CX v Secretary of State for Justice

On an application to amend an employment claim, the tribunal must assess the amendment’s practical substance, rather than apply rigid formal categories. It must consider all the circumstances and balance the injustice and hardship of allowing or refusing it.

A proposed disability-discrimination claim is not necessarily a mere relabelling because some facts overlap with the original pleading. It may materially enlarge the factual and legal enquiry by introducing issues of disability, employer knowledge, causation, disadvantage, disclosure and evidence. The tribunal may also consider the litigation’s stage, the adequacy of the explanation for delay, and the distinct prejudice to each party. It must recognise the claimant’s loss of the opportunity to advance an additional discrimination complaint, including declaratory relief.

The claimant, a former prison officer, presented claims including sex and belief discrimination, victimisation and whistleblowing detriment and dismissal. Following disclosure, she sought to amend her claim to add disability-discrimination claims based on depression and anxiety, including discrimination arising from disability and failure to make reasonable adjustments.

The Employment Tribunal refused the amendment. It concluded that the proposed claims were wholly new, substantially out of time, insufficiently promptly advanced after disclosure, and would cause material prejudice to the respondent through additional disclosure, witnesses and hearing time. The claimant appealed, alleging errors in the assessment of relabelling, delay, prior hearings and the prejudice caused by losing a disability-discrimination declaration.

1. Appeal dismissed. The Employment Tribunal made no error of law in refusing permission to amend.

2. The governing approach to amendment applications requires an assessment of all circumstances and a balance of hardship and injustice. The illustrative categories in Selkent are not rigid. The material inquiry is the extent to which the proposed pleading would introduce substantially different factual and legal enquiries: Abercrombie supports that practical focus.

3. The tribunal was entitled to find that the proposed claims were not a mere relabelling. Although the original claim referred to absence and failure to meet targets, the new claims relied on distinct alleged consequences of disability, performance criticisms, provisions, criteria or practices, and substantial disadvantage. They also introduced issues whether the claimant had a long-term disability, when the respondent knew or ought to have known of it, and the causal links between disability, absence, performance and treatment.

4. The tribunal was entitled to treat the amendment as materially enlarging the litigation. It could properly take account of further medical disclosure, additional witness evidence, possible preliminary determination of disability, fading memories, cost and extra hearing time.

5. There was no failure to consider, or adequately explain the treatment of, the claimant’s explanation for delay after disclosure. The reasons showed that the tribunal considered her personal circumstances and work on evidence, while finding that they did not provide a good reason for the delay in the circumstances.

6. The tribunal did not hold the claimant’s earlier failure to plead disability discrimination against her despite accepting that she had not understood that mental ill health could be a disability. It permissibly considered the earlier hearings and the fact that her prior factual case had not advanced treatment as arising from a pre-existing, long-term mental-health vulnerability.

7. Finally, the tribunal did consider the non-financial prejudice of refusing the amendment. It recognised that exclusion of an asserted discriminatory factor was an injustice, but was entitled to find that the amendment was not necessary to advance the existing claims and that those claims could provide the relevant compensatory heads of loss if established.

• Employment Appeal Tribunal: dismissed the claimant’s appeal from the Employment Tribunal’s refusal of permission to amend her claim.
• Employment Tribunal: EJ Shastri-Hurst refused permission to add claims under section 15 and sections 20–21 of the EqA.