Sept 12
The claimant worked for the respondent for just over four months. She resigned after making complaints about health and safety and brought claims of constructive unfair dismissal and making a protected disclosure (a “whistleblowing claim”). At a case management hearing, however, she clarified that she was not bringing a whistleblowing claim. Shortly afterwards, she sought to amend her claim to bring complaints of being subject to a detriment and unfair dismissal because of making protected disclosures, contrary to sections 47B and 103A of the Employment Rights Act 1996. At a preliminary hearing, an employment judge refused the application to amend on the ground, inter alia, that the proposed amendment was not simply a relabelling but added to the factual and legal bases of her claim and, in reaching that conclusion, he placed some weight on the claimant’s statement at the case management hearing that she was not bringing a whistleblowing claim.
On the claimant’s appeal—
Held, appeal dismissed. The three factors which were relevant in deciding if there was an error of law were (a) the nature of the amendment; (b) the applicability of time limits; and (c) the timing and manner of the application. The claimant argued she had already brought a claim of unfair dismissal in her claim form, meaning that a complaint of unfair dismissal under section 103A of the Employment Rights Act 1996 was not a new claim as a matter of law. However, the correct approach was to examine the allegations in the amended claim, and the extent to which they were in substance different from those in the existing claim. If a claim on automatically unfair dismissal was in substance wholly different from the case originally pleaded, that was a factor counting against permission to amend. On the other hand, if in substance the new claim was a “mere” relabelling or was closely connected to allegations in the existing claim, justice and established case law were likely to point in favour of amendment. The exercise involved the application of principles with weight, not of rigid rules on what constituted new causes of action. Accordingly, the employment judge did not err, as a matter of law, in deciding that the section 103A claim was a new “type of legal claim”. There was no rule which required him to treat a section 103A claim as the same type of claim as the existing claim of unfair dismissal (paras 30, 36, 39–41, 43, 52–53).
Paras Gorasia (instructed directly) for the claimant.
Piers Martin (instructed by Directorate of Legal Services, Metropolitan Police Services) for the respondent.