Liliana Vassallo v Mizuho International PLC & Anor
[2024] EAT 170
E Macfarlane v Commissioners of Police of the Metropolis
22 August 2023
[2023] EAT 111
Employment Appeal Tribunal
A worker sued her employer for unfair dismissal. She later tried to add a claim that she was fired for whistleblowing. The judge said no, because it was a new claim and it was unlikely she would win. A higher court agreed with the judge.
Key Facts
- •Mrs MacFarlane (Claimant) brought a constructive unfair dismissal claim against the Commissioner of Police of the Metropolis (Respondent).
- •Initially, she clarified she wasn't pursuing a whistleblowing claim.
- •She later sought to amend her claim to include detriment and unfair dismissal due to protected disclosures under sections 47B and 103A of the Employment Rights Act 1996.
- •The Employment Judge (EJ) refused the amendment, considering it raised new legal and factual claims and the balance of hardship favored the Respondent.
- •The Claimant worked for the Respondent as a Community Assessor from August 3 to December 10, 2019, resigning after raising health and safety concerns.
Legal Principles
Tribunals should focus on the substance of an amendment and whether it raises new legal or factual allegations, not just labels.
Selkent Bus Co Ltd v Moore [1996] ICR 836, Abercrombie v Aga Rangemaster [2014] ICR 209, Arian v The Spitalfields Practice [2022] EAT 67
A tribunal can consider the claimant's statements at case management hearings when assessing the nature of an amendment.
This case
Tribunals can consider the merits of a claim when assessing the balance of hardship in amendment applications.
This case, Gillett v Bridge 86 Ltd UKEAT/0051/17
Claims under section 103A (automatically unfair dismissal for whistleblowing) and section 98 (ordinary unfair dismissal) are not necessarily the same cause of action for amendment purposes.
This case (overruling Pruzhanskaya v International Trade and Exhibitors)
The overarching principle in amendment applications is the balance of justice, weighing the hardship of allowing versus refusing the amendment.
Selkent Bus Co Ltd v Moore [1996] ICR 836
Outcomes
Appeal dismissed.
The EJ correctly focused on the substance of the amendment, considering the Claimant's statements at the case management hearing and the merits of the proposed whistleblowing claims. The amendment introduced new factual and legal allegations, and the balance of hardship favored the Respondent.