Jerzy Lawrynowicz v Bidvest Noonan (UK) Limited

When deciding an application to amend an Employment Tribunal claim, the Tribunal must consider the original claim form and subsequent material fairly. It must distinguish genuinely new factual allegations from a new legal label applied to facts already pleaded. An erroneous characterisation of a proposed amendment as wholly new can distort the Selkent balance of hardship and amount to an error of law.

A strike-out for non-compliance requires application of the stringent Blockbuster test. The Tribunal must address whether there was deliberate and persistent disregard of procedural requirements, or whether the conduct made a fair trial impossible.

The claimant brought an Employment Tribunal claim arising from events at his workplace, including his wish to wear protective equipment, alleged treatment by management, and his subsequent resignation. His ET1 used non-legal language and referred to personal injury, wage loss and unpaid tax. At later preliminary hearings, he sought to advance claims of constructive unfair dismissal and disability discrimination.

Employment Judge Hosie refused the amendment and struck out the claim in a judgment dated 28 April 2022. The claimant appealed. The central issues were whether the proposed claims had wrongly been treated as entirely new claims, and whether the Tribunal had applied the correct test before striking out the proceedings.

1. Appeal allowed. The EAT set aside the Employment Tribunal’s refusal of the amendment and its strike-out orders, and remitted the case for fresh consideration.

2. The earlier preliminary observations and directions did not make it immutable that the claimant’s proposed constructive dismissal and discrimination claims were wholly new claims. The directions were substantially advisory or procedural. Objectively, it was difficult to identify a distinct earlier decision that the unrepresented claimant ought to have appealed.

3. The Tribunal correctly identified the principles in Selkent Bus Co v Moore, [1996] ICR 836, but erred in their application. It focused on an earlier conclusion that the claims were new and failed to give full regard to the original ET1 and subsequent correspondence. The ET1 contained a narrative of health concerns, the refusal of permission to wear a mask, alleged aggression and lack of support, mental breakdown, and resignation. The later material could therefore be a further legal label or amplification of facts already pleaded, rather than entirely new factual allegations. That error skewed the balancing exercise on amendment.

4. The strike-out ground also succeeded. The Tribunal did not explicitly or implicitly apply the test in Blockbuster Entertainment Ltd v James, [2006] IRLR 630. It did not establish that there had been deliberate and persistent disregard of procedural steps, or conduct making a fair trial impossible. It was also unclear why it expressed a view on strike-out under Rule 37(1)(c) when no application under that provision appeared to have been made.

5. The Tribunal must reconsider the amendment, time-limit and delay issues, the remaining Selkent principles, disability status, and any renewed strike-out application. The remittal may be to a differently constituted Tribunal.

• Employment Appeal Tribunal: allowed the appeal in [2024] EAT 13, set aside the refusal of amendment and strike-out orders, and remitted the matter.
• Employment Tribunal: in a judgment dated 28 April 2022, refused the claimant’s application to amend and struck out the claim.