M ARIAN v THE SPITALFIELDS PRACTICE

An employment tribunal considering an amendment application must assess delay as part of the balance of hardship. Delay alone, even if unexplained, does not determine the application. The tribunal must identify the practical prejudice caused by timing and the prejudice to the claimant if the amendment is refused.

Where an existing unfair dismissal claim is amended to allege dismissal for protected disclosures under Employment Rights Act 1996, section 103A, the time-bar position for a freestanding claim may be relevant. Its weight depends on the factual and legal overlap between the proposed and existing claims. A pleading is assessed by its substance, not by whether a litigant in person used the statutory label or exact statutory language.

The claimant, a former healthcare assistant, had brought claims including protected-disclosure detriment and ordinary unfair dismissal. He sought to amend those proceedings to add a claim of automatic unfair dismissal under section 103A of the Employment Rights Act 1996 and to rely on a further alleged protected disclosure.

The Employment Tribunal refused both amendments. It treated the section 103A claim as first raised at a May 2020 preliminary hearing, as a new and out-of-time claim, and placed substantial weight on delay. The claimant appealed. The central questions were whether the tribunal had correctly assessed when and how the section 103A point had been raised, and whether it had lawfully balanced the respective hardships arising from the proposed amendments.

1. Appeal allowed. The tribunal’s refusal of the section 103A amendment was unsafe. It made a material factual error by treating the claimant as having first raised the protected-disclosure dismissal point in May 2020. His February 2020 draft list of issues had, in substance, alleged that dismissal was connected with his protected disclosures. The absence of the statutory label or the precise formulation of the sole-or-principal-reason test did not alter that conclusion.

2. Under the Selkent approach, an amendment may be sought at any time before determination. Delay is a discretionary consideration, not an automatic bar. The tribunal must consider the actual consequences of the timing for the balance of hardship. Here, the tribunal did not identify specific hardship caused to the respondent by the timing of the section 103A amendment. It also failed to address adequately the claimant’s loss of the opportunity to advance that complaint.

3. The EAT declined to follow Pruzhanskaya insofar as it treated a section 103A allegation added to an ordinary unfair dismissal claim as incapable of being a new complaint for time-limit purposes. The correct approach, consistent with Abercrombie and New Star Asset Management, focuses on the substance of the proposed amendment and the extent of any substantially different factual inquiry. A freestanding claim’s time-bar position may be relevant, but its weight depends on the circumstances.

4. On a fresh assessment, the section 103A amendment was allowed. The alleged protected disclosures were already in issue for the detriment claims, and the reason for dismissal was already in issue for ordinary unfair dismissal. There was almost no significant new area of inquiry. The claimant’s prejudice if refused and the respondent’s exposure if the claim succeeded did not outweigh the strong case for amendment.

5. The refusal to add the further alleged protected disclosure was also unsafe. Although it was first raised only in August 2020 and could require further evidence, the tribunal again did not properly place delay and the time-limit point within the overall balance of hardship. That application was remitted to a different employment judge for reconsideration, with particular attention to the practical evidential implications.

• Employment Appeal Tribunal: Allowed the claimant’s appeal against the Employment Tribunal’s refusal of the two amendment applications. The section 103A amendment was granted; the additional protected-disclosure amendment was remitted to a different Employment Judge.

• Employment Tribunal: By decisions sent on 18 November and 23 December 2020, refused the amendment applications and refused reconsideration. No lower-court citation was stated.