EAT PRACTICE AND PROCEDURE – Amendment
Although the Claimant had apparently considered he might have been subjected to detriment and subsequently dismissed for making protected disclosures, when he lodged his ET claim he did not include such a claim but made complaints of unfair dismissal (under section 98 Employment Rights Act 1996) and unlawful race discrimination (under the Equality Act 2010). The claim referred to the Data Protection Act but this was in respect of an alleged violation falling outside the jurisdiction of the ET and was struck out at the first Preliminary Hearing. At that hearing the Claimant raised the possibility of protected disclosure claims of detriment and dismissal and it was directed that any application to amend should be considered at a further Preliminary Hearing. That first took place before EJ Stewart, when the application was refused. That decision was set aside on appeal and the matter remitted for fresh consideration. At the remitted hearing, before EJ Lewzey, the application was again refused, the ET identifying that the amendment raised new causes of action and new issues, specifically as to whether the Claimant had made any protected disclosures, whether any disclosures were in the public interest and whether he had reasonably believed there was a breach of a legal obligation. These questions would require the Respondent to adduce significant further evidence and the ET concluded the balance of prejudice meant it should refuse the application. The Claimant appealed.
Held: dismissing the appeal. The ET had permissibly considered the application to amend was to include a new cause of action. It had then gone on to determine whether the application should be allowed, having regard to the guidance laid down in Selkent Bus Co Ltd v Moore  IRLR 661. Doing so, the ET had regard to that which was relevant and not to any irrelevant matter. It had concluded that the balance of prejudice meant the application should be refused. The Claimant had not met the high test to show that was a perverse conclusion.
 UKEAT 0178 – 17 – 1109
England and Wales
Updated: 02 April 2022; Ref: scu.601893