Cox v Adecco UK Ltd & others

The appeal concerned applications to amend pleaded protected-disclosure (whistleblowing) detriment claims under section 47B of the Employment Rights Act 1996 and related provisions (notably sections 43A and 43B). The Employment Tribunal's exercise of case-management discretion on most of the proposed amendments was held to have applied the correct legal tests (including the need to weigh relative injustice and hardship and to focus on practical consequences as explained in Selkent, Abercrombie and Vaughan) and those refusals were therefore upheld. However, the ET had erred in relation to one proposed oral disclosure (amendment 6) by failing adequately to assess that proposed disclosure in the context of the earlier history of communications (see Kilraine and Royal Cornwall Hospitals v Watkinson) and in relation to a proposed amendment to paragraph 33 of the list of detriments by not demonstrably engaging with the practical considerations relevant to the balance of hardship. The appeal was therefore allowed in part and those two items were remitted for reconsideration by the Tribunal.

This is an appellate decision about whether an Employment Tribunal properly exercised its case-management discretion in refusing several late amendments to a claimant's whistleblowing/detriment pleadings.

Background and parties:

• The claimant worked in the third respondent's SEN service from October 2017 and alleged that, in July 2018, he made protected disclosures and thereafter suffered detriments (including termination of assignment and loss of access to on-line systems). The claim was brought originally in August 2018 against the first and second respondents and later the third respondent was added.
• The claimant relied on alleged disclosures concerning unauthorised disclosure of his personal data (Data Protection Act 2018/GDPR) and the placement of unqualified staff in EHCP coordinator roles.

Procedural posture:

• An Employment Tribunal initially dismissed aspects of the protected-disclosure claim; on appeal the EAT (HHJ Tayler) on 9 April 2021 set aside that decision and remitted the matter for further case management, directing careful analysis of what disclosures were made, to whom and in what factual context.
• Following that remit the claimant sought to amend his pleadings (application dated 12 August 2021) to add a number of alleged oral disclosures and additional detriments. At a preliminary hearing on 27 June and 1 July 2022 the ET allowed some amendments but refused six specified items; the claimant appealed those refusals to the EAT.

Issues before the EAT:

1. Whether the ET had applied the correct legal principles and carried out the balancing exercise required when deciding applications to amend (drawing on Selkent, Cocking, Abercrombie, Vaughan and related authorities); and
2. Whether, on the facts and in context (including earlier pleadings and available contemporaneous material), the ET was right to refuse each of the contested amendments on grounds of being new facts or causing undue prejudice.

Decision and reasoning:

• The EAT held that the ET had correctly applied the legal tests and reached permissible conclusions in relation to amendments 5, 7 and 8 and the proposed amendment to paragraph 10 of the draft list of issues. The Tribunal had been entitled to treat those items as introducing materially new allegations which would cause real prejudice and to conclude the balance of hardship favoured refusal.
• By contrast, in respect of amendment 6 (an oral disclosure to Ms Brand-Grant on 2 July 2018) the EAT found error: the ET had not properly considered that proposed amendment in the context of the earlier disclosed history and prior pleadings (as required by Kilraine and Royal Cornwall Hospitals v Watkinson) and had not demonstrably engaged with the practical questions bearing on prejudice and relative hardship.
• Similarly, the ET's reasoning refusing the proposed amendment to paragraph 33 of the list of detriments (allegations about the second respondent terminating assignments on its online system) did not show adequate engagement with the practical overlap between the detriments, the evidence already in the second respondent's pleadings and the balancing exercise required (per Abercrombie and Vaughan). For those two items the appeal was allowed and the matter was remitted to the Tribunal for reconsideration; the remainder of the refusals were upheld.

Disposal: The EAT allowed the appeal in part (amendments 6 and the paragraph 33 amendment) and dismissed the appeal in part (amendments 5, 7, 8 and paragraph 10). The allowed aspects were remitted to the ET for reconsideration and the parties were urged to cooperate to bring the case to a substantive hearing promptly.

Appeal allowed in part. The EAT upheld the ET's refusals of amendments 5, 7 and 8 and of the amendment to paragraph 10 of the draft list of issues, finding the ET had applied the correct legal tests on amendment and prejudice. The EAT allowed the appeal in respect of amendment 6 (oral disclosure to Ms Brand-Grant on 2 July 2018) and the proposed amendment to paragraph 33 of the list of detriments because the ET had failed to consider those items properly in the context of the previous history and had not demonstrably engaged with the practical balance of hardship; those matters were remitted to the ET for reconsideration.

Claim lodged 14 August 2018 before the London South Employment Tribunal. At a preliminary hearing the ET dismissed aspects of the protected-disclosure claim. The claimant appealed that dismissal to the Employment Appeal Tribunal; the EAT (HHJ Tayler) by judgment of 9 April 2021 upheld the appeal, set aside the ET's decision and remitted the claim for further case management. Subsequent ET case management hearings (27 June and 1 July 2022 before Employment Judge Harrington) refused six proposed amendments; this appeal to the EAT resulted in a judgment on 30 August 2023 ([2023] EAT 105) allowing the appeal in part and remitting two items to the ET for reconsideration.