E Macfarlane v Commissioners of Police of the Metropolis

The Employment Appeal Tribunal dismissed the claimant's appeal against the employment judge's refusal to allow an amendment to add complaints under the whistleblowing provisions of the Employment Rights Act 1996 (notably sections 47B and 103A). The EAT emphasised that tribunals must focus on the substance of a proposed amendment and whether it introduces new legal or factual allegations rather than applying a rigid rule that a section 103A automatic unfair dismissal claim is always the same cause of action as an existing unfair dismissal claim. The EAT held that the employment judge was entitled to place weight on the claimant's clarification at a case management hearing that she was not pursuing a whistleblowing claim, to conclude the amendment would introduce new factual and legal matters, and was also entitled to consider the merits and time‑limit issues when assessing the balance of hardship.

Background and parties: The claimant, a short‑term Community Assessor for the respondent police force, resigned after an incident she regarded as creating unsafe working conditions and brought a claim received on 18 February 2020. She originally pleaded constructive (ordinary) unfair dismissal and described failures in health and safety and lack of support. After a case management discussion in June 2020, where she stated she was not pursuing a whistleblowing claim, she sought to amend her claim to add complaints under the whistleblowing/detriment and automatically unfair dismissal provisions (sections 47B, 48 and 103A ERA).

Relief sought and procedural posture: The application sought permission to amend to plead detriment and automatically unfair dismissal arising from protected disclosures. The employment judge (EJ James) refused permission to amend at a preliminary hearing (reasons sent 15 October 2021). HHJ Beard granted permission to appeal limited to two grounds. The EAT heard the appeal and dismissed it.

Issues framed:

• Whether the employment judge erred in law in treating the proposed section 103A/section 47B claims as a new type of legal claim, giving inappropriate weight to the claimant's disavowal of whistleblowing at the case management hearing and insufficient weight to the ET1.
• Whether the EJ erred in assessing the balance of hardship, including the relevance of time limits, the claimant's litigant‑in‑person status and the respondent's pleaded position.

Court's reasoning: The EAT restated Selkent Bus Co Ltd v Moore as the guiding authority on amendments and emphasised the overarching balancing principle: tribunals must weigh injustice and hardship in the round. The EAT rejected the proposition (derived from Pruzhanskaya) that a section 103A complaint is automatically the same cause of action as an existing unfair dismissal claim and therefore always in time; that approach was inconsistent with Selkent and Court of Appeal authorities (including Abercrombie and New Star Asset Management). The EAT held the EJ was entitled to focus on the substance of the amendment and to take account of the claimant's clear clarification at the CMD that she was not pursuing a whistleblowing claim. On the balance of hardship, the EJ was permitted to have regard to prospects of success and time‑limit issues; his assessment that the detriment/section 103A allegations had little prospect was a lawful exercise of discretion. The appeal was therefore dismissed.

Appeal dismissed. The EAT held that tribunals must assess amendment applications by reference to the substance of the proposed amendment and its factual and legal consequences. There is no categorical rule that an automatically unfair dismissal claim under section 103A is the same cause of action as a pleaded unfair dismissal; the employment judge acted within his discretion in treating the proposed whistleblowing claims as introducing new factual and legal matters, in relying to some extent on the claimant's earlier clarification that she was not pursuing a whistleblowing claim, and in taking account of merits/time‑limit considerations when balancing hardship.

Employment Tribunal (London Central) preliminary hearing before Employment Judge James refused the claimant's application to amend to add whistleblowing/detriment and section 103A claims (reasons sent 15 October 2021). Permission to appeal to the EAT was granted by HHJ Beard (order dated 16 March 2022). Appeal to the Employment Appeal Tribunal ([2023] EAT 111) dismissed on 22 August 2023.