Vaughan v Modality Partnership

An application to amend in Employment Tribunal proceedings requires a balancing of the relative injustice and hardship caused by allowing and refusing the amendment. The familiar Selkent factors are aids to that exercise, not a checklist or separate test.

The parties should identify the practical consequences of each outcome. Relevant matters may include whether the amendment is needed to advance an important case, limitation, delay, additional factual inquiry, fading memories and whether costs can cure any prejudice. An appellate tribunal will not interfere with a permissible case-management decision merely because the reasons are brief or might have been fuller.

The claimant brought whistleblowing claims for detriment and automatic unfair dismissal. On what had been intended to be the first day of a final hearing, she orally sought to amend her claim to add two alleged protected disclosures.

The Employment Judge refused the amendment. The judge treated it as introducing new complaints, noted that it was substantially out of time, had been made late without prior notice, and would require the respondent to revise its response and evidence. The claimant appealed, contending that the Employment Judge had failed properly to balance the injustice and hardship of allowing and refusing the amendment.

The central issue was whether the refusal disclosed an error of law in the application of the amendment principles.

1. Appeal dismissed. The Employment Judge had directed herself correctly and reached a permissible case-management decision in refusing the amendment.

2. The governing exercise was the balance of injustice and hardship identified in Selkent Bus Co Ltd v Moore, [1996] ICR 836. Its factors—the nature of the amendment, limitation, and the timing and manner of the application—were not a checklist. They were relevant considerations in the overriding practical assessment of the consequences of allowing or refusing the amendment.

3. On a fair reading of the brief reasons, the Employment Judge had undertaken that balance. She expressly referred to it, considered the respondent's prejudice, and had recorded the submission that refusal would cause the claimant limited prejudice because the existing detriments were already pleaded. No specific practical prejudice to the claimant had been advanced, such as evidence that either proposed disclosure was especially important to causation. The appellate tribunal should not supply missing reasoning in a deficient decision, but nor should it conduct a fussy or hypercritical reading of an otherwise adequate decision.

4. The Employment Judge was entitled to regard the proposed disclosures as new complaints, substantially out of time, and brought after ample earlier opportunity to amend. The postponement meant that the respondent could respond, but did not remove the prejudice of late amendment, including the need to amend pleadings and witness evidence and the risk of fading memories. Costs could not cure the latter prejudice.

5. The further factual inquiry arising from the new disclosures was not treated as decisive. The principal permissible reasons for refusal were the lateness of the application, absence of a satisfactory explanation, limitation, and the resulting prejudice. The claimant had not established an error of law warranting appellate intervention.

• Employment Appeal Tribunal: appeal dismissed; the refusal of permission to amend was upheld.
• Employment Tribunal, London South: Employment Judge Ferguson refused an oral application to amend the whistleblowing claim to add two alleged protected disclosures.