The claimant was employed as a Field Services Engineer by the respondent in August 2014.   A dispute arose about the geographical scope of his duties with the claimant contending that it was to be within the M25 area, and the respondent stating it was wider than that.  The reason that this was an issue was due to the disability of the claimant as he stated that he suffered from anxiety which was exacerbated when driving on motorways.   This was a preliminary hearing on interlocutory issues at which the Judge outlined that the question of disability was disputed and would be dealt with at a full hearing.

The claimant was dismissed for gross misconduct in December 2017 and in January 2018 he lodged an ET1 claiming disability discrimination.  The claimant then lodged a second ET1 in February 2018 which was factually the same but also included unfair dismissal.  Following legal advice in September 2018, the claimant wrote to the Tribunal with a view to having additional complaints added to his case.  This included wrongful dismissal, holiday pay and victimisation.  The ET refused the application to amend the claim citing that the proposed amendments had little to no link to the facts that were contained in the original claim form.   The claimant appealed this decision to the EAT.

The EAT referred to the decision in Selkent Bus Company v Moore [1996] where it was held that there are a non-exhaustive list of factors that have to be considered.  This is with a view to balancing the interests of justice with the relative hardship that may be faced by the respondent.   The claimant argued that at the ET there was no evaluation of the relative hardship that would have or would not have been faced by the respondent in allowing the proposed amendments.  Accordingly, the EAT held that whilst the relevant factors had been outlined in the decision of the ET they had not been adequately applied.  There was no evaluation of the pros and cons of the application and how it applied to the parties.  For this reason, the appeal succeeded with the case remitted back to the ET (with a new Judge) to decide whether the amendment should be allowed.

Practical Lessons

This case demonstrates that, for the purposes of appeals, it is not sufficient for the Tribunal to merely list the relevant law and have no proper application thereof.   The EAT made it abundantly clear that for a proper evaluation of the factors for allowing or rejecting the amendments it must go through the pros and cons and how they would apply to each party.  As this was not done, it has led to much more work and expense through the appeal and then the remitted hearing which will come in due course.
https://www.gov.uk/employment-appeal-tribunal-decisions/mr-g-jumbo-v-zonal-retail-data-systems-ukeat-0275-19-la