Tribunal Member Mr G Doherty Tribunal Member Ms M McAllister Ms Kara Scobie v Scottish Ministers (Education Scotland) st and 1 other — 2022

The tribunal sat on 23 and 24 May 2022 for the start of an 11-day final hearing and first dealt with a late application by the claimant to amend claim 4113686/2021. The proposed amendment would have added a new paragraph alleging automatic unfair dismissal within section 103A of the Employment Rights Act 1996, said to be linked to protected disclosures made to the second respondent between 2 and 7 October 2020. The majority of the tribunal, with Ms McAllister dissenting, refused the amendment.

In reaching that decision, the majority applied the Selkent amendment principles and considered the nature of the proposed amendment, timing, explanation for delay, potential prejudice, and the practical effect on the listed hearing. The tribunal said the claimant had been legally represented throughout, had had extensive time to particularise the case, and had not given a satisfactory explanation for only raising the section 103A issue at the start of the final hearing. It did not accept that the omission was merely a simple administrative error.

The tribunal also found that allowing the amendment would likely require further enquiry, additional witnesses, more time, and extra cost, and that the respondents would suffer greater hardship if the amendment were allowed than the claimant would suffer if it were refused. The tribunal referred to Selkent, Chandhok v Tirkey, Hesketh v GCU, New Star Asset Management Holdings Ltd v Evershed, and Pruzhanskaya v International Trade and Exhibitors (JV) Ltd in the course of its reasons.

After the oral ruling, the claimant indicated an intention to appeal to the EAT and asked for the final hearing to be adjourned. The respondents did not oppose that application. The tribunal therefore adjourned the final hearing to be relisted before the same tribunal after the appeal process, directed the claimant's solicitor to update the tribunal and respondents about the EAT application and its progress, and discharged the remaining hearing dates.