Dr Glaucia Pereira v GFT Financial Limited

An Employment Tribunal must identify the substance of a claim by reading the ET1 and all documents incorporated or referred to in it. A claim does not depend on a particular box being ticked. An amendment may therefore be unnecessary where it merely gives a different legal label to facts already pleaded.

When deciding whether reconsideration is necessary in the interests of justice, the Tribunal must balance the prejudice to both parties. It must consider relevant procedural circumstances and medical evidence. It cannot infer that a party’s cognitive abilities were unaffected without properly considering medical material which may bear on concentration or memory. Although finality remains important, omitting those matters is an error of law and an impermissible exercise of discretion.

The claimant was dismissed during her probationary employment shortly after she alleged that she had disclosed her pregnancy. Her ET1 ticked unfair dismissal and sex discrimination. It referred to attachments which alleged that the dismissal followed early pregnancy and complaints of sex-based treatment.

The Employment Tribunal refused an application to add pregnancy-related automatic unfair dismissal and statutory-right claims. It treated them as new, out-of-time claims. It later refused, at the reconsideration sift stage, to reconsider that decision despite the claimant’s reliance on medical evidence of anxiety, depression, memory and concentration problems.

The appeal concerned whether the Tribunal had properly applied the interests-of-justice test when refusing reconsideration.

1. Appeal allowed. The Tribunal erred by treating the proposed pregnancy-related dismissal claims as necessarily new and out of time before examining the whole claim form. The ET1 and its expressly referenced attachments formed one claim. Read together, they already pleaded the substance of a pregnancy-related dismissal case. Alternatively, any amendment largely applied a new legal label to facts already pleaded.

2. The interests-of-justice discretion under rule 70 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 required a balance of the relative prejudice and hardship. The Tribunal failed to undertake that exercise. It did not consider that the existing sex-discrimination and victimisation claims would in any event require a substantial hearing into broadly the same dismissal events and facts.

3. The Tribunal did not apply an impermissible exceptional-circumstances test. Its error lay instead in failing to consider necessary matters. It should have considered whether the medical evidence was admissible, whether it established a condition affecting the claimant’s ability to present her claim, and whether it contributed to the relevant failure. The Tribunal could not properly conclude from her conduct of proceedings that her cognition was unimpaired without a careful assessment of that evidence.

4. The omissions were an impermissible exercise of discretion. Applying Jafri v Lincoln College [2014] IRLR 544, the EAT could substitute only where one result was possible. Only one conclusion was open at the sift stage: reconsideration could not be refused. The matter was remitted to a fresh Tribunal under rule 72 to obtain the parties’ views, decide whether a reconsideration hearing is required, and then determine whether the original amendment decision should be affirmed, varied or revoked.

• Employment Appeal Tribunal: Allowed the appeal in [2023] EAT 124 and remitted the reconsideration process to a fresh Employment Tribunal.
• Employment Tribunal: On 25 July 2019 refused permission to amend to add pregnancy-related automatic unfair dismissal and statutory-right claims. In a judgment sent on 13 October 2020, it refused reconsideration at the sift stage.