G Treadwell v Barton Turns Development Ltd

The Employment Appeal Tribunal held that an employment tribunal should have permitted an amendment to plead a detriment under section 47B of the Employment Rights Act 1996 in respect of dismissal by a co‑worker where the employee seeks to rely on vicarious liability against the employer. The court followed the Court of Appeal in Timis and Sage v Osipov [2018] EWCA Civ 2321, which permits a claim against an individual co‑worker under section 47B(1A) for the detriment of dismissal and a vicarious liability claim against the employer under section 47B(1B), noting that section 47B(2) only excludes a claim against the employer in respect of its own act of dismissal.

The tribunal was wrong to refuse the amendment to plead that the dismissing director subjected the claimant to a detriment. The EAT was bound by Osipov and therefore allowed the amendment to paragraph 13. The cross‑appeal challenging the grants of other amendments was dismissed because those amendments were correctly treated as re‑labelling existing pleaded facts rather than substantial new matters.

Background and parties:

• The appellant commenced employment on 20 January 2022 as an events manager and was dismissed on 28 June 2022 by a director, Ms Wyss. The claimant alleged that the true reason for dismissal was that she had made protected disclosures and brought claims of automatic unfair dismissal under section 103A of the Employment Rights Act 1996, alternatively unfair dismissal under section 98 and/or section 101C.
• The ET1 was filed on 23 November 2022. Shortly before a preliminary hearing the claimant sought amendments to add single‑sentence allegations that particular acts or omissions by Ms Wyss (including the dismissal) amounted to detriments and to plead reliance on section 47B.

Procedural history:

• The employment judge allowed amendments adding detriment allegations in paragraphs 9 and 12 but refused the proposed paragraph 13 which alleged that dismissal by Ms Wyss subjected the claimant to a detriment. The judge relied on a textual reading of section 47B(2) and declined to follow the reasoning in Osipov.
• The claimant appealed to the EAT against refusal of paragraph 13; the respondent cross‑appealed the grants of the other amendments. The EAT permitted the appeals to be heard.

Issues framed:

1. Whether the employment judge erred in refusing the amendment to plead that dismissal by the director amounted to a detriment under section 47B;
2. Whether the granted amendments were properly characterised as mere re‑labelling of already pleaded facts or were substantial changes warranting refusal.

Court’s reasoning:

• The EAT held that it was bound by the Court of Appeal decision in Timis and Sage v Osipov [2018] EWCA Civ 2321, which allows an employee to bring a section 47B(1A) claim against an individual co‑worker for the detriment of dismissal and to bring a vicarious liability claim against the employer under section 47B(1B); section 47B(2) only excludes a claim against the employer in respect of the employer's own act of dismissal.
• The EAT concluded that the employment judge had erred in law in refusing the paragraph 13 amendment on the basis of section 47B(2). Accordingly, under the principles in Jafri v Lincoln College 2014 EWCA Civ 449 the EAT ordered that the proposed amendment to paragraph 13 be allowed.
• As to the cross‑appeal, the EAT concluded that the amendments allowed to paragraphs 9 and 12 were re‑labelling of pre‑existing pleaded facts, caused no prejudice, and were proportionate; the cross‑appeal was therefore dismissed.

Relief sought and disposition:

• The claimant sought permission to amend her pleaded case to add detriment allegations and reliance on section 47B. The EAT allowed the amendment relating to dismissal and dismissed the respondent’s cross‑appeal.

Subsidiary points and practical implications:

• The judge observed that allowing the section 47B pleading may affect the quantification of injury to feelings but does not alter the core factual issues. The EAT suggested that, if necessary, remedy hearing timing could await the outcome of the pending appeal in Wicked Vision Ltd v Rice.

Appeal allowed in part and cross‑appeal dismissed. The EAT held that the employment judge erred in law in refusing the amendment to plead that the dismissal by the director amounted to a detriment under section 47B of the Employment Rights Act 1996; the court was bound by the Court of Appeal decision in Timis and Sage v Osipov [2018] EWCA Civ 2321 which permits a section 47B(1A) claim against an individual co‑worker and a vicarious liability claim against the employer under section 47B(1B). The amendments to paragraphs 9 and 12 had been correctly treated as re‑labelling and the cross‑appeal against those grants was dismissed.

The claimant initially applied to amend pleadings in the Employment Tribunal; the tribunal allowed amendments to paragraphs 9 and 12 but refused paragraph 13 (the dismissal‑as‑detriment amendment). The claimant appealed to the Employment Appeal Tribunal (this judgment: [2024] EAT 137), which allowed the appeal in relation to paragraph 13 and dismissed the respondent's cross‑appeal. The decision applies and confirms the approach in Timis and Sage v Osipov [2018] EWCA Civ 2321 and engages with the EAT decision in Wicked Vision Ltd v Rice [2024] ICR 675.