Jerzy Lawrynowicz v Bidvest Noonan (UK) Limited

An Employment Tribunal must give effect to a binding determination made by the Employment Appeal Tribunal on an earlier appeal in the same proceedings. It cannot reconsider the proper characterisation of a proposed amendment once that issue has been determined.

When exercising discretion on amendment or strike-out, the tribunal must assess the real causes of delay and actual prejudice. It must not treat time consumed by a successful appeal as unexplained delay, nor find witness prejudice without evidence. A claim should not be struck out for having no reasonable prospect of success where the tribunal has recognised that further specification is required but has not afforded the claimant an opportunity to provide it.

The appellant, a former security officer, initially brought Employment Tribunal claims concerning personal injury, lost wages and unpaid income tax. The proceedings acquired a lengthy procedural history after he sought to amend them.

An earlier appeal succeeded in [2024] EAT 13. The EAT set aside an Employment Tribunal refusal of amendment and strike-out orders, and remitted the case. On remittal, the Employment Tribunal again refused amendment and dismissed the claim. It stated that, if amendment had been allowed, the amended claims would have been struck out for inability to have a fair hearing and for having no reasonable prospect of success.

The appellant appealed on the basis that the tribunal had recharacterised the amendment contrary to the earlier EAT ruling, and had erred in its approach to amendment and strike-out.

1. Appeal allowed. The Employment Tribunal's orders were set aside. Its earlier refusal of amendment had been overturned by the EAT, which had determined that the proposed material was not properly characterised as entirely new factual allegations changing the basis of the existing claims. The tribunal on remittal was not entitled to reconsider that issue and erred in accepting the contrary submission.

2. The discretion to permit amendment requires all relevant factors to be considered and the injustice and hardship to each party to be balanced. The tribunal's assessment of prejudice was flawed. It failed to account for the substantial period occupied by the appellant's successful earlier appeal. It also treated counsel's assertion that the respondent no longer had relevant witnesses as sufficient evidence. There was no evidence that witnesses could not be traced or were unwilling to give evidence.

3. The proposed strike-out for inability to have a fair hearing under rule 37(1)(e) rested on the same erroneous treatment of delay and witness availability. It was therefore misconceived. The proposed strike-out under rule 37(1)(a) was also erroneous. A strike-out is draconian and rare. The tribunal had accepted that further specification would be required if amendment were allowed, but could not fairly conclude that the claims had no reasonable prospect of success without first allowing the appellant the opportunity to provide that specification.

4. Exercising the tribunal's powers under section 35(1)(a) of the Employment Tribunals Act 1996, and applying the overriding objective, the EAT determined the amendment application itself. In light of the earlier EAT ruling, the appellant's health and language difficulties, and the absence of actual witness prejudice, amendment was allowed. The EAT did not determine whether the amended claims were out of time. That issue, and the necessary further specification, were remitted to a differently constituted Employment Tribunal.

• Employment Appeal Tribunal: This appeal was allowed: [2025] EAT 177.
• Employment Tribunal: On 13 September 2024, the tribunal refused amendment and dismissed the claim. It indicated that, if amendment had been allowed, it would have struck out the amended claims.
• Employment Appeal Tribunal: An earlier appeal was allowed in [2024] EAT 13. The EAT set aside the Employment Tribunal's judgment of 28 April 2022, which had refused amendment and struck out the claims, and remitted the case.