James Johnstone & Anor v Glasgow City Council

The appellants were foster carers and employees who brought claims that included unlawful detriment on account of making disclosures and health and safety concerns under sections 44 and 47B of the Employment Rights Act 1996. The Employment Judge allowed some proposed amendments to the pleadings and refused others; the appellants appealed against the refusal of a subset of those proposed amendments (referred to as Amendment 1).

The Employment Appeal Tribunal dismissed the appeal. The EAT held that the decision whether to allow an amendment is a matter of judicial discretion and that the Employment Judge had identified and applied the correct legal test, had considered the relevant Selkent/Cocking/Vaughan principles (including prejudice, delay and the practical consequences of amendment), had not taken irrelevant matters into account and had not failed to take relevant matters into account. The EAT concluded that the Employment Judge’s decision was open to a reasonable tribunal and therefore not susceptible to successful appellate challenge.

This appeal arises from a preliminary Employment Tribunal ruling on applications by the claimants, who are foster carers employed by the respondent, to amend their ET1 pleadings. The original claims, lodged in June 2016, included allegations of unlawful detriment related to protected disclosures and health and safety concerns under the Employment Rights Act 1996. The Tribunal previously determined, at a preliminary hearing, that the claimants were employees and that determination was upheld on an earlier appeal to the Employment Appeal Tribunal; the cases were remitted to the Employment Tribunal.

• Nature of the application: the claimants sought to amend their ET1s to add factual averments and additional allegations of detriment (notably the amendments grouped as "Amendment 1").
• Procedural posture: the Employment Judge (EJ McManus) heard the amendment application on 14 September 2021 and, by decision dated 4 October 2021, allowed some proposed amendments and refused others. The claimants appealed to the Employment Appeal Tribunal limited to specific paragraphs of the amended Papers Apart.
• Issues before the court: whether the Employment Judge erred in law or was plainly wrong in refusing parts of the proposed amendments, including (a) whether the judge misapplied legal tests by treating the proposals as unconnected to the existing claim, (b) whether she failed to assess whether the amendments were 'closely connected' or 'linked' to the original pleadings, and (c) whether she gave excessive weight to an earlier December 2019 amendment application when considering delay and resources.

The EAT set out the governing approach to applications to amend: the Employment Tribunal exercises a broad case management discretion informed by authorities such as Cocking, Selkent, Vaughan and Abercrombie. The correct focus is on practical consequences, relative injustice and hardship, and whether the proposed amendment would involve substantially different areas of inquiry rather than formal classification alone. The Employment Judge was found to have taken into account the relevant factors (nature of the amendment, timing, delay, prejudice, costs and the lack of evidence to explain delay or limited resources), and to have applied the requisite balancing exercise. The EAT rejected arguments of misclassification and irrationality because the Employment Judge’s reasoning, read as a whole, demonstrated that she had applied the correct principles and reached a decision open to a reasonable tribunal.

Appeal dismissed. The Employment Appeal Tribunal held that the Employment Judge had properly exercised her discretion under the applicable case management principles (including Selkent, Cocking and Vaughan), had considered the relevant factors (nature and timing of amendments, prejudice and delay, and the lack of evidence explaining delay or limited resources) and had not acted irrationally or taken irrelevant factors into account. The refusal in part to allow the amendments was therefore a decision open to a reasonable tribunal.

Employment Tribunal preliminary hearing judgment 1 August 2017 on employee status; appellant employment status upheld and respondents' appeal dismissed by the Employment Appeal Tribunal (judgment promulgated 27 August 2020) with remittal to the Employment Tribunal. Employment Judge McManus refused, in part, the claimants' applications to amend by decision of 4 October 2021. The claimants appealed to the Employment Appeal Tribunal, resulting in this judgment [2024] EAT 75.