Arian v Spitalfields

The Employment Appeal Tribunal allowed in part an appeal against the employment tribunal's refusal to permit amendments to pleadings. The principal legal principles were (i) applications to amend are discretionary and delay is only one factor in the balance of prejudice (Selkent guidance), (ii) an allegation that dismissal was for the reason or principal reason of making protected disclosures under section 103A Employment Rights Act 1996 may be a relabelling of pleaded facts rather than a discrete new claim, and (iii) a tribunal must take care not to refuse amendment on an erroneous factual premise.

The EAT held that the tribunal made a material error of fact by failing to recognise that the claimant had, in a draft list of issues lodged on 3 February 2020, plainly raised in substance a s103A / protected-disclosure unfair dismissal complaint; the tribunal therefore placed undue weight on delay and did not properly balance hardship to the parties. The EAT applied Abercrombie v Aga Rangemaster and Selkent and allowed the appeal as to the section 103A amendment; it also found the tribunal's refusal to permit an additional alleged protected disclosure unsafe and remitted that point for reconsideration by a different judge.

Background and nature of the application. The claimant, formerly employed as a healthcare assistant, brought two tribunal claims including protected-disclosure detriment complaints and ordinary unfair dismissal. He sought to amend his pleadings to add an automatically unfair dismissal complaint under section 103A Employment Rights Act 1996 and to add a further alleged protected disclosure. The employment tribunal refused both amendment applications (reserved decision 18 November 2020) and refused reconsideration (23 December 2020). The claimant appealed to the EAT.

Procedural posture. The appeal concerned only the tribunal's refusal to permit amendment; no substantive findings on the merits of the employment complaints had been made.

Issues framed by the EAT.

• Whether the tribunal erred in fact by concluding the section 103A complaint was first raised only at the May 2020 preliminary hearing when the claimant had earlier identified the issue in a 3 February 2020 draft list of issues.
• Whether the tribunal treated delay as an overriding reason to refuse amendment rather than a factor in the overall balance of prejudice (Selkent).
• Whether adding a section 103A complaint to an existing section 98 complaint should be treated as a new, time‑barred claim or could be permitted where it is largely a relabelling of pleaded facts (authorities including Abercrombie and Pruzhanskaya were considered).
• Whether the tribunal failed adequately to consider medical evidence and witness statements relied on by the claimant when assessing the explanation for delay.

Court's reasoning and conclusions. The EAT found a material factual error: the claimant's 3 February 2020 list of issues plainly raised in substance that he alleged dismissal was connected with protected disclosures. The tribunal's mistake as to timing made its emphasis on delay unsafe. The EAT stressed that delay is only one discretionary factor and must be weighed against prejudice to both parties in accordance with Selkent and House of Lords/EAT guidance; the tribunal had not identified specific prejudice caused by allowing the s103A amendment and had not properly balanced hardships. On the legal point whether adding s103A is a new claim, the EAT rejected following Pruzhanskaya where it conflicted with other authority, but concluded on the facts that the proposed s103A amendment involved little or no new area of enquiry and therefore ought to be permitted (applying Abercrombie). The EAT also held that the tribunal's decision refusing the additional fifth alleged disclosure was unsafe because the balance of prejudice had not been properly assessed and remitted that discrete issue to another judge for reconsideration, directing the tribunal to consider practical implications and whether a further hearing is needed.

appeal allowed in part. The EAT allowed the appeal in respect of the tribunal's refusal to permit an amendment to add an automatically unfair dismissal complaint under section 103A Employment Rights Act 1996, because the tribunal proceeded on an erroneous factual premise (failing to treat the claimant's 3 February 2020 list of issues as raising the complaint), gave excessive weight to delay without properly balancing hardship, and failed properly to apply the authorities on amendment (Selkent; Abercrombie). The EAT also found the tribunal's refusal to permit addition of a further alleged protected disclosure unsafe for similar reasons and remitted that discrete issue to the tribunal for reconsideration by a different judge.

Appeal to the Employment Appeal Tribunal from decisions of the Employment Tribunal (reserved decision on amendment sent 18 November 2020 and refusal of reconsideration dated 23 December 2020). Neutral citation for this EAT judgment: [2022] EAT 67.