Mrs A Abercrombie v The Equality and Human Rights Commission — 2019

This was a judgment on an application to amend, not a final merits decision. The claimant sought to amend her ET1 on 21 March 2019 to add a new claim of automatic unfair dismissal based on a protected disclosure under section 43B of the Public Interest Disclosure Act 1998, relying on allegations about overtime payments claimed by the respondent’s Finance Director and, more generally, excessive workload and health and safety concerns. The tribunal held that the amendment would introduce a brand new claim that was not pleaded in the original ET1, and that there was no mention of any public interest disclosure claim or automatic unfair dismissal claim in the original form.

Employment Judge Grundy considered the nature of the amendment, time limits, and the timing and manner of the application, applying the Selkent approach. The judge found that the claimant had known the factual material since dismissal, that she had already had an appeal and had been advised by a trade union representative and an employment lawyer, and that she was later instructed by a solicitor when the ET1 was presented. The tribunal accepted that the claimant had health issues and reviewed the medical material, but was not persuaded that those matters explained why the whistleblowing claim had not been raised earlier. It was also noted that the claimant had existing discrimination claims relating to disability, which would still be available to pursue if the amendment was refused.

The tribunal concluded that it would not be in the interests of justice to allow the amendment. It considered the delay inordinate, thought it was reasonably practicable for the claim to have been brought earlier if the factual matrix was already known, and noted that allowing the amendment would risk the listed final hearing being lost. The claimant’s application to amend was therefore refused. Separately, the respondent’s application for an unless order was granted in relation to notes from meetings on 7 March 2018 and 16 March 2018 and any other undisclosed relevant documents, with a warning that failure to comply with the first two orders within seven days would result in the whole claim being struck out without further order.