Samuel Utere v Huxlow Science Academy

An Employment Tribunal determining an amendment application must consider all the circumstances and balance the injustice or hardship of allowing it against that of refusing it. The Selkent considerations are guidance, not a checklist.

Where an amendment advances a new discrimination ground, introduces new allegations and perpetrators, and would require substantially different factual and legal inquiries, it is not merely a relabelling exercise. The Tribunal may take account of limitation, unexplained delay, prior opportunities to clarify the claim, practical prejudice to the respondent, and the consequences for the claimant. An appellate court will not interfere with a permissible discretionary case-management decision that discloses no error of law.

The claimant, a newly qualified teacher, brought proceedings following his dismissal. His ET1 identified race discrimination. At a later preliminary hearing he withdrew that complaint and applied to amend to allege direct discrimination because of sex and philosophical belief.

The proposed amendment introduced sex discrimination for the first time, relied on six female comparators, and added eight allegations concerning events between November 2019 and April 2020. Employment Judge Robinson at Watford refused the amendment application. Only one appeal ground proceeded: whether the Tribunal had sufficiently considered whether substituting a direct sex discrimination complaint for the race complaint would materially alter the factual scope of the case.

1. Appeal dismissed. The Employment Judge’s refusal of permission to amend disclosed no error of law.
2. The Judge correctly directed himself on amendment applications under Rule 29 of the Employment Tribunal Rules of Procedure 2013. He applied the guidance in Selkent Bus Co v Moore [1996] IRLR 661, while recognising that its factors were not a tick-box exercise. The overriding task was to consider all the circumstances and balance the competing hardship and prejudice.
3. The finding that the proposed sex discrimination complaint was a new claim, rather than a minor amendment or relabelling of the race complaint, was plainly open to the Tribunal. It had never previously been raised. The amendment also added eight factual allegations, extended the temporal scope to November 2019, and introduced allegations against a further alleged perpetrator. It therefore entailed considerably different factual and legal inquiries from the original claim, consistently with Abercrombie and others v Aga Rangemasters Ltd [2014] ICR 209.
4. The Tribunal was entitled to find that the new claims were out of time and that no cogent explanation had been given for the delay or change of case. The claimant had been represented and had had several prior opportunities, including three preliminary hearings, to state the basis of his discrimination claim.
5. The Tribunal properly weighed the practical consequences. Refusal ended the remaining claim after withdrawal of race discrimination. Allowing the amendment, however, would require the respondent to defend a new sex discrimination case, investigate new factual allegations and obtain further evidence. Its conclusion that the balance favoured the respondent was permissible. The Employment Appeal Tribunal did not infer that the Tribunal had also found the sex discrimination claim to lack merit; that finding had been made only in relation to philosophical belief discrimination.

• Employment Appeal Tribunal: Appeal dismissed in [2025] EAT 28. The Tribunal’s refusal of the amendment application was upheld.
• Employment Tribunal (Watford): On 10 November 2022, Employment Judge Robinson dismissed the race discrimination complaint on withdrawal and refused permission to amend to add direct sex and philosophical-belief discrimination claims.