Glaucia Pereira v Methods Business And Digital Technology Limited

The Employment Appeal Tribunal allowed an appeal against an Employment Tribunal judge's refusal to permit an amendment to add complaints of protected disclosure (whistleblowing) detriment/dismissal. The EAT held that the Employment Tribunal had erred in law by failing properly to apply the balancing exercise set out in Selkent Bus Co Ltd v Moore and related authorities, and by not taking into account relevant factors including the claimant's litigant-in-person status, the nature and pleading of the alleged disclosures under section 43B(1) of the Employment Rights Act 1996, and the explanation given for delay based on new disclosure material. The matter was remitted to the Employment Tribunal for reconsideration of the amendment application and any consequential case management directions.

Background and parties: The appellant, who had applied to work for the respondent as a Technical Architect, brought claims including disability and pregnancy discrimination and breach of contract. She sought by application in May 2023 to amend her ET1 to add complaints of protected disclosure detriment/dismissal on the basis that concerns she raised during onboarding about discussing classified information without appropriate security clearance amounted to protected disclosures.

Procedural posture: Employment Judge Rayner refused the application to amend on 12 June 2023 for reasons including that the disclosures were not sufficiently identified under section 43B(1) of the Employment Rights Act 1996, that no clear explanation for delay had been given, and that allowing the amendment would prejudice the respondent and risk the fairness of a hearing listed for 3–5 July 2023. The claimant sought reconsideration (effectively an application to vary/suspend/set aside under Rule 29 Employment Tribunal Rules 2013), which was refused by email dated 26 June 2024. The appeal to the EAT was sifted and permitted to proceed on revised grounds.

Issues framed by the court:

• Whether the Employment Tribunal applied the correct legal approach and undertook the proper balancing exercise when refusing permission to amend, having regard to the Selkent factors and relevant authority.
• Whether the Employment Tribunal was right to conclude the claimant had not identified the elements of a protected disclosure under section 43B(1) and had not explained the delay in making the application.
• Whether the Employment Tribunal adequately assessed prejudice and case management considerations in the round.

Court's reasoning and conclusion: The EAT concluded that some aspects of the Employment Tribunal's reasoning were flawed. The EAT accepted that the annex the claimant said she had attached to her original ET1 was not shown to have been submitted and so the tribunal had been entitled to conclude it did not form part of the claim. However, the EAT found that the tribunal had not properly assessed other relevant matters: the claimant had been a litigant in person when applying to amend, the pleaded disclosures (between 5 and 19 October 2021) were discernible and did not suffer a fundamental pleading failure, and the claimant had offered an explanation for delay based on newly disclosed documents which the Employment Tribunal did not consider because it treated delay as unexplained. For these reasons the EAT found an error of law in the tribunal's exercise of discretion and allowed the appeal, remitting the case for reconsideration of the amendment application and further case management.

Appeal allowed. The Employment Tribunal erred in law in refusing permission to amend because it did not properly undertake the balancing exercise required when considering amendments, failed to take into account relevant matters including the claimant's litigant-in-person status and the explanation for delay based on newly disclosed documents, and mischaracterised the sufficiency of the pleaded disclosures under section 43B(1) of the Employment Rights Act 1996. The matter is remitted to the Employment Tribunal for reconsideration and further case management.

The Employment Tribunal (Employment Judge Rayner) refused the claimant's application to amend on 12 June 2023 and refused a subsequent application to vary/suspend/set aside that case management order by email dated 26 June 2024. The appeal to the Employment Appeal Tribunal was sifted (initially considered by HHJ Auerbach who found no reasonable grounds, then permitted to proceed by HHJ Beard on two revised grounds). The appeal was heard before HHJ James Tayler and the EAT allowed the appeal and remitted the matter to the Employment Tribunal. Neutral citation: [2025] EAT 55 (Case Nos EA-2023-000661-RN & EA-2023-000664-RN).