Summary Description:

Amendment applications to be adjudicated based upon the relative injustice or hardship caused by allowing or refusing them rather than grouping them into distinct classifications.

Background:

The claimants were foster carers.  They had cared for a child for 10 months until he was removed from their care.  They claimed unlawful deduction from wages and detriment relating to protected disclosures as they had claimed they had disclosed some health and safety concerns.

This legal saga began with the respondent denying that the claimants were workers.  In 2017 the Tribunal found that they were employees.  This was appealed.  During that appeal to the EAT, the claimants sought to amend their ET1 form which was not heard due to the appeal.  The respondent's appeal, relating to status, was dismissed.

The Tribunal requested in 2021 that the claimants submit a formal application to amend.  This was refused by the Tribunal in October and was subsequently appealed to the EAT.

Outcome:

The basis of the appeal was that the claimants referred to different categories of amendment citing Harvey on Industrial Relations.  This source was not referred to by the Tribunal and instead the amendments were viewed more generally.   After the general inquiry each of the amendments were examined specifically to determine whether they would involve substantially different areas of inquiry when compared to the original claim.   The EAT found that the Tribunal Judge had considered all of the relevant circumstances with the overarching consideration being the relative injustice and hardship in allowing or refusing the application.  Therefore, the EAT found that the Tribunal had not erred in exercising discretion.

The second issue related to the delay in bringing the amendment application.   This related to the fact that the amendment application was made in 2019 but was not heard until it was formally made in 2021.   The EAT found that the ‘delay’ between 2019 and 2021 was not considered as being a very significant factor and would not be sufficient to ground an appeal against the decision.

Practical Guidance for Employers:

This case has been a long-running saga relating to different areas of employment law and practice. This has now gone into the practice element relating to the procedural elements of the Tribunal overseeing the claims.  In this case, the EAT made it clear that there was no requirement for amendments to be classified into particular groups but rather they could be looked at generally before specifically examining the extent to which it fits into the overarching question of injustice or hardship in allowing or refusing the application.
https://assets.publishing.service.gov.uk/media/664220e9993111924d9d3345/Mr_James_Johnstone_and_Mrs_Christine_Johnstone_v_Glasgow_City_Council__2024__EAT_75.pdf

**NB This is the second running of this case. The first was the on the question of employment status. The Review of the first decision can be found here:
https://www.legal-island.com/articles/uk/case-law/2020/sep/glasgow-city-council-v-johnstone--anor-2020/