C Mileham v Zeus Limestone Ltd (T/A Rovic Tiles) (In Creditors’ Voluntary Liquidation) & Anor

When deciding whether to amend a timely employment claim to add a respondent, an Employment Tribunal must conduct a balancing exercise. It must consider all the circumstances, including the respective injustice or hardship caused by allowing or refusing the amendment.

A short case-management decision is permissible, but its reasons must show that the material prejudice to both sides has been considered. It is insufficient to identify unexplained prejudice to the proposed respondent while omitting the claimant’s expressly advanced prejudice. Timing, including an earlier case-management hearing, may be relevant but is not a substitute for that assessment.

The Claimant presented claims for disability discrimination and unfair dismissal against his employer. Although the particulars referred to Mr Doe, the claim named only the employer as respondent.

After the employer entered creditors’ voluntary liquidation, the Claimant promptly obtained an Early Conciliation certificate concerning Mr Doe and applied under Rule 29 to add him as a second respondent. Employment Judge Wright refused the application on 14 March 2024, referring to delay and prejudice to Mr Doe.

The Claimant appealed, contending that the Employment Judge had failed to assess the prejudice to him, had given inadequate reasons for the asserted prejudice to Mr Doe, and had wrongly treated delay and monitoring of the employer’s solvency as decisive considerations.

1. Appeal allowed. The refusal to add Mr Doe was unsafe and was set aside.

2. The essential question was whether the Employment Judge had considered the relevant factors in a balancing exercise. A decision of this kind may properly be brief, particularly where the application is brief. However, it must reveal a proper assessment of the respective prejudice caused by allowing or refusing the amendment.

3. The decision expressly referred to prejudice to Mr Doe but neither identified its nature nor referred to the Claimant’s asserted hardship if he were left with an unenforceable judgment against an insolvent employer. That omission was material. Mr Doe had made no representations identifying prejudice, whereas the Claimant had expressly advanced his potential prejudice.

4. The reasons were also inadequate in the Meek sense. They did not explain what prejudice Mr Doe would suffer beyond being added as a party. The Employment Judge could consider other forms of prejudice on a fresh determination, but had not explained them in the decision under appeal.

5. It was permissible to take account of the timing of the application, including the earlier case-management hearing. The EAT doubted whether criticism of the Claimant for failing to monitor the employer’s financial viability was realistic, but that point was not material to the error of law.

6. The application was remitted to a different Employment Judge. The balance of prejudice was intensely fact-specific, and the EAT could not fairly conclude that there was only one possible outcome while potential prejudice to Mr Doe remained unexplored.

• Employment Appeal Tribunal: Allowed the Claimant’s appeal and set aside the refusal to add Mr Doe as a respondent: [2025] EAT 105.
• Employment Tribunal: Employment Judge Wright refused the application to add Mr Doe as a respondent on 14 March 2024.