D Cox v Adecco UK Limited & Ors

An employment tribunal deciding an amendment application must assess the practical consequences of allowing or refusing it. It must balance the parties’ real hardship, not apply the Selkent considerations as a box-ticking exercise.

A proposed protected disclosure must be read in its factual context, including the previous history. A later statement may reiterate an earlier alleged disclosure and cannot be rejected as incapable of amounting to a qualifying disclosure without that context. A tribunal must also explain how the practical prejudice said to arise from a late amendment outweighs the prejudice to the claimant.

The claimant brought claims of protected-disclosure detriment under Employment Rights Act 1996 arising from his agency work for the third respondent. Following an earlier successful appeal and remission, he applied in August 2021 to amend his pleadings and list of issues.

The Employment Tribunal allowed some amendments but refused six. The claimant appealed the refusals concerning alleged oral disclosures on 2 and 3 July 2018, alleged detriments by the second respondent in terminating assignments on its online system, and the third respondent’s alleged knowledge of the contents of a letter of 5 July 2018.

The central issue was whether the Tribunal had lawfully exercised its discretion when balancing the consequences of the proposed amendments.

1. Appeal allowed in part. The Tribunal’s refusals of amendments 5, 7 and 8, and of the proposed amendment to paragraph 10 of the draft list of issues, were within its case-management discretion. Those amendments would introduce substantive new allegations or enquiries after a long delay. The Tribunal permissibly found that the resulting evidential prejudice outweighed the claimant’s hardship.

2. The Tribunal erred in refusing amendment 6. The alleged statement to Ms Brand-Grant on 2 July 2018 had to be assessed against the earlier alleged conversation concerning the disclosure of the claimant’s personal data. A statement may constitute, or reiterate, a qualifying disclosure only when read in its factual setting and previous history. The Tribunal was wrong to conclude that the statement could not amount to a disclosure under section 43B of the Employment Rights Act 1996, without that contextual assessment.

3. The Tribunal also erred in refusing the amendment to paragraph 33 of the list of detriments. Its brief reasons did not show that it had engaged with the practical consequences for either party. The second respondent had already pleaded its role in changing the claimant’s assignments and would in any event have to address the related allegation concerning access to its online portal. The Tribunal did not explain what further real prejudice justified refusal.

4. The allowed matters were remitted to the Tribunal for reconsideration. The parties were invited to agree the proper course for remission; otherwise, their positions were to be notified before formal hand-down.

• Employment Appeal Tribunal: Appeal allowed in part in [2023] EAT 105. The refusals of amendment 6 and the amendment to paragraph 33 of the list of detriments were set aside and remitted for reconsideration.
• Employment Tribunal: London South Employment Tribunal refused the six contested amendments at a hearing on 27 June and 1 July 2022, while allowing other amendments.
• Earlier Employment Appeal Tribunal appeal: The claimant’s earlier appeal was upheld and the protected-disclosure claim remitted for case management and progression; no citation was stated in the judgment.