The Claimant’s first ground of appeal was misconceived insofar as it was argued that it only related to a case management order to alter the list of issues. The case management order sought required the ET to make prior conclusions as to whether an amendment ought to be allowed and whether a strike out application should be granted. Any application to make a change to the ET1 or attached documents should be considered an application to amend. The label ‘amendment’ is not fundamental, it is the exercise of judicial discretion in relation to the amendment application that it requires that is important.
The Employment Judge, as part of her decision to refuse an amendment application, took account of a factual matter (when the Claimant became aware of a fact relied on for the amendment) on a potentially erroneous basis and drew a conclusion as to that fact without hearing evidence or submissions on that fact . The decision was therefore made failing to take account of a matter which should have been considered. The decision on amendment did not admit of only one outcome and as such remitting the matter was appropriate. There were no reasons as to why that could not be before the same Employment Judge.
The final ground was not considered as it would involve drawing conclusions which might have an influence on the amendment decision remitted.
Citations:
[2022] EAT 21
Links:
Jurisdiction:
England and Wales
Employment
Updated: 18 August 2022; Ref: scu.679132