MR DANIEL BEECH v AVON FIRE AND RESCUE SERVICE

An alteration to an ET1 or a document attached to it is an amendment, whatever label the applicant uses. The important question is whether the Employment Tribunal exercises its discretion fairly, having considered all relevant circumstances, including the proposed claim’s merits.

An appellate court may interfere with an interlocutory discretionary decision where the Tribunal failed to consider a relevant matter. Where a refusal of amendment rested on an untested and potentially wrong conclusion about when the claimant obtained material information, the amendment decision should be reconsidered. The appropriate course may be remission to the same Employment Judge where the error is limited and there is no indication of bias or a closed mind.

The claimant applied for an apprentice firefighter role. He failed a ladder-climb element of a national fitness assessment. A female candidate was allowed a further attempt at that element, although she later failed another part of the assessment.

Following disclosure, the claimant brought a sex-discrimination claim. At a preliminary hearing, the Employment Tribunal treated his later document, headed Further and Better Particulars, as seeking to add a new direct-discrimination complaint. It refused the amendment and struck out the remaining direct-discrimination claim.

The claimant appealed the requirement for an amendment application, the procedure adopted, and the strike-out decision. The central issue was whether the refusal of amendment was vitiated by the Employment Judge’s conclusion that the claimant had possessed the relevant ladder-climb information before its apparent disclosure on 24 August 2020.

1. Appeal allowed to a limited extent. The Employment Judge was entitled to treat the proposed addition concerning the ladder-climb assessment as a new complaint and therefore as an application to amend. A request to change the list of issues could succeed only if the amendment were allowed and the strike-out application refused.

2. Any alteration to an ET1 or an attached pleading is an amendment. The label used is not decisive. The Tribunal must exercise its discretion fairly in all the circumstances, applying the guidance in Selkent, which may include the merits of the proposed amendment.

3. The Employment Judge’s conclusion that the material relied upon by the claimant had been available by the July case-management hearing was potentially erroneous. The information about the ladder climb and marking apparently became available only on 24 August 2020. The Judge reached the contrary conclusion without evidence or submissions directed to that point.

4. The timing of disclosure was relevant and important to the discretionary amendment decision. The EAT could not decide for itself whether the correct timing would have changed that decision. The refusal of amendment was therefore remitted for reconsideration.

5. The procedural complaint otherwise lacked substance because the claimant was represented at the relevant hearing and could have responded to the respondent’s amendment argument. The remaining strike-out ground was not determined, because its resolution might influence the remitted amendment decision.

6. Remission was to the same Employment Judge. The error was limited, the Judge was familiar with the material, and there was no indication of bias, a closed mind, or any reason why she could not reconsider the issue professionally.

• Employment Appeal Tribunal: Allowed the appeal to the limited extent that the amendment application was remitted to the same Employment Judge for reconsideration.
• Employment Tribunal: Employment Judge Rayner treated the claimant’s later direct-discrimination allegations as a new claim, refused amendment, and struck out the remaining direct-discrimination claim.