Mohammed Ayub v Ministry of Defence

When deciding an application to amend, an Employment Tribunal must balance the justice and prejudice to each party in light of all relevant circumstances. A legally correct self-direction does not cure a failure to engage with material parts of a claimant’s explanation for the timing and context of proposed allegations.

In particular, the Tribunal must address an asserted link between new allegations and existing complaints, and an explanation that disclosure of a policy or document revealed the basis for a new allegation. It may take account of additional witnesses, documents, listing consequences and apparent merits, but must assess those matters on a proper understanding of the parties’ material.

The claimant, a former RAF recruit of Pakistani origin and Muslim faith, brought claims including race discrimination concerning his training and discharge. He later sought to add two race discrimination allegations arising from his unsuccessful application to re-join the RAF: discriminatory delay and a requirement to take a fitness test not imposed on comparable white re-joiners.

At a case management preliminary hearing on 29 September 2023, the Employment Tribunal refused the amendment. It treated the allegations as new, late and weak, and referred to the additional evidence and listing consequences that might follow. The claimant appealed, contending that the Tribunal had failed to address his explanation based on documents disclosed in 2023 and the asserted connection between the new and existing allegations.

1. Appeal allowed. The Employment Tribunal erred in law in exercising its discretion to refuse the amendment application. Although it correctly directed itself by reference to Selkent and the required balancing exercise, it failed to take account of relevant and material matters.

2. On the fitness-test allegation, the Tribunal considered only the uncompleted re-joiner assessment form. It did not address the claimant’s written contention that disclosure had revealed a policy which, on his case, meant that he should not have been required to take a fitness test. That contention materially bore on both the explanation for the timing of the amendment and the apparent merits of the allegation.

3. On both proposed allegations, the Tribunal also failed to address the claimant’s assertion that they formed part of an ongoing pattern of discrimination connected with the treatment at RAF Halton already pleaded. The fact that new facts and inquiries arose did not answer that asserted connection. It was a material consideration in the amendment exercise.

4. The Tribunal was entitled to consider possible additional witnesses, documents, the risk to the listed hearing, and apparent merits. However, the assessment of merits was also affected by its failure to engage with the claimant’s material arguments. The respondent’s assertion that no record existed of the proposed comparator could be considered, but its unsupported nature was relevant to the weight to be given to it.

5. The Appeal Tribunal could not substitute a decision granting the amendment because it lacked the full material before the Employment Judge. Applying Jafri v Lincoln College [2014] EWCA Civ 449 and the remittal guidance in Sinclair Roche & Temperley v Heard [2004] IRLR 763, the application was remitted to a differently constituted Employment Tribunal.

• Employment Appeal Tribunal: Allowed the claimant’s appeal in [2024] EAT 93 and remitted the amendment application for redetermination by a different Employment Judge.
• Employment Tribunal, Bury St Edmunds: On 29 September 2023, refused the claimant’s application to amend his discrimination claim.