Mr J Fennell v Represented by S Maclean Solicitor Arnold Clark Automobiles Ltd — 2020

The hearing was listed as a CVP final hearing, but at the outset both parties confirmed compliance with the existing directions, including the joint bundle, joint statement of agreed facts, witness lists, timetable and agreed issues. The claimant had sent a three-paragraph proposed amendment by email on 23 November 2020 and asked for it to be dealt with as a preliminary matter. Paragraphs 2 and 3 were unopposed, while paragraph 1 was opposed on the basis that it introduced a new inconsistent-treatment point.

The tribunal considered the amendment application against the overriding objective and the amendment authorities it cited, including Selkent Bus Co Ltd v Moore, Ladbrokes Racing v Traynor, Khetab v AGA Medical Ltd and Chandhok v Tirkey. It accepted that the late amendment had a cogent explanation because it arose from a chance contact with the second claimant witness, after which the claimant and his representative acted promptly. It also accepted the respondent's point that it had not yet been given a fair opportunity to investigate the new factual aspect.

The tribunal held that it would not be fair to proceed with the scheduled final hearing after allowing paragraph 1 of the amendment. It therefore converted the hearing to a case management preliminary hearing under Rule 48 of the Employment Tribunal Rules 2013, allowed the whole of the 23 November 2020 proposed amendment, and directed that the respondent be given an opportunity to investigate the amendment. A further preliminary hearing was listed for 15 December 2020 to consider further procedure. The judgment did not determine the merits of the unfair dismissal claim or make any monetary award.