EAT Examines Tribunal's Refusal to Amend Claims and Strike Out Discrimination Claims in Olatunde v Viewber Ltd [2023]: Key Legal Principles Analyzed

Citation: [2023] EAT 158
Judgment on


In the case of Mr J Olatunde v Viewber Ltd [2023] EAT 158, the Employment Appeal Tribunal (EAT) examined an appeal involving the refusal of an application to amend a claim before the employment tribunal and the striking out of discrimination claims. The case touches on various substantive legal principles, particularly relating to the process and criteria for amending claims and the factors tribunals must consider when determining such applications.

Key Facts

Mr J Olatunde, a litigant in person, sought to amend his initial tribunal claim to add claims for the national minimum wage (NMW) and holiday pay against his former employer, Viewber Ltd. The premise of the NMW claim was that periods during which Olatunde held property keys for potential viewing appointments should be considered working time, entitling him to NMW. For the holiday pay claim, Olatunde contended that he was entitled to payment in lieu of accrued holiday based on his overall relationship with Viewber Ltd, including periods of actual viewing assignments.

The tribunal at first instance addressed both applications to amend and strike out the original discrimination claims, ultimately refusing the amendments and granting the strike-out, effectively dismissing the claims in their entirety.

The Employment Appeal Tribunal (EAT) relied on several legal principles:

  1. Amendment Applications: According to the Selkent principles (Selkent Bus Co Ltd v Moore [1996] ICR 836), tribunals must balance the injustice and hardship of allowing an amendment against the injustice and hardship of refusing it, considering all circumstances.

  2. Timing and Scope of Claims: An important consideration for amendments is whether the new claim significantly recasts the existing litigated issues and whether it is presented out of time from the perspective of being a standalone claim.

  3. Evidentiary Impact: The EAT referred to Abercrombie v AGA Rangemaster Ltd [2014] ICR 209, which established that an amendment should be permitted unless it would “change the character” of the proceedings and make them “not … substantially the same” as the ones which had been initiated.

  4. Striking Out of Claims: As established in R (on the application of Anya) v University of Oxford [2001] EWCA Civ 405, the tribunal must provide sufficient reasons for their decisions, especially when striking out claims.

  5. Balance of Hardship: In Vaughan v Modality Partnership [2021] ICR 535, the EAT emphasized the importance of balancing hardship against hardship in deciding amendments.


The EAT dismissed the appeal in relation to the refusal of the amendment application concerning the NMW claim and the broader holiday pay claim predicated on the argument that keyholding amounted to working time. This was based on the judgment that the tribunal at first instance had correctly taken into account the significant recasting of claims and the timing issue, which were weighed heavily against the claimant.

However, the EAT concurred with the appellant that the tribunal erred in failing to consider whether the amendment request to introduce a narrower holiday pay claim, related solely to periods where actual viewing assignments were carried out, should be permitted. Thus, this particular aspect of the proposed holiday pay claim was remitted for reconsideration by a different judge, with the EAT acknowledging the need for a fresh examination of the evidential impact and the character of the ongoing proceedings.


In the appeal of Mr J Olatunde v Viewber Ltd, the EAT provides a nuanced application of the principles guiding tribunals on amendments to claims. It reinforces the need for a holistic approach in weighing the potential impact of both granting and refusing such amendments. The case underscores the requirement for tribunals to rigorously examine whether the proposed amendments alter the substantive nature of the original claims and evidential considerations. The final direction for a separate assessment of a narrower holiday pay claim reflects the EAT’s commitment to ensuring that each aspect of a proposed amendment is given due consideration.

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