Appeal No. UKEAT/0189/12/LA

EMPLOYMENT APPEAL TRIBUNAL
FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8JX

		At the Tribunal
		On 27 June 2012
                                                                             Judgment handed down on 20 September 2012

Before
HIS HONOUR JUDGE SEROTA QC
(SITTING ALONE)

MR M WATKINS	APPELLANT

BRITISH BROADCASTING CORPORATION	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MR J DUTTON
(Solicitor-Advocate)
Waldegraves
Ealing House
33 Hanger Lane
London
W5 3HJ	
For the Respondent	MR T COGHLIN
(of Counsel)
Instructed by:
British Broadcasting Corporation
Room 2251, White City
201 Wood Lane
London
W12 7TS

SUMMARY
PRACTICE AND PROCEDURE – Amendment

The decision by an Employment Judge to refuse permission to amend an ET1 could not be faulted, as it was a decision well within the ambit of her discretion and she had made no error of law.

HIS HONOUR JUDGE SEROTA QC
Introduction
1.	This is an appeal by the Claimant from a decision of the Employment Tribunal at Watford (Employment Judge Lewis) that was sent to the parties on 22 February 2012.  This is not intended to be a criticism, but at a Pre-Hearing Review (PHR) I note that the decision is barely two‑and‑a‑half pages long.

2.	The appeal was referred in part to a full hearing by HHJ McMullen QC on 13 April 2012.  The grounds permitted to go to a full hearing relate to the Employment Judge’s decision to refuse to allow an amendment to the ET1.

3.	I heard the appeal on 27 June 2012 and then informed the parties that the appeal would be dismissed but I would hand down my full reasons later, as I now do.

The relevant background
4.	On 18 August 2011 the Claimant presented his ET1.  He claimed he used to undertake ad hoc work for the Respondent as a “worker” within the meaning of section 230(3) of the Employment Rights Act 1996 (ERA) and had suffered a detriment by reason of having made protected disclosures.

5.	On 15 May 2011 he complained to the Respondent’s manager, Adrian Camm, that he had been subject to bullying and that caused him stress and chest pains.  He also referred in that email to the shift pattern and allocation of shifts which he claimed was operated to his disadvantage.  This part of the email is relevant to the application to amend; see page 92.

6.	On 18 May 2011 he sent a further email to Adrian Camm in which he raised the possibility of a terrorist threat, allegedly made by a member of the Respondent’s traffic staff towards colleagues, as a matter that should be reported to the police.  In another email of 18 May (he seems to have sent a number of lengthy emails on that day) he stated that he was unhappy about working with a colleague; the prospect of working closely with her led him to get chest pains and attend A&E.  On 19 May he sent a further email referring to allocation of shifts on the casual rota and asking:

“Why do you express to me no interest whatever in the nature of terrorist threats I hear have been made against the BBC by a serving member of staff under your direct control?  Sir, what do you have to hide?”

7.	All of these emails are said to contain qualifying disclosures within the meaning of section 43B of the ERA 1996 in that they tend to show that the health and safety of any individual has been, is being or is likely to be endangered; see section 43B(1)(d).  The individual whose health and safety was endangered is said to be the Claimant.

8.	The Claimant asserts that he suffered a detriment as a result of making these disclosures in that he was not allocated further work.  He also argued that he suffered age discrimination, but this claim was struck out as having no reasonable prospects of success at a Pre‑Hearing Review before Employment Judge Lewis on 4 January 2012.  There was an application to strike out the claims of PID detriment at the PHR, but the Employment Judge declined to strike those claims out.  The PHR was immediately followed by a case management discussion, also before Employment Judge Lewis.

9.	At no stage during the PHR or the CMD did the Claimant indicate that he might seek to rely upon further incidents of PID detriment (which would necessitate an amendment of his ET1 and particulars of claim).  On 30 January 2012 he made that application.

10.	The case was fixed for a three‑day hearing commencing on 15 April at the CMD on 4 January 2012.  I understand that by reason of this appeal the hearing has been adjourned.

11.	The Claimant unsuccessfully sought a review of the decision that is the subject of this appeal on 3 April 2012.

12.	The Respondent in relation to the pleaded allegations denied that the Claimant had made protected or qualifying disclosures and also denied that he had suffered any detriment.

13.	The amendment sought to raise two new grounds of PID detriment: firstly, that the Respondent had breached a legal obligation in his contract by the unfair allocation of shifts favouring other “workers”; and secondly, an assertion that the Respondent breached a legal obligation in his contract by delaying an investigation into a grievance that he had raised regarding bullying.

14.	The Employment Judge directed herself by reference to the authority of Selkent Bus Co Ltd v Moore [1996] ICR 586, which set out the key principles relating to amendments in the Employment Tribunal; I shall turn to this authority in due course.  The Employment Judge noted that the amendments were neither minor nor were they the re-labelling of existing allegations.  She considered that they introduced completely new protected disclosures and an entirely new theory of what had upset the Respondent.  She noted that the primary time limit for commencing proceedings was 19 August 2011, so, in a sense, they were made six months out of time; see paragraph 7.  She noted that time might be extended if it had not been reasonably practicable to bring the claim in time.  The Claimant was represented by solicitors and there was no evidence of any difficulty in presenting the claim in time.  She added:

“The Claimant knew the facts.  Indeed, he had written numerous emails at the time regarding shift allocation and that was one of his main concerns.”

15.	She went on to note at paragraph 8 that the time limit was not determinative of the application to amend; it was only one factor.  It was particularly relevant to consider the balance of hardship between the parties.  On the one hand there would be hardship for the Claimant in not being permitted to argue a case that theoretically may have better prospects of success than those that were currently claimed; moreover, the Claimant was no longer able to argue his age discrimination case.  But on the other hand, the Claimant still had a whistleblowing case that was in time and that he could argue, and that reflected what she had to assume was what he originally considered to be the cause of the termination of his employment.

16.	The Employment Judge then at paragraph 9 went on to consider the prejudice that the Respondent might suffer by having to face the additional claim:

“Regarding the respondents, the question is what prejudice they would suffer over and above having to face an additional claim which might succeed where others have failed.  I believe there is such prejudice.  The respondents have prepared their defence to date on the basis of a different case.  Although there is an overlap of facts, there are also substantial differences.  The proposed amendment casts the net much wider in terms of the content of the claimant’s emails.  The respondents’ solicitors may need to re-interview witnesses whom they have already spoken to.  They may wish to amend their ET3.  The respondents requested and prepared for the pre‑hearing review on the basis of the claim as pleaded.  They took it most seriously.  They were represented by counsel.  They produced written submissions and witness statements.  They did not have the opportunity to seek strike out or a deposit order regarding the two new proposed amendments.  To do so now would require a further PHR with all the costs entailed.  Moreover, the listing of the case for three days is unlikely to be sufficient with the additional claims.  A postponement and relisting is likely to lead to a longer delay in hearing the case than it had originally been listed for a longer period.”

17.	The Claimant has seized upon the language used in paragraph 9 that the Respondent’s solicitors “may” need to interview witnesses and they “may” wish to amend their ET3.  At paragraph 10 the Employment Judge noted that the Claimant had the opportunity at any time prior to the PHR and CMD to seek permission to amend but he gave no hint of any amendment to come.  He always knew he had been complaining to the Respondent about shift allocation and delay in handling his grievance:

“10. He chose to select out two other sources of complaint as the protected disclosures founding his whistleblowing claim.  It cannot be right that the claimant is permitted to change tack as he goes along regardless of the impact on the respondents in terms of extra time and costs.
11. Balancing all these various considerations, the amendment is not allowed.”

18.	I should also note in relation to the application to review a letter from the Employment Tribunal dated 3 April 2012 at page 91 of the bundle, which contains the following:

“The Judge has already explained her reasoning for refusal of leave to amend.  The use of the word ‘may’ in paragraph 9 of the Judgment was perhaps infelicitous, but the Judge intended to convey that she accepted the respondents’ evidence in their letter of 2 February 2011 that they would need to amend their ET3 and prepare more detailed witness statements if the amendments were allowed.”

The Notice of Appeal and submissions in support
19.	I note that the Notice of Appeal was seven pages long and the skeleton argument five pages long.  It was firstly submitted that the amendments did not seek to add a new cause of action; it was, therefore, not out of time, and it was inappropriate of the Employment Judge to consider the time limits for commencing proceedings.  I observe that in their letter seeking permission for the amendment the Claimant’s solicitors stated:

“We must, of course, acknowledge that these proceedings commenced on 18 August 2011 and that, accordingly, the proposed amendment would be considerably out of time.”

20.	It was submitted that the proposed amendments merely supplemented the existing claim that the Claimant had suffered a PID detriment within the meaning of section 48 of the ERA 1996.

21.	Mr Dutton, who appeared on behalf of the Claimant, drew attention to a relevant extract from Harvey on Industrial Relations and Employment Law at division P1 at paragraphs 311‑312.  I shall return to this in due course.

22.	Mr Dutton suggested that the Employment Judge had fallen into error in making findings of fact in relation to the effect of any amendment based on speculation rather than evidence.  He suggested in his submissions there was no evidence of “enormous expense” that might be incurred by the Respondent were the amendments to be granted.  He submitted that if expense were to be taken into account, there had to be evidence of at least “considerable expense”.  In fact, the prejudice to the Respondent would be minimal both in relation to further interviews of witnesses and amending the ET3 response.

23.	Mr Dutton went on to submit, without there being evidence to support this particular submission, that the cost to the Respondent would be modest as it was represented by its own in‑house solicitors.  Further, there was little expense as there was little overlap between the existing and the proposed new claims.  Reference would be made to the same emails.  It was likely that the Respondent would rely on the same arguments in relation to the new allegations as to the existing allegations.  It would rely on the same arguments as to absence of good faith and causation, and its case on the allocation of shifts had been set out in the email correspondence.

24.	So far as the loss of a potential application to strike out was concerned, such an application was unlikely to succeed because the application to strike out the existing grounds relating to public interest disclosure (as opposed to age discrimination) had failed.  The Employment Judge should have considered whether to allow the amendment subject to a possible costs order in favour of the Respondent.

The Respondent’s submissions
25.	Mr Coghlin’s skeleton argument runs to some 13 pages.  I have considered a bundle containing approximately eight authorities.  Mr Coghlin submitted that the decision of the Employment Judge was a case management decision and that case management decisions of Employment Judges should be respected and supported.  He drew my attention to authorities I shall refer to shortly, such as Gayle v Sandwell & West Birmingham Hospital NHS Trust [2011] IRLR 810, Noorani v Merseyside TEC Ltd [1991] IRLR 84, The Housing Corporation v Bryant [1998] ICR 123 and X v Z Ltd [1997] ICR 43.  Mr Coghlin referred to the chronology and the delay and characterised the amendments as being a weak attempt to dress up allegations as disclosures of information, thus the assertion of a contractual right was not a disclosure of information; in this regard, he relied upon the decision in Cavendish Munro Risks Management Ltd v Geduld [2010] ICR 525.  The same applied to the alleged delay in considering his grievance; this, again, was an allegation, not a disclosure of information.

26.	Further, and in any event, in relation to the “disclosure” of the failure to investigate a grievance Mr Coghlin observed that the Claimant faced an insuperable difficulty in that he could not have a reasonable belief that the Respondent had delayed in investigating his grievance or was likely to do so, certainly to the extent of being in breach of contract.  His email was sent at 2.02pm on 19 May, less than two hours after he had set a deadline for reply of “end of working hours on Monday”, i.e. 22 May 2011.  Given that the grievance had been raised only a few days before and his self‑imposed deadline was still over three days away, Mr Coghlin submitted there were no reasonable grounds for him to believe that the Respondent had or was likely to commit a breach of a legal obligation by unreasonably delaying in resolving his grievance; be that as it may.

27.	Mr Coghlin submitted that the Employment Tribunal was entitled to conclude that the proposed amendment was not minor, it introduced new allegations of protected disclosures and put an entirely different theory for what it was done by the Claimant that had upset the Respondent.  It was therefore entitled to conclude that time limits were relevant because it was in essence a new claim even if linked to and arising out of claims already pleaded.  The time limits were relevant to the issue of delay, for which there was no good reason, and the failure to show that it was not reasonably practicable to have made the amendments earlier was, of course, relevant.  Delay in making an amendment was a significant factor to be considered following the decision in Selkent v Moore.

28.	In the particular case the Employment Judge clearly drew the inference that at the CMD and PHR the Claimant was well aware of the need to amend his claim but had deliberately chosen not to at that stage.  The Employment Judge was correct to have regard to the balance of hardship, including the loss of the hearing date, and she was best placed to say if the hearing might be extended or not and consequently the date lost.  In so far as her assessment of work that would need to be undertaken by the Respondent’s solicitors, this was a matter of impression for her.  She had the benefit of knowledge of employment law and practice and of this particular case, because she had conducted the CMD and the PHR, and was familiar with how litigation progressed in Employment Tribunals and how a Respondent might have to respond in detail to the points raised by the amendment.

29.	He submitted that were the amendments to have been allowed the Respondent would have to re‑interview witnesses about a wider array of emails than those specifically referred to (it appears that the Claimant sent a large number of emails).  It would be necessary to amend the ET3 response and to re‑examine the factual background, focussing on the reasons why the Claimant’s fellow “workers” were said to have received a more generous allocation of shifts.  There would also have to be further investigation on the issue of causation.

30.	Mr Coghlin answered the submission that there was no hard evidence as to the expense that might be caused by the amendment.  He noted that the Employment Judge in the review application had accepted the Respondent’s case that the Respondent would need to amend its ET3 and prepare more detailed witness statements.  She was entitled to use her own knowledge of the case and assess the likely expense and extent of further work based upon what she had seen of the case, her own knowledge of litigation in the Employment Tribunal and the state of its lists.  So far as a costs order was concerned, Mr Coghlin submitted that this might not be of any value.  It would be necessary for him to show that the Claimant had acted unreasonably, and also his ability to pay an order for costs would have to be considered as being possibly relevant to the decision to order payment of costs.

31.	Mr Coghlin again stressed the importance of respecting the discretion of the Employment Judge in relation to matters she had taken into account.  Her decision was nowhere near perverse; Mr Coghlin referred to the well‑known authority of Yeboah v Crofton [2002] IRLR 63, which required the Claimant to make out an “overwhelming” case.

32.	Overall, Mr Coghlin submitted, the Employment Judge came to a permissible conclusion weighing up all relevant factors and the decision could not possibly be characterised as perverse.

The law: protected and qualifying disclosures
33.	Regarding protected and qualifying disclosures section 43A of the Employment Rights Act 1996 provides:

“In this Act, “a protected disclosure” means a qualifying disclosure (as defined by s.43B) which is made by a worker in accordance with any of ss.43C to 43H.”

Section 43B(1) provides [so far as relevant to this case]:

“In this Part, a “qualifying disclosure” means any disclosure of information which, in the reasonable belief of the worker making the disclosure, tends to show one or more of the following:
...
(d) that the health or safety of any individual has been, is being or is likely to be endangered.”

34.	An employee who has been subjected to a detriment by reason of having made a protected disclosure (see section 47B) may make complaint to the Employment Tribunal pursuant to section 48.  The Employment Tribunal can grant various remedies, including compensation.

The approach to decisions of the Employment Tribunal
35.	In Canadian Imperial Bank of Commerce v Beck [2009] IRLR 740, Wall LJ helpfully set out the principles that apply when challenging a discretionary decision of an Employment Tribunal:

“23. As to the correction of an error of law committed by a judge who is exercising a judicial discretion, the law is equally clear. The leading case is G v. G [1985] 1 WLR 647, which contains references to the well-known judgment of Asquith LJ in Bellenden (formerly Satterthwaite) v Satterthwaite [1948] 1 All ER 343 at 345. For an appeal to succeed, the exercise of discretion which is challenged must, in Asquith LJ's words: "exceed the generous ambit within which reasonable disagreement is possible". 
There is no particular magic in the fact that we are here dealing with an appeal from the ET to the EAT and then to this Court. G v G principles apply in the instant case as they would apply to any other appeal which involves the exercise of a judicial discretion.”

36.	In the Judgment of Longmore LJ in Chief Constable of Lincolnshire Police v Caston [2010] IRLR 327:

“29. I agree and would only reiterate the importance that should be attached to the EJ's discretion. Appeals to the EAT should be rare; appeals to this court from a refusal to set aside the decision of the EJ should be rarer. Allowing such appeals should be rarer still.”

37.	Particular care must be taken when case management decisions are concerned; the matter was put well by Lawrence Collins LJ in Wallbrook Trustee (Jersey) Ltd v Fattal [2008] EWCA Civ 427 at paragraph 33:

“These were case management decisions. I do not need to cite authority for the obvious proposition that an appellate court should not interfere with case management decisions by a judge who has applied the correct principles and who has taken into account matters which should be taken into account and left out of account matters which are irrelevant, unless the court is satisfied that the decision is so plainly wrong that it must be regarded as outside the generous ambit of the discretion entrusted to the judge.”

38.	Mummery LJ made the same point specifically in relation to Tribunal decisions in Ma v Merck Sharpe and Dohme Ltd [2008] EWCA Civ 1426:

“I am also of the view that this court should not be hyper-critical or over-analytical in its treatment of tribunal decisions which, even if not themselves technically discretionary case management issues, are closely connected to the practical management of complex or intractable litigation. After all it is the ET and not the Court of Appeal that is going to try the case. That said, however, there are features in the present case that have led me to the conclusion  that a question of law does arise from the decision of the ET to limit or exclude from the substantive hearing on time limit grounds some of Dr Ma’s complaints and evidence of them,  and that there should be some variation in the ET’s order.”

39.	For the sake of completeness I refer to two authorities cited by Mr Coghlin.  Firstly, in Gayle Mummery LJ said at paragraph 21:

“If the ETs are firm and fair in their management of cases pre-hearing and in the conduct of the hearing the EAT and this court should, wherever legally possible, back up their case management decisions and rulings.”

40.	In X v Z [1998] ICR 43 Waite LJ stressed the importance of respecting decisions of Employment Judges:

“The case provides a salutary example of the value of the rule that the tribunals themselves are the best judges of the case management decisions which crop up every day as they perform the function, an important but seldom an easy one, of trying to do justice with the maximum of flexibility and the minimum of formality to the problems that arise from the employment relationship and its termination. Decisions of the kind that the chairman was required to make in this case frequently call for a balance to be struck between considerations of time, cost and convenience as well as fairness to the parties, and in the vast majority of cases can and should be left to the tribunals to resolve for themselves without interruption from the appellate process.

41.	This dictum was applied by Buxton LJ in the Court of Appeal in the case of an application to amend; see Bryant v Housing Corporation [1999] ICR 123.

42.	The Appeal Tribunal’s Practice Direction at 11.6.2 draws attention to the potential difficulties in appealing against case management decisions:

“11.6.2 The EAT recognises that employment judges and Employment Tribunals are themselves obliged to observe the overriding objective and are given wide powers and duties of case management (see Employment Tribunal (Constitution and Rules of Procedure) Regulations 2004 (SI No 1861)), so appeals in respect of the conduct of Employment Tribunals, which is in exercise of those powers and duties, are the less likely to succeed.”

Perversity
43.	The principle in Yeboah is well known.  Mummery LJ said at paragraph 93:

“Such an appeal ought only to succeed where an overwhelming case is made out that the Employment Tribunal reached a decision which no reasonable tribunal, on a proper appreciation of the evidence and the law, would have reached. Even in cases where the Appeal Tribunal has "grave doubts" about the decision of the Employment Tribunal, it must proceed with "great care", British Telecommunications PLC –v- Sheridan [1990] IRLR 27 at para 34.”

Principles applicable to granting permission for amendments in the ET
44.	The leading authority is Selkent v Moore (Mummery J, as he then was, in the EAT).  The headnote is as follows:

“In deciding whether to exercise its discretion to grant leave for amendment of an originating application, a tribunal should take into account all the circumstances and should balance the injustice and hardship of allowing the amendment against the injustice and hardship of refusing it. Relevant circumstances include: the nature of the amendment, the applicability of statutory time limits and the timing and manner of the application.”

45.	Mummery J pointed out that if the amendment seeks to raise a new cause of action, consideration must be given to the questions of time limit, because if application is made to amend outside the relevant limitation period, the Employment Tribunal by analogy with the principles of application for the commencement of proceedings out of time should only grant permission if it would be either “just and equitable” or it had not been “reasonably practicable” to commence proceedings within time, as the case may be.  That is not to say, however, that time is irrelevant, because the reasons for and the extent of any delay in making the application were highly relevant.

46.	Employment Tribunals should take account of all relevant circumstances; Mummery J continued at paragraph 21:

“21. 
(4) Whenever the discretion to grant an amendment is invoked, the tribunal should take into account all the circumstances and should balance the injustice and hardship of allowing the amendment against the injustice and hardship of refusing it.
22 
(a) The nature of the amendment
Applications to amend are of many different kinds, ranging, on the one hand, from the correction of clerical and typing errors, the additions of factual details to existing allegations and the addition or substitution of other labels for facts already pleaded to, on the other hand, the making of entirely new factual allegations which change the basis of the existing claim. The tribunal have to decide whether the amendment sought is one of the minor matters or is a substantial alteration pleading a new cause of action.
(b) The applicability of time limits
If a new complaint or cause of action is proposed to be added by way of amendment, it is essential for the tribunal to consider whether that complaint is out of time and, if so, whether the time limit should be extended under the applicable statutory provisions, eg, in the case of unfair dismissal, s.67 of the 1978 Act.
23
c) The timing and manner of the application
An application should not be refused solely because there has been a delay in making it. There are no time limits laid down in the Rules for the making of amendments. The amendments may be made at any time – before, at, even after the hearing of the case. Delay in making the application is, however, a discretionary factor. It is relevant to consider why the application was not made earlier and why it is now being made: for example, the discovery of new facts or new information appearing from documents disclosed on discovery. Whenever taking any factors into account, the paramount considerations are the relative injustice and hardship involved in refusing or granting an amendment. Questions of delay, as a result of adjournments, and additional costs, particularly if they are unlikely to be recovered by the successful party, are relevant in reaching a decision.”

47.	The relevant passage from Harvey that I mentioned earlier in this Judgment is to be found at division P1 commencing at paragraph 311.03:

“A distinction may be drawn between (i) amendments which are merely designed to alter the basis of an existing claim, but without purporting to raise a new distinct head of complaint; (ii) amendments which add or substitute a new cause of action but one which is linked to, or arises out of the same facts as, the original claim; and (iii) amendments which add or substitute a wholly new claim or cause of action which is not connected to the original claim at all.
[312]
Amendments falling within category (i) are not affected by the time limits, as the nature of the original claim remains intact, and all that is sought to be done is change the grounds on which that claim is based. (It is to be noted that, when determining whether the proposed amendment falls within the existing claim as pleaded, or constitutes an entirely new claim, regard is to be had to the whole of the ET1, and not just to the general description of the complaint in box 1: Ali v Office of National Statistics [2004] EWCA Civ 1363, [2005] IRLR 201 at para 39.) Thus, in an equal pay claim, the substitution of one comparator for another is treated as an amendment to an existing claim, rather than an application to raise a new claim in the same proceedings (Smith v Gwent District Health Authority [1996] ICR 1044, EAT). In unfair dismissal cases, a claimant may seek to amend his complaint to include a new basis for alleging that the dismissal was unfair. The new ground will not be time-barred because no separate cause of action is being added, but again whether the amendment is allowed will depend on factors such as hardship and delay. Selkent Bus Co v Moore is illustrative of the problems faced by a claimant who seeks to amend at a late stage. A fortnight before the date fixed for the hearing, the claimant applied to amend his unfair dismissal complaint to allege, in addition to the existing claim that his dismissal was unfair on general principles, a fresh allegation that the dismissal related to his trade union membership or activities and so was automatically unfair. The tribunal allowed the amendment but its decision was overturned on appeal. The factors which influenced the EAT in refusing the amendment were (a) the delay in making the application to amend, coupled with a lack of explanation from the claimant as to why the new grounds, which must have been known to him at the time, had not been put forward in the original application; (b) the absence of hardship to the claimant as his case would in any event proceed on the original basis; and (c) the greater risk of hardship to the respondents if the amendment were allowed, resulting from an adjournment of the proceedings and a longer hearing, with a concomitant increase in costs that would not be recoverable.”

The distinction between disclosures of information and making an allegation
48.	In Geduld (Slade J in the EAT) a distinction is drawn between disclosure of information that must be proved for the purposes of making a qualifying disclosure under section 43B(1) of the ERA and simply making an allegation that would not fall within that definition.  Slade J observed, “The ordinary meaning of giving ‘information’ is conveying facts”.

Conclusions
49.	Generally, I prefer Mr Coghlin’s submissions.  It is simplistic to say that the proposed amendment was simply an amendment to the existing claim and just another example of PID victimisation merely designed to alter the basis of the existing claim.  It was a wholly new allegation even if it could be said to arise out of matters already pleaded, and it raised a new distinct head of complaint and was not simply a re-labelling exercise of facts already pleaded.  However, I do not believe it is contended that it is a wholly new claim or cause of action that was not connected to the original claim at all such as to require the Employment Judge to consider time limits as such and consider by analogy with applications to extend time whether or not it was reasonably practicable to have made the application within the appropriate limitation period.  I note in passing the somewhat unwise statement of the Claimant’s solicitors’ letter that the application was “out of time” at page 71.  I cannot say whether or not this may have influenced the language used by the Employment Judge.  

50.	In the circumstances of this case, it was necessary for the Employment Judge, as she directed herself, to apply the principles set out in Selkent v Moore and to consider the extent and reasons for the delay, as explained in that case, when weighing up the necessary factors for the exercise of her discretion.  I am satisfied in this case that the Employment Judge did not consider that the new claim was one that added or substituted a wholly new claim or cause of action that was not connected to the original claim at all such that she had to consider the effect of time limits, as though the case were in category 3 referred to in Harvey.  She was, however, entitled to use the time limits for bringing proceedings as a yardstick to measure the Claimant’s delay.  It is unlikely having directed herself to Selkent v Moore that she would have considered the proposed amendments in this case to be in Harvey’s category 3.

51.	However, it is inevitable that even if an amendment is not such a case, the more factual or legal issues the amendments add to the existing claim the greater the risk of prejudice to the other party by reason of having to undertake additional research and preparation and answer fresh allegations.  I reject the submission that the Employment Judge based her decision on the exercise of her discretion on speculation.  She was familiar with the case, she was familiar with litigation in Employment Tribunals, and she would know the likely expense and work required to prepare for trial when a new factual point is raised shortly before the hearing and to have regard to that in weighing up the relevant prejudice.  She was also in the best position to know the effect of the amendment on the estimated length of the case and whether she believed it might well lead to an adjournment of the hearing.  I reject the submission that the cost to the Respondent would be significantly less because it used in‑house solicitors rather than instructing outside solicitors.  There is no evidence to support that suggestion.

52.	Even though there may have been some overlap between the Respondent’s defences to the original allegations and to those sought to be introduced by the amendment, the Employment Judge was entitled to conclude that the amendment would require further investigation by the Respondent as to the fairness and reasons for shift allocations and whether the Respondent had acted in a discriminatory manner in relation to shift allocations.

53.	In the circumstances the Employment Judge was entitled, if not bound, to have regard to the delay on the part of the Claimant, as the Respondent submitted.  The amendment was not minor; it introduced new protected disclosures and put an entirely different theory for what had upset the Respondent.  I also agree that the Employment Judge evidently drew an inference that the Claimant was aware at the time of the PHR and the CMD of the need to amend but he chose not to, for unexplained reasons.  The Employment Judge was also entitled to have regard to the balance of hardship that might be caused by the loss of the hearing date, and, as I have said, she was best placed to say whether the hearing might have to be extended and the trial date lost.  Her knowledge of the case was extensive because she had also conducted the PHR and the CMD.

54.	In relation to the argument that the amendment would not necessarily cause expense because the Tribunal had said that the Respondent “may” need to interview witnesses again or amend the ET3, in the review application at page 91, to which I have already drawn attention, the Employment Judge accepted the Respondent’s case that it would need to amend the ET3 and prepare more detailed witness statements.

55.	The Employment Judge was entitled to use her own knowledge of the case and assess the effects of granting the amendment on the basis of what she had seen of the case.  I accept the Respondent’s submission that were the amendments to have been permitted and the new case raised they would have had to consider with witnesses a much wider array of emails than those specifically referred to as well as having to amend the ET3.  Even if the witnesses called would be the same, it would be necessary for there to be an examination of the factual background focussing on the reasons why the Claimant’s colleagues were allocated more shifts than he was allocated and the causation issue, namely whether the Claimant’s complaints led to his being denied further work.

56.	I did not see any suggestion in the Judgment, as the Claimant submitted, that “considerable and excessive time and costs” would be incurred by the Respondent.  The Employment Judge (paragraph 9) merely referred to the need to re‑interview witnesses and amend the ET3, and possibly make a further application to strike out or for a deposit as well, possibly, as the costs of the delay and a longer hearing.

57.	The Respondent in its submissions to the Employment Tribunal did not make an allegation that its costs would be considerable and excessive.

58.	I accept an application for a costs order might provide little comfort to the Respondent.  It is by no means a foregone conclusion that such an order would have been granted, and the Respondent would have to show that the Claimant had not only acted unreasonably but there would have to be a consideration of his ability to pay costs.

59.	The Claimant is in essence challenging the Employment Judge’s assessment of the effect of the amendment, which seems to me to be well within the scope of proper findings that she might make both as to the extent to which it might overlap existing proceedings and to the extent to which it would cause additional delay and expense.

60.	At the end of the day, this is a classic case of an Employment Judge exercising a discretion, and it is very far from a case where her exercise of discretion was plainly wrong or otherwise flawed.  As I said in the brief reasons at the conclusion of the hearing, I have come to the clear conclusion that the decision to refuse permission to amend was a discretionary decision well within the generous ambit of the Employment Judge’s discretion, and it is clear from the authorities that the Employment Appeal Tribunal cannot interfere with such an exercise of discretion.  The decision was very far from perverse, and the Claimant has failed to cross the high threshold referred to in Yeboah.

61.	I add, without deciding the point, that the Respondent’s case that the amendment raises a weak case because the Claimant was making allegations rather than disclosing information seems to have substance.

62.	In the circumstances, the appeal stands dismissed.