Mr A Burke v Sky Subscribers Services Limited — 2020

This judgment concerns a preliminary hearing on the claimant's application, made on 4 December 2019, to amend his existing claim. The tribunal recorded that the substantive claim already before it was one of constructive unfair dismissal, with a further claim of unlawful deduction from wages also remaining in the case.

The claimant sought to amend his case to contend that he had been entitled to resign because of a breach of the implied term of trust and confidence. The tribunal refused that application. Applying the Selkent factors, the judge found a fundamental difficulty in the proposed amendment because the matters said to show breach were only discovered well after the claimant had resigned and after the claim had been presented, so they could not have caused the resignation.

The tribunal also took account of timing and prejudice. The hearing was close, preparation had proceeded on the basis of the case as previously pled, and allowing the amendment would likely require further answers, witnesses, documents and postponement of the hearing. After refusing the amendment, the tribunal noted a case management issue requiring the claimant to clarify the basis of the unlawful deduction from wages claim before the substantive hearing.