Mr Stephenson - Counsel For the v Mr Smith – Counsel — 2019

This was a reserved judgment by Employment Judge Martin at London South on 26 November 2018, in proceedings presented in 2011 and stayed pending the appellate process on worker status until after the Supreme Court judgment in June 2018. The hearing was to decide whether the claimant needed permission to amend his claim so as to include the disputed detriments: alleged non-payment of sick pay, refusal to reduce hours, refusal to let him go home when unwell, suspension, dismissal, removal of the van and work equipment, and refusal to let him work on and after 4 May 2011.

The claimant said no amendment was needed because the facts were already in the ET1. The respondent said the pleaded case was confined to termination and reasonable adjustments, and that the proposed detriments were not separately pleaded claims. The tribunal accepted the respondent's construction of the original particulars of claim, holding that the references to sick pay, reduced hours, going home, suspension and the van were background to the termination rather than distinct detriment allegations during employment.

Applying Selkent, the tribunal found that an amendment application was required and then refused permission to amend. It held that the proposed amendment was an entirely new cause of action rather than a relabelling exercise, that the claimant had ample opportunity to amend in 2011 and 2012 before the stay, and that there were no new facts or disclosure justifying the late application. The tribunal considered that allowing the amendment would prejudice the respondent because witnesses would have to deal with events said to have occurred seven years earlier, and it therefore refused the application.