J Olatunde v Viewber Ltd

On an application to amend, an employment tribunal must consider all the circumstances and balance the injustice and hardship of granting the amendment against that of refusing it. Delay, limitation, the merits, and the extent to which the amendment recasts the factual case are important factors. They may be decisive in the balance, but are not automatic bars.

A proposed holiday-pay claim may contain a distinct and narrower claim arising from periods of actual work. A tribunal must consider that strand separately where its evidential implications differ materially from a wider claim founded on an unproved assertion of working time.

The claimant intermittently performed property viewings for the respondent between August 2018 and July 2020. He was paid per viewing and, after the relationship ended, brought tribunal proceedings as a litigant in person.

At a preliminary hearing, the tribunal refused applications to amend the claim to add national minimum wage and holiday-pay complaints. The proposed wage claim treated periods of holding property keys as working time. The holiday-pay claim was principally put on the same basis. The tribunal also struck out the existing discrimination claims, which were not the subject of this appeal.

The appeal concerned whether the tribunal had applied the correct amendment discretion and, in particular, whether it had failed to consider a narrower holiday-pay claim based solely on time spent carrying out actual viewing assignments.

1. Appeal allowed in part. The appeal failed as to the refusal to add the national minimum wage claim and the wider holiday-pay claim founded on the proposition that keyholding was remunerative working time. It succeeded in relation to an embedded, narrower holiday-pay claim based on periods when the claimant actually carried out viewing assignments.

2. The governing approach was that in Selkent. The tribunal had to consider all the circumstances and balance the hardship of allowing an amendment against the hardship of refusing it. Although the tribunal should have stated the relevant law, the EAT was satisfied that it understood that approach from the decision, the parties’ skeleton arguments, and the reasoning as a whole.

3. The tribunal was entitled to regard the national minimum wage amendment as an extensive factual recasting of narrow claims concerning events in July 2020. It was also entitled to take account of the weak merits of the keyholding-working-time contention, the substantial delay, the inadequate explanation for delay, and the limitation position. Those matters could carry decisive weight in the balancing exercise; they were not treated as automatic bars. The tribunal had also understood the substantial value at stake for both parties.

4. The same reasoning was sufficient for the holiday-pay claim insofar as it depended on keyholding being working time. However, the tribunal should have considered separately whether holiday accrued during actual viewing assignments. That narrower claim did not depend on the keyholding contention and could have had materially different legal and evidential consequences. The EAT could not be certain that the balance would necessarily have remained against the claimant.

5. Where amendment and strike-out applications are before a tribunal at the same hearing, their order is a matter of judicial case-management discretion, exercised having regard to the particular applications. The discrete holiday-pay issue was remitted to a different employment judge to determine whether that amendment should be permitted.

• Employment Appeal Tribunal: Appeal allowed in part in [2023] EAT 158. The refusal of the national minimum wage and keyholding-based holiday-pay amendments was upheld. The narrower holiday-pay amendment was remitted to a different employment judge.
• Employment Tribunal, Watford: Employment Judge R Lewis refused the proposed amendments, struck out the discrimination claims, and dismissed the proceedings.