Glaucia Pereira v Methods Business And Digital Technology Limited

An Employment Tribunal considering an amendment must balance the injustice and hardship of allowing it against those of refusing it, having regard to all the circumstances. The factors identified in authority are not a checklist.

A refusal may be erroneous where the tribunal wrongly treats a litigant in person’s draft pleading as fundamentally deficient, overlooks an explanation for delay, or fails to assess the resulting balance of prejudice. A proposed protected-disclosure claim is not redundant merely because the claimant also advances discrimination claims: the alleged reason for the treatment remains material.

The claimant appealed against decisions of Employment Judge Rayner refusing her application to amend her Employment Tribunal claim to add complaints of protected-disclosure detriment and dismissal, and refusing to vary, suspend or set aside that order.

Her original claim concerned disability discrimination, pregnancy discrimination and breach of contract. The proposed amendment alleged that she had raised concerns about discussing client information without the required security clearance, and that difficulties with her onboarding followed those disclosures.

The central issue was whether the Employment Tribunal had lawfully exercised its discretion when refusing the amendment.

1. Appeal allowed. The Employment Tribunal erred in law when refusing the application to amend, and the matter was remitted for reconsideration.

2. The governing exercise was the balance of injustice and hardship identified in Selkent Bus Co Ltd v Moore, [1996] ICR 836. The factors there identified, including the nature and timing of an amendment and time limits, are relevant circumstances rather than a checklist.

3. The tribunal was entitled to reject the assertion that an annex had accompanied the original claim. There was no Employment Tribunal record of it, no proof of its submission, and the claimant had not advanced that assertion until the Rule 3(10) hearing.

4. However, the tribunal wrongly found a fundamental failure to plead protected disclosures. The claimant, then unrepresented, identified two disclosures in substance: concerns raised during onboarding about discussing client information without appropriate security clearance, and a repetition of those concerns to the Head of HR. Although clarification was required and the draft did not meet professional pleading standards, it sufficiently identified the alleged disclosures.

5. The tribunal also wrongly stated that no clear explanation had been given for the delay. The claimant relied on documents disclosed during preparation for the hearing which, she contended, showed that onboarding difficulties began after her concerns were raised. The tribunal did not assess that explanation’s validity. Nor did it properly assess prejudice. If protected disclosures were the reason for the treatment, existing disability and pregnancy discrimination claims did not answer that distinct allegation.

6. The successful appeal against the original refusal made it unnecessary to determine the appeal concerning the later refusal to vary, suspend or set aside the case-management order. The amendment application was remitted to the Employment Tribunal. The respondent could maintain or reconsider its objection, and case management was for the tribunal on remission.

• Employment Appeal Tribunal: allowed the appeal and remitted the amendment application to the Employment Tribunal: [2025] EAT 55.
• Employment Tribunal: Employment Judge Rayner refused the claimant's application to amend on 12 June 2023 and later refused to vary, suspend or set aside that case-management order.