James Johnstone & Anor v Glasgow City Council

An employment tribunal's decision whether to permit an amendment is discretionary. It must consider all the circumstances, with the paramount consideration being the relative injustice and hardship caused by allowing or refusing the amendment.

Formal categorisation of an amendment is not determinative. The tribunal should consider the amendment's substance, including whether it introduces substantially different areas of inquiry, the delay and its practical consequences, limitation issues, costs, and the importance of the amendment to the claim or defence.

An appeal tribunal will interfere only for an error of principle, failure to consider relevant matters, reliance on irrelevant matters, or a conclusion no reasonable tribunal could reach. A judgment must be read fairly and as a whole.

The claimants, husband and wife, were foster carers employed by the respondent. Their claims concerned alleged detriments for protected disclosures and health and safety concerns under the Employment Rights Act 1996, arising from their care of a child.

After an earlier employment-status issue had been resolved and the claims remitted to the Employment Tribunal, the claimants sought to amend their claims. EJ McManus allowed some amendments but refused part of their first proposed category. The claimants appealed the refusal in respect of specified factual allegations and associated detriments.

The central issue was whether the Employment Judge had erred in exercising the discretion to refuse those amendments, including by treating them as unconnected new claims or by giving undue weight to earlier and later amendment applications.

1. Appeal dismissed. The Employment Judge had correctly exercised the discretionary power to refuse the disputed amendments.

2. The applicable approach was to consider all the circumstances, with particular regard to the relative injustice and hardship caused by allowing or refusing an amendment. The nature of an amendment is relevant, but formal classifications of amendments are not. The material inquiry is whether the new pleading would involve substantially different factual and legal areas of inquiry from the original claim.

3. Read fairly and as a whole, the Employment Judge had not classified all disputed amendments as wholly unconnected new claims. She distinguished between restatements or amplification of existing claims, relabelling, and new matters. She considered the nature of the amendments, delay, the effect of delay on investigation, additional costs and procedure, and the parties' representation. That was the required balancing exercise.

4. The Employment Judge had also considered the claimants' submission that limited resources explained the difference between the amendment applications made in December 2019 and July 2021. She was entitled to find that the submission lacked evidential support and to treat the delay and its consequences as a very significant factor.

5. No error of principle, omission of a relevant consideration, reliance on an irrelevant consideration, or perversity was established. The conclusions reached were open to a properly directed tribunal.

• Employment Appeal Tribunal: Appeal dismissed: [2024] EAT 75.

• Employment Tribunal: EJ McManus, by decision dated 4 October 2021, allowed some proposed amendments but refused others. The present appeal challenged part of that refusal.

• Employment Appeal Tribunal: An earlier appeal by the respondent from the Employment Tribunal's employment-status decision was dismissed in a judgment promulgated on 27 August 2020, and the claims were remitted to the Employment Tribunal.

• Employment Tribunal: By judgment promulgated on 1 August 2017, the claimants were held to be employees of the respondent.