The claimant lodged a claim for, inter alia, unfair dismissal and breach of contract. Following a Case Management Discussion the tribunal directed that a Pre-Hearing Review be held to consider a number of proposed amendments to the claimant’s claim form. The proposed amendments included inclusion of a claim under the Public Interest Disclosure (NI) Order 1998, an application to include a claim that the respondents failed to follow correct statutory disciplinary and dismissal procedures and whether it would be appropriate in all the circumstances to extend time to allow the claimant to make either of the amendments sought.

The tribunal recognised its discretion to make an order giving leave to amend her claim under Rule 10(2) of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (NI) 2005. 

The tribunal also recognised that this type of amendment arose out of the same facts already pleaded in the original claim and this should not be subject to scrutiny in respect of time-limits. However, the potential hardship to the claimant in not being able to bring a claim is an important factor, and one which eventually led the tribunal to allow the public disclosure claim amendment. The application for amendment based on the failure to follow correct statutory disciplinary and dismissal procedures was dismissed as it was not a free-standing claim. The third issue regarding extension of time was deemed irrelevant as time is not a factor in the first Pre-Hearing Review issue and the tribunal has dismissed the second Pre-Hearing Review issue.

Practical lessons from this decision:

This case confirms that there are three different categories of amendment applications: 

1. The first covers amendments which are designed to alter the basis of an existing claim, but without purporting to raise a new distinct head of complaint.
2. The second covers amendments that add or substitute a new cause of action but one that is linked to, or arises out of the same facts already pleaded in the original claim.
3. The third covers amendments that seek to add or substitute a wholly new claim or cause of action involving consideration of facts that have not been previously pleaded.

It is axiomatic that the tribunal is more willing to exercise discretion in relation to the first category of amendment and will only exercise discretion in relation to the third if it considers it ‘just and equitable to do so’ after a consideration of any possible prejudice to both sides. The specific factors considered in this evaluation are detailed in the full judgment.