Amending Claims in the Employment Tribunal: Choudhury v Cerberus Security and Monitoring Services Limited [2022] EAT 172.

Below, Ryan Ross reviews a recent decision of the Employment Appeal Tribunal (Choudhury v Cerberus Security and Monitoring Services Limited [2022] EAT 172), in which HHJ Tayler issued further guidance on the correct approach to applications to amend claims in the Employment Tribunal.

 

The Facts.

The Claimant was employed by the respondent as a Security Officer from 24 March 2007. He was suspended on 12 April 2019. The Claimant was summarily dismissed on 24 September 2019 and he brought a claim in the Employment Tribunal for unfair dismissal and victimisation. The claim form hinted at some other claim of discrimination. The Claimant was at all times unrepresented.

The Respondent denied the claims and complained that the victimisation claim lacked particularisation. The Tribunal wrote to the Claimant requiring him to provide further information on his victimisation claim. The Claimant duly responded with a lengthy document. The next day, he applied to amend his claim to bring complaints of direct discrimination and harassment.

 

The Decision of the Employment Tribunal.

At a preliminary hearing before EJ Lancaster sitting at Leeds Employment Tribunal, permission to amend the claim was refused. The Learned Judged held that: (i) complaints of discrimination and harassment could have been brought in the original claim; (ii) the Claimant was ‘no stranger’ to proceedings, having brought previous complaints in the Employment Tribunal; and (iii) the new allegations were being made for the first time at the preliminary hearing.

EJ Lancaster further added that he was applying the principles established in Selkent Bus Company Limited v Moore [1996] ICR 836; that the complaints were out of time; that the application was being made ‘by the back door’; and that it was ‘entirely unclear’ what the proposed amendment actually was.

 

The Decision of the Employment Appeal Tribunal.

The EAT (HHJ Tayler) overturned the Judge’s decision, holding that:

1. The starting-point in any amendment application is to identify the specific amendment(s) being sought. It is not possible to balance the injustice and/or hardship of allowing or refusing the amendment without knowing what the amendment is.
2. It will nearly always be necessary that a proposed amendment be produced in writing before the application is determined. Where possible, the amendment should result in a single document that sets out clearly the claims being brought.
3. The proposed amendment should be clarified before a decision is taken about the application.
4. Though Selkent gave a range of factors to consider, it was not a checklist. The focus remained on the balance of injustice/hardship in allowing/refusing the amendment. (Explicit reference was made to HHJ Tayler’s separate judgment in Vaughan v Modality Partnership [2021] ICR 535).
5. Reference in Selkent to a judgment did not mean that the balancing exercise was undertaken. The Learned Judge erred in failing to undertake the exercise.
6. Though a Judge can take into account the fact that a proposed amendment could have been brought earlier, it is difficult to see why this is a factor of great significance. It will often be the case that a proposed amendment could have been brought at the outset.
7. In obiter remarks, HHJ Tayler remarked that parties should think carefully before requesting further particulars: this may result in a large volume of information being provided that does not assist the issues in the case. (On this, see HHJ Tayler’s similar comments in Liverpool Heart and Chest Hospital NHS Foundation Trust v Poullis [2022] EAT 9, para 8).
8. In case it is of assistance, the following checklist may be of utility to Judges in considering applications to amend: (i) identify the amendment(s) sought, which should be in writing; then (ii) in express terms, balance the injustice and/or hardship of allowing or refusing the amendment(s), taking into account all the factors including, to the extent relevant, those set out in Selkent.

 

To read the judgment, please see here.

Ryan Ross has a practice with a particular focus on employment, regulatory, public and commercial/insurance-related areas of law. For further details on his practice, please see here.

 

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