse disability-status decision. Pleading a case differently because it may be more likely to succeed is not, without more, an abuse of process. The Judge also overstated the significance of the Claimant being a law graduate and failed to consider that an unrepresented claimant might not have understood that a perceived-disability claim was available.

3. Only one outcome was properly open on the amendment application. The original pleading and the timing of the mental-health disclosure gave the Respondents notice of the essential factual case. The perceived-disability claim was reasonably arguable and would substantially overlap with evidence already required. The additional preparation, cost and delay for the Respondents were outweighed by the prejudice to the Claimant if prevented from advancing the claim. Permission to amend was therefore granted.

4. The refusal of anonymity also involved an error of law. Under Rule 50, the tribunal had to give full weight to open justice, identify the relevant Convention rights, and undertake the required balance. The new GP evidence was materially different from that considered on the earlier application. It stated the GP’s opinion that refusal of anonymity had worsened the Claimant’s mental health and created risks of self-harm, suicide attempts and loss of life.

5. That evidence potentially engaged Article 2 and, at least, Article 8 of the European Convention on Human Rights. The anonymity application was remitted to the tribunal. For the EAT proceedings, open justice had to give way to the Claimant’s Article 2 rights; an indefinite anonymity order was made, with liberty to apply.

• Employment Appeal Tribunal: Allowed the appeal from the case-management decision. It granted permission to amend and remitted the renewed anonymity application.
• Employment Tribunal: Employment Judge Little refused the amendment and renewed Rule 50 anonymity applications in a case-management decision dated 3 March 2021.
• Employment Tribunal: An earlier preliminary hearing determined that the Claimant was not disabled within section 6 of the Equality Act 2010. An earlier anonymity application was also refused.