O Rahman v Ford Retail Limited t/a Trustford
[2023] EAT 55
Mohammed Ayub v Ministry of Defence
17 May 2024
[2024] EAT 93
Employment Appeal Tribunal
A man sued his former employer for racism. The judge wouldn't let him add new details to his case. A higher court said the judge made a mistake and sent the case back to be decided again by a different judge.
Key Facts
- •Mr Mohammed Ayub (claimant) appealed an Employment Tribunal's refusal to amend his race discrimination claim against the Ministry of Defence (respondent).
- •The amendment sought to add allegations relating to the respondent's delay in processing his RAF re-joining application and requiring a fitness test not required of other re-joiners.
- •The Employment Tribunal's decision lacked written reasons, only providing a summary in the case management document.
- •The claimant argued the new allegations were linked to prior discrimination and were only possible after receiving relevant documents.
- •The respondent argued the amendment introduced new facts and areas of inquiry, and that it was made too late.
Legal Principles
The power to grant or refuse an application to amend is a case management power. The tribunal must balance the hardship, justice or injustice to each party.
Kumari v Greater Manchester Mental Health NHS Foundation Trust [2022] EAT 132 at paragraph 30
Even with correct legal direction, a Tribunal can err by considering irrelevant matters, failing to consider relevant matters, or making a plainly wrong decision.
Implicit in the judgment
The approach to amendment applications should follow Selkent Bus Company v Moore [1996] ICR 836.
Selkent Bus Company v Moore [1996] ICR 836
When remitting a case, the EAT should not substitute its own decision unless it has all the material before the ET.
Jafri v Lincoln College [2014] EWCA Civ 449, [2014] ICR 920
Outcomes
The appeal was allowed.
The Employment Tribunal materially erred in law by failing to consider relevant matters, including the claimant's explanation for the timing of the amendment and the link between new and existing allegations.
The application to amend was remitted for reconsideration by a differently constituted Employment Tribunal.
The EAT could not substitute its own decision due to lacking the full material before the original Tribunal. Following Sinclair Roche & Temperley v Heard [2004] IRLR 763, a different judge was deemed appropriate.