Paul Thompson v Devon and Somerset Fire and Rescue Service

An Employment Tribunal must read a litigant in person’s claim form with appropriate latitude, while retaining the claim form and response as the documents that define the case. A list of issues assists case management but is not a pleading.

On an amendment application, the Tribunal must identify the amendments sought and balance the injustice and hardship of allowing or refusing each one. The Selkent factors assist that evaluative exercise but are not a checklist. A perceived procedural defect cannot determine the application where there has been material compliance and the Tribunal has therefore failed to undertake the required balance of justice.

The claimant, a firefighter, brought disability and sex discrimination claims arising from the respondent’s handling of disciplinary proceedings and related sick pay. His original claim form, supported by a trade-union summary, was discursive. After case-management hearings, he was ordered to serve a single proposed amended pleading identifying existing claims and proposed new claims.

Employment Judge Roper refused permission to amend. The Judge considered that the claimant had not complied with that order, that the application lacked clarity, and that the balance of prejudice favoured refusal. The claimant appealed, alleging errors in that conclusion and in the amendment exercise, a failure to permit submissions, and apparent bias.

1. Appeal allowed and remitted. The Employment Judge’s conclusion that the claimant had not materially complied with Employment Judge Goraj’s order was outside the range of reasonable disagreement. The proposed amended particulars were served on time. They annexed and numbered the original particulars, identified the claims said already to have been pleaded, identified those accepted to require amendment, and gave dates and alleged decision-makers.

2. Although the respondent could oppose the amendment, the task of determining it was not as unclear or burdensome as had been held. The Tribunal’s apparent preference for amendments marked directly onto the original, already discursive document was not required by the order and would not necessarily have improved clarity.

3. The Judge treated the perceived non-compliance as determinative. By stating that the Selkent factors could not be considered, the Judge failed to conduct the necessary balancing exercise between the injustice and hardship of allowing or refusing the amendments. The factors identified in Selkent are aids to, rather than a substitute for, that overall assessment. Where several amendments are sought, the Tribunal may allow, refuse, or require clarification of each amendment separately.

4. The remaining grounds did not require determination. Had they arisen, the Judge had not prevented submissions on the amendment application, and the robust language used at a preliminary hearing did not create an appearance of pre-judgment or apparent bias. Nevertheless, the language was sufficiently robust that the application should be remitted to a differently constituted Employment Tribunal for a fresh determination.

• Employment Appeal Tribunal: Allowed the appeal against Employment Judge Roper’s refusal of permission to amend, sent to the parties on 14 August 2023, and remitted the amendment application to a differently constituted Employment Tribunal.
• Employment Tribunal: Employment Judge Goraj had directed the claimant to serve a single proposed amended pleading, distinguishing existing claims from proposed amendments.