D Cox v Adecco UK Limited & Ors
[2023] EAT 105
James Johnstone & Anor v Glasgow City Council
13 May 2024
[2024] EAT 75
Employment Appeal Tribunal
Two foster carers sued their employer. They wanted to add new things to their lawsuit, but the judge said no to some of them. The appeal court checked if the judge made a mistake or was unfair. They decided the judge acted correctly because she thought about all the important factors before making her decision. So, the foster carers lost the appeal.
Key Facts
- •Husband and wife foster carers (Claimants) brought materially identical claims against Glasgow City Council (Respondent) for unlawful detriment under sections 44 and 47B of the Employment Rights Act 1996.
- •Claims arose from their care of a child ('A') and subsequent alleged detriments.
- •Claimants sought to amend their claims, with the Employment Judge (EJ McManus) allowing some amendments but refusing others.
- •Appeal concerned EJ McManus's refusal of specific proposed amendments relating to additional allegations of detriment.
- •The proposed amendments included new factual allegations and associated detriments, some of which were described as restatements of existing claims while others were considered new claims by the EJ.
Legal Principles
The decision to allow amendment is a matter of judicial discretion, considering all circumstances, including any injustice or hardship to either party.
Selkent Bus Co Ltd v Moore [1996] ICR 836, Cox v. Adecco UK Ltd & Ano. [2023] EAT 105, Vaughan v. Modality Partnership (EAT) [2021] ICR 535
The EAT will not readily interfere with an Employment Tribunal's decision on amendments unless it erred in legal principle, failed to account for relevant factors, considered irrelevant factors, or reached an unreasonable decision.
Selkent Bus Co Ltd v Moore [1996] ICR 836
In considering amendment applications, the focus should be on the extent to which the new pleading involves substantially different areas of inquiry compared to the original claim, not on formal classification.
Abercrombie v Aga Rangemaster Limited [2013] EWCA Civ 1148
An appeal based on irrationality requires an overwhelming case that no reasonable tribunal could have reached the decision.
Yeboah v Crofton [2002] IRLR 634 CA
Outcomes
Appeal dismissed.
The Employment Judge correctly identified and applied the appropriate legal test, considered all relevant factors (including delay, costs, and the nature of the proposed amendments), and reached a conclusion open to her in the circumstances.