E Macfarlane v Commissioners of Police of the Metropolis

On an application to amend, an employment tribunal must examine the substance of the proposed case. It must balance the injustice and hardship of allowing or refusing the amendment in all the circumstances.

There is no rule that an allegation of automatic unfair dismissal for protected disclosures under section 103A is necessarily the same legal claim as an existing unfair-dismissal complaint. The material question is whether the amendment merely relabels pleaded facts or introduces new factual and legal issues. Time limits remain relevant according to that substantive assessment.

A tribunal may consider a claimant’s clarification of an ambiguous claim at a case-management hearing. It may also take account of the merits of the proposed claim when assessing hardship.

The Claimant resigned from work after raising health-and-safety concerns. Her claim form alleged constructive unfair dismissal and referred to whistleblowing procedures, but she later clarified at a case-management hearing that she was not pursuing a whistleblowing claim.

Shortly afterwards, she applied to amend the claim to allege detriment for protected disclosures under sections 47B and 48, and automatic unfair dismissal under section 103A, of the Employment Rights Act 1996. The Employment Judge refused permission, holding that the amendments introduced new factual and legal allegations, were potentially out of time, and would impose greater hardship on the Respondent given their limited apparent merit.

The Claimant appealed against the refusal to amend. The central issue was whether the Employment Judge had erred in assessing the nature of the amendments and the balance of hardship.

1. Appeal dismissed. The Employment Judge made no error of law in refusing permission to amend.

2. The governing approach was that in Selkent: the tribunal must consider all the circumstances and balance the respective injustice and hardship. The nature of an amendment, time limits, and the timing and manner of the application are relevant considerations, not a formal checklist.

3. The tribunal must focus on the amendment’s substance. It must ask whether it merely supplies a different legal label for facts already pleaded, or introduces materially new factual and legal inquiries. Accordingly, an existing unfair-dismissal complaint does not as a matter of law make a proposed section 103A complaint the same claim or remove the relevance of time limits. The contrary approach in Pruzhanskaya should not be followed.

4. The Employment Judge was entitled to give weight to the Claimant’s earlier clarification that she was not alleging that the Respondent’s failure to act was because she had raised health-and-safety concerns. A claim form does not stand alone. Where its factual basis is unclear, a judge may seek clarification at a case-management hearing, and the answer may inform whether a later amendment advances a new case.

5. The Employment Judge had compared the original claim with the proposed amended allegations and was entitled to conclude that the Claimant now alleged a causative link between protected disclosures and the Respondent’s inaction which had not previously been advanced. That evaluative conclusion was within the broad case-management discretion.

6. A tribunal may consider whether a proposed amended claim has reasonable prospects of success when balancing hardship. The Employment Judge permissibly considered the Claimant’s explanation of the alleged treatment, the likely limitation difficulty, and the cost and effort of requiring the Respondent to defend claims likely to fail. His reasons adequately explained that conclusion.

• Employment Appeal Tribunal: dismissed the Claimant’s appeal and upheld the refusal of permission to amend.
• London Central Employment Tribunal: judgment sent to the parties on 15 October 2021. Employment Judge James refused permission to add protected-disclosure detriment and automatic-unfair-dismissal complaints. The ordinary unfair-dismissal and section 100 claims were dismissed on withdrawal.