Tamer El-Tawil v Arcadis Human Resources Limited

A direction to provide particulars in a Scott Schedule does not ordinarily permit a claimant to add new factual complaints. Whether an entry is a particular of an existing claim or a new complaint depends on the pleaded allegations, the terms and purpose of the case-management direction, and how the entry is presented.

Where the tribunal is entitled to treat an entry as a new complaint, permission to amend is required. The tribunal has a broad discretion on amendment. An appellate tribunal will not interfere absent an error of legal principle, a failure to consider relevant matters, reliance on irrelevant matters, or a decision no reasonable tribunal could reach.

The claimant appealed against Employment Judge Nicolle’s order of 13 October 2020 refusing permission to include allegations 5 and 10 in a Scott Schedule. His ET1 alleged, among other matters, discrimination concerning promotion, professional development, relocation to the United States, project work and the handling of a grievance.

A prior case-management order required further particulars in a Scott Schedule because the discrimination allegations lacked clarity. The disputed entries concerned appointment as lead on the Aruba Airport project and alleged moves to work said to deskill the claimant and alter his career path.

The central issue was whether those entries merely particularised the existing ET1 or advanced new complaints requiring permission to amend.

1. Appeal dismissed. The Employment Judge was entitled to conclude that both disputed Scott Schedule entries were new complaints rather than permissible particulars of the ET1.

2. The direction to serve a Scott Schedule required particulars of the factual allegations already pleaded. Read in context, it did not give the claimant unrestricted permission to advance further factual allegations under the general wording of paragraph 11.1 of the ET1. The EAT referred to Chandok v Tirkey [2015] ICR 527 as emphasising that an ET1 is not merely an initial document capable of later augmentation at will.

3. Allegation 5 was expressly presented as a new allegation of less favourable treatment: non-appointment as lead on the Aruba Airport project. The tribunal could reject the later characterisation of it as an incident of the pleaded United States relocation allegation, particularly as Aruba is not in the United States.

4. Allegation 10 introduced fresh factual matters concerning attempts to move the claimant into other work. It was presented as a professional-development allegation, not as a particular of the pleaded grievance complaint. The tribunal could therefore treat it as a new claim.

5. Once amendment was required, the tribunal’s broad discretion was engaged. It permissibly took account of the claimant’s prior knowledge of the matters, his failure to plead them when presenting the claim, and the additional time, cost and prejudice to the respondent. No error of principle or other appellate basis for intervention was shown.

6. The EAT also declined to disturb removal of Scott Schedule allegation 1, since the claimant’s representative had agreed its withdrawal as a discrete allegation. The claimant could nevertheless rely on the underlying matter as background evidence at the final hearing.

• Employment Appeal Tribunal: dismissed the claimant’s appeal against the refusal of permission to amend: [2022] EAT 39.

• Employment Tribunal: Employment Judge Nicolle refused permission on 13 October 2020 to add allegations 5 and 10 in the Scott Schedule.