United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MS DAPHNE ROMNEY One of Her Majesty's Counsel Instructed by: Messrs Laytons Solicitors Carmelite 50 Victoria Embankment London EC4Y OLS
For the Respondent	NICHOLAS RANDALL (of counsel) Instructed by: Messrs Olswang LLP Solicitors 90 High Holborn London WC1V 6XX


 


SUMMARY

PRACTICE AND PROCEDURE – Amendment

JURISDICTIONAL POINTS – 2002 Act and pre-action requirements

Judge refused permission to Claimant to amend claim form to include claim under s. 103A of Employment Rights Act 1996

Held that Judge erred in law by failing properly to analyse the extent to which the proposed amendment would extend the scope of the issues and the evidence – Amendment permitted, applying the approach in Selkent – observations on relevance of fact that claim under s. 103A had not been explicitly covered by a grievance under the statutory procedure.


 


THE HONOURABLE MR JUSTICE UNDERHILL (PRESIDENT)

INTRODUCTION

1. This is an appeal against the decision of Employment Judge Warren, sitting at London Central, refusing the Claimant permission to amend his grounds of claim. The decision was given orally immediately following the hearing on 12 February 2009, and what is described as a Judgment (though arguably it was, strictly, an "order": see rule 28 (1) of the Employment Tribunal Rules of Procedure) was signed by the Employment Judge on 20 February and sent to the parties on 23 February. Full written Reasons were requested and were sent to the parties on 27 March.
2. For the purpose of this appeal, the facts giving rise to the claim need be stated in only the barest outline. The Claimant is an experienced fund manager. He joined the Respondent, a leading fund management business, in early 2002. On the morning of 18 September 2008 he sent an e-mail to the Respondent's HR Department by way of a formal complaint of bullying by the Executive Chairman, Mr Duffield, and the Joint Chief Investment Officer, Mr Logan: I will refer to that e-mail as "the grievance". Later that day he was told to go home and not return until further notice: I will use the shorthand "suspended", though that particular term does not appear to have been used at the time. The Claimant says that the suspension was wholly unreasonable and was effected in a particularly humiliating manner, with allegations being made about his mental health. He resigned with effect from 23 September 2008.
3. On this appeal the Claimant has been represented by Ms Daphne Romney QC and the Respondent by Mr Nicholas Randall.

PROCEDURAL HISTORY

4. The Claimant commenced the present proceedings on 27 October 2008, alleging that he had been unfairly (constructively) dismissed. The grounds of claim are separately pleaded. They can be summarised as follows:

(1) After a short introductory section setting out some uncontentious background, under a heading "the Dismissal" the pleading sets out, fairly briefly, the Claimant's version of the events of 18 September 2008. It concludes with a statement that:

"This was the culmination of a series of actions by the Respondent that went to the root of the Applicant's contract, destroying the duty of trust and confidence implied in that contract and putting the Applicant in an intolerable position, leaving him with no choice but to leave on the grounds of constructive dismissal."

(2) There then follows a longer section headed "Brief History" containing complaints about Mr Duffield's behaviour. The complaints are both general, about Mr Duffield's manner towards both the Claimant and others, and specific. So far as the specific complaints are concerned, these appear to be threefold – (a) a complaint about the Claimant being put under intolerable pressure to increase the size of the fund which he managed, against his better judgment; (b) a complaint about an incident in 2006; and (c) a complaint about a "more recent" occasion on which Mr Duffield is said to have behaved in an offensive and intimidatory manner towards the Claimant when the Claimant intervened to prevent the bullying of a colleague called Roger Dossett.

(3) There follows a section headed "Complaints against Gregor Logan". The complaints are about various particular incidents between late 2007 and September 2008.

(4) Under the heading "Conclusion" it is pleaded that the Claimant had complained on various occasions to members of the Respondent's board about Mr Duffield's conduct but that his complaints had been ignored. A very general allegation is made that as a result of Mr Duffield's manner towards his fund managers the performance of their funds had dramatically declined. The section ends:

"All of these matters (including those matters relating to his suspension and dismissal) were calculated to and did destroy the Applicant's trust and confidence in the Respondent."

The pleading overall is, it has to be said, somewhat discursive and general: few particulars are given. Apart from the references which I have quoted to a breach of "the duty of trust and confidence" entitling the Claimant to claim constructive dismissal, there is no attempt to formulate the claim of unfair dismissal by reference to s. 98 of the Employment Rights Act 1996 or any other provision of the statute.

5. The Respondent lodged a response on 25 November 2008. The grounds of resistance are, on at least some aspects, a good deal more detailed than the allegations to which they are responding. The Respondent also made a request for further and better particulars of the claim form, which was answered on 6 January 2009.
6. On 6 January 2009 there was a Case Management Discussion before Employment Judge Potter. On that occasion Ms Romney adumbrated a claim under s. 103A of the 1996 Act, on the basis that the Claimant's suspension (which was itself the culminating act relied on as entitling him to resign) was in response to the lodging of the grievance of 18 September and that that grievance constituted a protected disclosure within the meaning of the Act. The Judge directed that the Claimant should make a formal application to amend the ET1 "to add a whistleblowing claim".
7. An application to amend pursuant to Employment Judge Potter's direction was made on 20 January 2009. The draft amendment, which was proposed to be added at the end of the "Conclusion" section (see para. 4 (4) above), reads as follows:

"Further or alternatively, the reason (or the principal reason) for the Respondent's conduct complained of on 18 September 2008 (which led to the Claimant's constructive dismissal) was because the Claimant had submitted his grievance to HR that day. The Grievance constituted a protected disclosure within the meaning of section 43B(1)(b) of the Employment Rights Act 1996 insofar as it disclosed bullying and abusive conduct on the part of Mr. Duffield and Mr. Logan which failed and/or was likely to fail to comply with any legal obligation to which the Respondent is subject, namely the duty of trust and confidence to the Claimant and other employees and/or section 43B(1)(d) insofar as it disclosed their bullying and abusive conduct so that the Health & Safety of any individual, including the Claimant, was being or was likely to [be] endangered. Further or alternatively the grievance disclosed mismanagement by Mr Duffield in interfering with the Claimant's management of his funds (and doing the same to other Fund Managers) therefore damaging the fund's performance and the reputation of those managers which failed and/or was likely to fail to comply with any legal obligation to which the Respondent is subject namely the duty of trust and confidence to the Claimant and other employees.

As a result of that protected disclosure the Claimant was subjected to the treatment complained of and was thereby unfairly dismissed."

8. That is plainly, though the section is not expressly identified, a claim that the Claimant's (constructive) dismissal was automatically unfair by reference to s. 103A, which reads as follows:

"An employee who is dismissed shall be regarded for the purposes of this part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that the employee made a protected disclosure."

"Protected disclosure" is defined (so far as material) in ss. 43B-43C, which provide as follows:

"43B Disclosures qualifying for protection

(1)     In this Part a "qualifying disclosure" means any disclosure of information which, in the reasonable belief of the worker making the disclosure, tends to show one or more of the following—

(a)     that a criminal offence has been committed, is being committed or is likely to be committed,

(b)     that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject,

(c)     that a miscarriage of justice has occurred, is occurring or is likely to occur,

(d)     that the health or safety of any individual has been, is being or is likely to be endangered,

(e)     that the environment has been, is being or is likely to be damaged, or

(f)     that information tending to show any matter falling within any one of the preceding paragraphs has been, or is likely to be deliberately concealed.

(2)-(5) …

43C Disclosure to employer or other responsible person

(1)     A qualifying disclosure is made in accordance with this section if the worker makes the disclosure in good faith—

(a)     to his employer, or

(b)     where the worker reasonably believes that the relevant failure relates solely or mainly to—

(i) the conduct of a person other than his employer, or

(ii) any other matter for which a person other than his employer has legal responsibility,

to that other person.

(2)     …"

9. The significance of a claim under s. 103A is not only that such a dismissal is automatically unfair but also that the cap on compensation provided under s. 124 of the Act does not apply: see s. 124 (1A). In the case of a high-earning employee such as the Claimant, that may be a material advantage.

THE JUDGE'S REASONS

10. As noted above, the formal Judgment promulgated on 23 February contained a short summary of the Judge's reasoning. In particular:

(1) Para. (i) of the Judgment itself reads as follows:

"I refuse the Claimant's application as set out in a written application dated 20 January 2009 to amend the claim that the Claimant was subjected to the treatment complained of and was thereby unfairly dismissed as a result of the Claimant making a protected disclosure namely a written grievance made to the Respondent's HR department on 18 September 2008. The reason for refusal were [sic] all those reasons put forward by Mr Randall at the hearing."

(2) Under the heading "Reasons" the Judge says this:

"If full written reasons are required for the refusal to allow the amendment application should be made to the Tribunal. To assist the parties the brief reasons for refusal are:-

(i) The amendment added a new claim it was not a re-labelling.

(ii) The Claimant had not raised a s32 grievance in respect thereof.

(iii) The request to amend was out of time – the Claimant was represented by solicitors at the time of his termination of employment and there was no explanation why such a claim was omitted.

(iv) There would be prejudice to the Respondent by allowing the amendment.

Those are not to be treated as the definitive reasons, but I set them out because they may shed some light on the subsequent formal written Reasons.

11. The formal written Reasons are fairly short. They can be summarised as follows:

(1) Paras. 1-3 are essentially introductory. They include a summary of the ET1 as originally pleaded.

(2) Paras. 4-12 summarise the submissions of the respective parties.

(3) Para. 13 identifies a number of authorities to which the Judge had been referred, although it contains no analysis of their effect.

(4) Paras. 14 and 15 contain the Judge's conclusion and his reasons for it. They read as follows (I have inserted the letters in square brackets):

"14 I refuse the amendment on the grounds that I consider [A] that the amendment is an attempt to raise a new cause of action which [B] will require wholly different evidence to that envisaged in the claim as pleaded.

15 [C] There is no causal link shown in the present ET1, to the claim now sought to be added; [D] no grievance has been raised in respect of such new claim under section 32 Employment Act 2002 that the Claimant's constructive dismissal was on the grounds of the Claimant making a public interest disclosure and [E] there would be prejudice to the Respondent's in that further expense in respect of a longer hearing [F] no further reason has been given as to why notwithstanding the Claimant was represent by solicitors at the time of raising the grievance and at the time of his resignation why a public interest disclosure claim was not pleaded in the original ET1 when it was drafted by the same solicitor. [G] The Claimant still has an unfair, constructive dismissal claim."

(I have not corrected the punctuation, which seems to have gone awry at one or two points; but the gist is clear enough.)

12. Seven distinct points can be identified in those reasons, though there is no doubt a degree of overlap between them: for ease of reference I have marked them [A]–[G]. The Judge does not mention the fact that, as is common ground, if the claim under s. 103A had been submitted as a fresh claim as at the date of the amendment application it would have been out of time. It appears from the Judge's recital of Mr Randall's submissions (see para. 11 of the Reasons) that it was one of the points on which he relied. The Judge in his original Judgment indicated that he was accepting the entirety of Mr Randall's submissions, and the time point was expressly mentioned in the brief reasons which he gave on that occasion: see head (iii) quoted at para. 10 (2) above. It would seem, therefore, that its omission in the final written Reasons was an oversight, and I will refer to it as an eighth factor ("H").
13. Those Reasons are very summary. I am all for succinctness, and in the case of some discretionary decisions a Judge's reasons may not be capable of much elaboration. But I shall have to consider whether some at least of the points made require more detailed reasoning than appears.

ANALYSIS

14. Ms Romney made a number of challenges to the Employment Judge's reasoning. It will probably be most convenient to take each of the points which I have identified in turn.

(A): "NEW CAUSE OF ACTION"

15. It is clear that the amendment does indeed raise a new basis of claim, since there is nothing in the original pleading to indicate that the Claimant intended to rely on s. 103A of the 1996 Act. (It might be possible to quibble with the phrase "cause of action", since s. 103A is a form of unfair dismissal; but that is not a point of any significance.) However, the weight to be attached to that fact depends on the extent of the difference between the original and the new bases of claim. It is well-established that a "mere re-labelling" is much more likely to be permitted than an amendment which introduces very substantial new areas of legal and factual inquiry: see, e.g., para. 13 of my judgment in Transport and General Workers Union v Safeway Stores Ltd (UKEAT/0092/07). The Judge does not attempt any explicit analysis of this; but that does not matter if and to the extent that his views, and the basis for them, appear from the remainder of his reasoning.

(B): "WHOLLY DIFFERENT EVIDENCE"

16. The Judge's view that the amendment would require "wholly different evidence" is a crucial part of his reasoning, for the reason given above. However, he does not explain the basis for it, and it does not seem to me self-evident. In my view this omission amounts to an error of law: it was necessary to consider with some care the areas of factual inquiry raised by the proposed amendment and whether they were already raised in the previous pleading.
17. The Judge not having performed this exercise, I need to do so. I take the proposed amendment sentence-by-sentence.
18. Determining the issue raised by the first sentence requires an examination of the reason for the Claimant's suspension. That of course is a matter about which full evidence would have been required in any event. The lodging of the grievance was already pleaded, and the pleading responded to, and gives rise to no new area of inquiry.
19. As to the second sentence of the proposed amendment, the terms of the grievance are a matter of record; but the Tribunal would have to decide, as required by s. 43B (1), (i) whether the Claimant believed that they tended to show, as pleaded, either or both of the matters under heads (b) and (d) ("disclosable misconduct") and (ii) whether any such belief was reasonable; and also (iii), as required by s. 43C, whether the disclosure was made in good faith. Mr Randall submitted that those issues would open up wholly new and extensive areas of inquiry. I do not accept this. The matters alleged in the grievance are essentially the same as those which the Claimant has in any event pleaded in the "Brief History" and "Complaints against Gregor Logan" sections of the ET1, and to which the Respondent has pleaded in its ET3. They would have to be considered by the Tribunal in any event. Although as a matter of strict analysis that consideration would be for the purpose of deciding whether the allegations were true and whether they amounted (or contributed) to a breach of the "Malik term" (see Malik v Bank of Credit and Commerce International S.A. [1997] ICR 606), in practice it would enable the Tribunal readily also to form a view as to the genuineness and reasonableness of the Claimant's belief that the complaints made showed "disclosable misconduct" and whether he made them in good faith. I also note that the Claimant's own state of mind in September 2008 is necessarily in issue on the existing pleading because he needs to establish that he resigned in response to the breaches pleaded (a matter which may well be more than formally in issue since the Respondent pleads that the Claimant has a track record of resigning and claiming constructive dismissal). While that question is not identical to those arising under ss. 43B (1) and 43C, there is likely to be a substantive overlap.
20. Mr Randall emphasised that the pleading, reflecting the grievance itself, referred to Mr Duffield's treatment not only of the Claimant but of other employees, and he submitted that Mr Duffield's conduct towards others was on any view irrelevant to the "mere" unfair dismissal claim already pleaded. I see the force of the argument that, generally, an employee will not be entitled to resign in response to his employer's treatment of other people (though I doubt if that is an absolute rule); but his conduct towards others may well be of evidential relevance, and it is not illegitimate that the Claimant should allege, as he does in his original grounds, that Mr Duffield bullied others as well as himself. I would expect the Tribunal to exercise some careful case management to prevent the hearing of the Claimant's complaint becoming bogged down in collateral issues about the treatment of third parties; but how far such an inquiry may be worthwhile is a matter of judgment, and I note that at the CMD on 6 January Judge Potter did in fact order disclosure of "all documents concerning complaints of bullying by previous or current members of staff within the last six years".
21. As to the third sentence, Mr Duffield's alleged interference in the Claimant's fund is, as I have said, fully pleaded in the original grounds. Mr Randall made the same point in this connection about the fact that the grievance and the proposed pleading referred to interference not only with the Claimant's fund but with those of other managers. He said that that raised the spectrum of a potentially extremely wide-ranging inquiry into the Respondent's business over the past several years. In my view that is quite unrealistic. In the original pleading also, what is essentially the same point is made: see para. 4 (4) above. In both contexts, it is clear that the Claimant's case will stand or fall by the evidence about Mr Duffield's conduct in relation to him: if he cannot show that that conduct was wrong in his case, he is hardly likely to be able to show that he genuinely or reasonably believed it to be wrong in the case of other fund managers. For that very reason, again, I would expect the Tribunal, whether the claim is amended or not, to keep exploration of any such collateral issue under tight control.
22. I therefore believe that the Judge's conclusion that the amended claim would require the adducing of wholly different evidence from that required by the original claim was wrong. If he had given any reasons for his view, I would have had to consider whether, even though I did not agree with them, I ought to respect his right, as the primary decision-maker, to take a different view; but he did not.

(C): "NO CAUSAL LINK

23. Read in isolation, the Judge's point here is obscure, but Mr Randall demonstrated that it is a reference to the decision of the Court of Appeal in Housing Corporation v Bryant [1998] ICR 123. In that case an applicant had brought proceedings for, inter alia, sex discrimination and unfair dismissal. In the course of her pleading she referred to the fact that she had prior to her dismissal made a complaint of sex discrimination but her pleading on the dismissal issue made no suggestion that the dismissal was due in whole or in part to her having made that complaint. A subsequent application to add a claim that her dismissal constituted victimisation pursuant to s. 4 of the Sex Discrimination Act 1975 was refused on the basis that it was a fresh claim. The Court of Appeal upheld that decision, Buxton LJ observing that "the words making the necessary causation link between the making of the complaint of discrimination and the dismissal were absent from the application": see at p. 130F. The Employment Judge's point was thus that the same was true in this case.
24. Thus understood, the Judge's point is right as far as it goes, but I do not think it goes very far. It is true that the original pleading does not explicitly assert that the Claimant was suspended because he lodged the grievance of 18 May. That is one of the reasons why the amendment must be treated as raising a new basis of claim (or "cause of action"), as already acknowledged at (A). (The other reason is that the grievance is not said to constitute a protected disclosure – an element not required in Housing Corporation v Bryant, where the prior complaint was self-evidently a "protected act".) But that is not conclusive against amendment, nor does Housing Corporation v Bryant suggest otherwise. It is no more than a factor. The weight to be given to the factor is a matter of judgment in each case. In the present case I would note that although the pleading makes no explicit linkage, both the pleaded facts themselves and the way they are narrated carries the strong implication that the suspension was, at least partly, a response to the lodging of the grievance earlier that same day. The circumstances of Housing Corporation v Bryant were very different. The complaint relied on as the protected act had been made in late 1993 or early 1994, and the dismissal had occurred in mid-1996. There was thus no obvious linkage between the two, and they were pleaded in entirely separate sections of the grounds of a nine-page grounds of complaint.

(D): NO GRIEVANCE

25. In a case of alleged constructive dismissal, it is well-established that the effect of s. 32 (2) of the Employment Act 2002 (which I need not set out) is that the Tribunal will not have jurisdiction unless the matters on which the Claimant relied as entitling him to resign had been the subject of a written grievance sent by him to the Respondent ("lodged", for short) in accordance with para. 6 of the statutory grievance procedure.
26. It appears to be accepted that the Appellant had lodged a sufficient grievance as regards the matters pleaded in the original claim form. In his ET1 he claimed to have done so. In response to questions 2.5-6 on the ET3, the Respondent pleads that "the Claimant raised a grievance on 18 September 2008" but that in subsequent correspondence he "confirmed that he was no longer interested in his grievance". That is repeated at para. 4 of the Grounds, where it is said that the Claimant "effectively withdrew the grievance". The question of withdrawal is a separate matter, on which the Tribunal has not yet adjudicated. What matters is the tacit acceptance that there was originally a valid grievance. It is true that the grievance lodged on the morning of 18 September did not cover the suspension which occurred later that day; but that is not necessarily fatal. In Shergold v Fieldway Medical Centre [2006] ICR 304 this Tribunal, Burton J. presiding, held that a claimant who has lodged a grievance about unreasonable conduct on the part of his employer is not necessarily obliged to lodge further grievances about each subsequent instance of such behaviour, even if that is relied on as the "last straw": see at para. 37 (p. 316). But even if it is debatable whether that approach applied in the present case, s. 32 (2) only bites if the ET1 reveals that no grievance has been lodged (which it does not do in the present case) or if the employer takes the point (which he has not): see s. 32 (6).
27. If that is right, it is hard to see what point D amounts to. No doubt no grievance has been lodged labelling the suspension as a response to a protected disclosure; but if there was no obligation for the grievance to complain about the suspension in the first place, that can hardly undermine its validity.
28. However, the case was primarily argued before me on the basis that if the s. 103A claim had been raised in fresh proceedings, then it would have been necessary for the suspension, and/or its characterisation as a response to a protected disclosure, to have been made the subject of a distinct grievance. On that basis the question was whether the failure to lodge such a grievance deprived the Tribunal of jurisdiction in the context of a claim raised by amendment. Before the Judge Mr Randall had submitted that it did, though he also submitted that, even if it did not, the fact that no such grievance had been lodged was a matter which should count against permission being granted as a matter of discretion. But before me he confined himself only to the latter alternative, regarding himself as, for all practical purposes, bound by the observations of Lady Smith in Highland Council v Transport and General Workers Union [2008] IRLR 272 at paras. 33-34 (pp. 278-9) (though he reserved his position should the case go further). That case was concerned with the question whether a claimant under the Equal Pay Act 1970 was required in her prior grievance to have named the comparator relied on in her claim. In that connection Lady Smith had to consider what would be the position if at a later stage the claimant discovered different or additional comparators on whom she wished to rely. She held that in such a case comparators could be added by amendment. She said, at para. 34:

"If tribunal proceedings have commenced then it is not a question of considering whether a claim can be presented or not. It has already been presented. There is no question of the pre-existing grievance procedure being 'invalidated'. What the claimant can do is to seek to amend her existing claim, the decision on which the employment tribunal makes in the exercise of its discretion without reference to s.32(2) which would not come into play in these circumstances. Contrary to what seemed at one point to be apprehended by the claimants, the tribunal would not require to refuse such amendment by reason of the fact that the new comparator(s) had not featured in the original grievance document. That would be but one of the factors that the tribunal could be expected to take into account and if there was a good reason for the reference to the new comparator(s) not having been made at that stage then that would, no doubt, weigh in the claimants' favour. Alternatively, where tribunal proceedings have already commenced, it would be open to the claimant, if so advised, to start afresh in respect of the new comparator, with a fresh grievance and, if the issue is not resolved through the grievance procedures (which should not be assumed to be without prospect of success) with a fresh tribunal complaint."

Although her decision on the primary issue before her has since been disapproved by the Court of Appeal (see Suffolk Mental Health Partnership NHS Trust v Hurst [2009] ICR 281), it is not suggested that her reasoning on this aspect was impugned. I see no reason to go behind the parties' common position on this. Lady Smith's reasoning seems to be consistent with the position as regards amendment to include claims which would be out of time if brought in fresh proceedings: see the Safeway Stores case referred to at para. 15 above.

29. On that basis, Ms Romney submitted that the Judge misdirected himself. At para. 11 of the Reasons he summarised Mr Randall's submission as being that "the failure to grieve [sic] is fatal to the Claimant's application to amend" and that he relied on Highland Council. Ms Romney submitted that, since the Judge had already made clear that he accepted all Mr Randall's submissions (see para. 10 (1) above), he must be taken to have accepted Mr Randall's more extreme submission, now conceded to be wrong. I do not accept that submission. Although para. 11 certainly supports her submission, I think that in the drafting of that passage the Judge in fact ran together both versions of Mr Randall's submission. That would be consistent with the, I fear, rather hasty style of the Reasons, and also with the reference to Highland Council, which contradicts, rather than supporting, the submission that the failure to lodge a grievance was fatal. If the Judge had meant to accept Mr Randall's more extreme submission, the remainder of the points made in paras. 14 and 15 of the Reasons would be redundant.
30. There remains the question of what weight ought to be given to any failure that there may have been to lodge a grievance in relation to the suspension. In my view the answer is "not much". I can quite see that the Claimant's failure to lodge a grievance might be a weighty factor against amendment where its pursuit might have altered the sequence of events. But that was not the case here. The Claimant had already lodged a grievance setting out his complaints up to 18 September. The requirement (if it really was one) to lodge a further grievance, updating matters to include the events of later that day was essentially technical: whether it was complied with or not, his complaint about his suspension could have been raised as part of the handling of the pending grievance - and no doubt would have been, had that been proceeded with. (I appreciate that the Respondent has a point on the Claimant's alleged failure to proceed with the grievance – see para. 25 above – but that is a separate matter.)
31. In short, I am not satisfied that the Claimant in fact failed to comply with any relevant obligation, in which case the Judge misdirected himself by having regard to his supposed breach. But in any event, the factor was one of minimal weight in the present case.

E: PREJUDICE

32. The weight placed by the Judge on this factor is dependent on his view that the amendment would require substantial new evidence (point B). Since I have rejected that view, I think the Judge erred in taking into account the prejudice specified.

F: ABSENCE OF EXPLANATION/EXCUSE

33. There was indeed no excuse or explanation offered for the failure to plead a claim under s. 103A in the original claim form. There is no reason to suppose that it was deliberate or, in the old language, "intended to over-reach". But in the absence of any explanation, it is certainly right to proceed on the basis that the failure was a mistake, and indeed careless: there is no good reason why the complaint sought to be advanced now could not have been advanced at the time. That deprives the Claimant of any positive argument that the omission was venial, but it is not by itself an argument for refusing permission: it is not the business of the tribunals to punish parties (or their advisers) for their errors. In very many, perhaps most, cases where permission is given to amend a pleading, the party in question could if he had been sufficiently careful have got it right first time round.

G: "CLAIMANT STILL HAS HIS ORIGINAL CLAIM"

34. This is true but does not seem to me to advance the argument very much. It might be a good point if the difference made by the amendment would be marginal; but for the reason given at para. 9 above that may well not be the case.

H: OUT OF TIME

35. I will assume, the parties not having argued to the contrary, that a fresh claim under s. 103A presented on 20 January 2009 (or indeed 6 January) would have been out of time, on the basis that the pleaded effective date of termination was 23 September 2008 and it was clearly reasonably practicable for the claim to have been brought within three months of that date. (I note in passing, however, that if the claim is, as I have suggested above, to be regarded as "covered" by the grievance lodged on 18 September the Claimant might be entitled to the extension afforded by reg. 15 of the Employment Act 2002 (Dispute Resolution) Regulations 2004 – though that might be affected by the Respondent's argument that he had withdrawn his grievance.)
36. The fact that fresh proceedings raising the claim in question would be out of time is always material in considering whether permission to amend should be given; but it is not decisive – see, again, Safeway Stores (above). In the present case it is to be noted that any such fresh claim would only have been out of time by less than a month, and that it was advanced at the first CMD.

CONCLUSION

37. It follows from the foregoing analysis that I believe that the Judge misdirected himself in relation at least to points B and E and probably also in relation to point D. The parties agreed that if I found an error of law in his approach I should exercise my power under s. 35 (1) of the Employment Tribunals Act 1996 to determine the application for myself. Guidance as to the approach which I should follow in doing so is given in the judgment of Mummery P. in Selkent Bus Company Ltd v Moore [1996] ICR 836: it is well-known, and I need not set it out here.
38. In my judgment the application should be allowed. Since I have reviewed the relevant factors above, I can identify very shortly the main factors leading me to that conclusion. They are as follows:

(1) I do not regard the s. 103A claim as involving a substantial increase in the scope of the factual inquiry which the Tribunal will have to undertake. The legal issues will undoubtedly be wider, but they remain in the same general area.

(2) If the case were to proceed without a claim under s. 103A being advanced the Tribunal would be placed in an artificial position. The events of 18 September 2008 will be central to the hearing even on the unamended pleading. The coincidence of the lodging of the grievance that morning and the Claimant's suspension later the same day raises at least a reasonable suspicion (rebuttable, of course) that the latter was a response to the former; and the contents of the grievance may well (without prejudging any issue) be regarded as constituting a prima facie protected disclosure. It would be unsatisfactory for the Tribunal to have simply to shut its eyes to that aspect of the case.

(3) The application was made at an early stage in the proceedings. Although the equivalent free-standing claim would have been out of time, it would only have been by a short time.

(4) As always in such cases, there is an obvious prejudice to the Respondent in having to meet a claim which had not previously been advanced, and which could in some circumstances significantly increase its liability if it were to lose. But that is balanced by the equal and opposite prejudice to the Claimant of being deprived of the opportunity to advance the claim. There is here no specific or peculiar prejudice caused to the Respondent by the failure to advance the s. 103A claim first time round.

39. The appeal is accordingly allowed and the Claimant's application of 20 April 2009 is granted.