L Furbacher v London Borough of Barking and Dagenham Council

When reviewing refusal of an amendment, the EAT may intervene where the tribunal mischaracterises the proposed change and assesses prejudice without sufficient regard to the existing pleadings, the stage of the case and the actual additional burden. Close factual overlap and common witnesses may make an amendment less significant and less prejudicial than the tribunal concluded. Where the record is sufficient, the EAT may decide the amendment application itself, particularly where further delay has already accrued.

Ms Furbacher, employed by Deco UK Limited, was assigned for about 15 months to the London Borough of Barking and Dagenham Council’s Homes for Ukraine project. She brought claims alleging detriment for protected disclosures and automatic unfair dismissal. About six weeks after the Council presented its ET3, she applied to amend her claims, including by adding termination of her agency engagement and a further oral disclosure allegation. Employment Judge Shaw refused the application on 16 December 2024, treating the amendments as new, major and late, and finding prejudice to the Council. The EAT considered whether the tribunal had mischaracterised the amendments and adequately balanced prejudice. It allowed the appeal and decided the amendment application itself.

1. Appeal allowed. It is unusual for the EAT to overturn a decision on amendment because the matter is largely within the Employment Tribunal’s discretion. Here, however, the tribunal misdirected itself by treating the proposed changes as major amendments made at a late stage. The EAT also held that the conclusion on prejudice was perverse in light of the limited difference between the existing claim and the amendments.

2. The proposed oral disclosure allegation closely tracked existing pleaded allegations about a sponsor’s involvement in illicit activities and the claimant’s reports of concerns to management. The application had been made shortly after the Council’s ET3. The EAT considered that the tribunal had overstated the likely need for further investigation, disclosure and witness preparation: the relevant witness was already common to both versions of the claim and was to be called at trial. Little additional hearing time or cost was apparent. The tribunal’s reasoning also suggested that it was disciplining the claimant for her solicitors’ earlier pleading choices.

3. The EAT had regard to the amendment guidance in Selkent Bus v Moore [1996] IRLR 661, at paragraphs 21–24, and Vaughan v Modality Partnership [2021] IRLR 97. Applying that guidance to the pleaded allegations and the practical prejudice identified, it concluded that refusal of the amendments could not stand.

4. The EAT had the information necessary to determine the application and, given the delays already in the case, allowed the amendments itself rather than remitting the matter for redetermination.

• Employment Appeal Tribunal — [2026] EAT 117 . Allowed the appeal, set aside the refusal of the amendment application and allowed the amendments itself.
• Employment Tribunal — Employment Judge Shaw refused the claimant’s amendment application on 16 December 2024. The EAT overturned that decision.