C was dismissed from her employment as a Clinical Psychologist for R on 19 August 2010 and brought claims for unfair and wrongful dismissal. She later applied to amend her claim to include race and disability discrimination. The Employment Judge refused her permission to amend the claim.
C was employed as a Clinical Psychologist from 3 March 2008. In September 2009 R raised issues with C's record-keeping. C was subjected to a period of supervision following a performance review. She commenced sick leave in November 2009 following which further concerns about her record keeping were identified. After an investigation, a disciplinary hearing and an internal appeal, C was dismissed on 19 August 2010. C brought a claim in November 2010 for unfair and wrongful dismissal and was represented by solicitors instructed by her union. On 14 September 2011 C wrote to the ET seeking to add claims of race and disability discrimination. C instructed new representatives and the application was dealt with alongside other matters on 1 February 2012. The Employment Judge refused permission to amend on the basis that apart from the issue of considerable delay in making the amendment, C was represented by a senior Trade Union Official during her disciplinary process and by a firm of solicitors when she submitted her claim. Furthermore the Judge took the view that these were new allegations that had not previously been made at any stage, it would cause prejudice to R and that it would not cause hardship to C to refuse leave as it did not prevent her from pursuing her claim of unfair dismissal.
The EAT (HHJ Richardson, sitting alone) remitted the matter to be dealt with by a differently constituted Tribunal for the following reasons. Firstly, the Employment Judge had referred to C not raising disability discrimination during the disciplinary process even though he had received advice. This was a material misapprehension of the facts as disability discrimination had in fact been raised in the internal appeal. A significant factor to be borne in mind under the principles in Selkent Bus Co Ltd t/a Stagecoach Selkent v Moore  ICR 836 was whether an allegation of discrimination, sought to be added by amendment, had been raised during the disciplinary process. The EJ's misapprehension was also material as to whether prejudice was caused to either party.
Secondly, the Employment Judge had commented that there were no reasons for C's delay and that C was a professional person. However, the Judge did not evaluate the material that indicated the extent of C's ill health over a substantial period between 2009 and 2010.
Finally, the EAT accepted the submission that different considerations apply to different allegations which are subject to an amendment application and further, that different considerations may apply depending on the extent to which an application relates to an unfair dismissal claim and the extent to which it raises matters other than an unfair dismissal claim (albeit that it was not an error of law for the Employment Judge not to address each allegation in his reasons).
As a matter of practice, the EAT specifically advised that C should prepare a witness statement for the remitted ET hearing which set out those matters on which she wished to rely by way of explanation for the delay and to address the issue of prejudice — specifically stating that “the matter should not be left to oral argument and documents” (as it had been initially before the ET).
The full transcript is here: http://www.bailii.org/uk/cases/UKEAT/2013/0517_12_2607.html