: L Brown A Grant Mandy Whitelaw v Sky Retail Stores Limited — 2023

This judgment concerned the claimant’s application, considered at the start of the final hearing on 1 August 2023, to amend her claim to include a complaint of unfair dismissal under section 98 of the Employment Rights Act 1996. The claimant’s original ET1 had included unfair dismissal, but that complaint had been withdrawn at a case management hearing on 11 January 2023 because she then accepted that she had not yet been dismissed. After her dismissal on 3 March 2023 for stated unauthorised absence, she wrote to the tribunal on 16 March 2023 saying that her contract had been terminated with immediate effect and referring to that concern in her original statement.

Applying the authorities on amendment, including Selkent Bus Company Ltd v Moore, the tribunal held that the proposed amendment was substantial because it introduced a new cause of action involving substantially different areas of enquiry from the existing whistleblowing detriment claims, although there was factual overlap concerning the claimant’s absence from work. The tribunal nevertheless concluded that, viewed objectively and in context, the claimant’s letter of 16 March 2023 amounted to an application to amend to pursue unfair dismissal. It found that the claimant intended by that letter to reactivate the unfair dismissal complaint she had originally raised.

The tribunal also found that the claimant, as an unrepresented litigant, reasonably misunderstood the tribunal’s letter of 23 March 2023 and did not understand that she needed to take further procedural steps. It held that, even if the application had only been made formally at the start of the hearing, it would have concluded that it was not reasonably practicable for the claimant to present it earlier because she was ignorant of the amendment procedure, had immediately alerted the tribunal to her dismissal, and reasonably understood that she had raised the issue. The tribunal also noted that the respondent ought reasonably to have inferred that the issue remained live when the claimant later sought inclusion of disciplinary documents in the joint bundle.

Balancing prejudice and hardship, the tribunal accepted that allowing the amendment would introduce new issues, delay the hearing by about 3 to 6 months, and cause the respondent additional costs said to be about £3,500. However, it found that similar issues would likely have arisen if the claimant had instead presented a separate unfair dismissal claim which would probably have been conjoined, and it considered that the additional costs stemmed in part from the failure to identify the outstanding amendment issue earlier. The tribunal therefore unanimously granted the application to amend. No substantive determination was made in this judgment on the unfair dismissal claim itself, the existing whistleblowing detriment complaints, or any remedy.