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Amending Claims

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[Thanks to Claire Darwin of Matrix Chambers for preparing this case summary]

We all know what factors an ET should consider when deciding whether to permit a party to amend his or her statement of case, but what factors can an employment tribunal not take into account?

According to the EAT's decision in Woodhouse v Hampshire Hospitals NHS Trust the employment tribunal cannot take into account the strength of the evidence relating to the claims sought to be introduced by way of the amendment, in circumstances in which disclosure relating to those claims has not occurred.

In Woodhouse the claimant sought to amend his case 'on the eve of battle', namely the day before the three day hearing of his unfair dismissal claim was due to commence. He sought to introduce claims of disability discrimination and whistle-blowing.

The EAT (HHJ McMullen QC) held that the employment tribunal erred in law when considering the application to amend, because the employment tribunal had taken into account its views and the views expressed by the Respondent's counsel about the underlying merits of the proposed new claims. Those views were based on the limited material before the employment tribunal. However as the proposed claims were wholly new claims (not 'mere relabelling exercises'), there had been no disclosure of documents relevant to the proposed new claims.

The EAT clarified that an employment tribunal is permitted to consider the merits of proposed claims when assessing the balance of hardship and the balance of prejudice, but that unless the case is 'utterly hopeless' an employment tribunal should assume that the proposed claims are arguable. Further guidance on the matters which an employment tribunal should identify and take into account when determining the balance of hardship test was recently given by Luba QC in Redhead v London Borough of Hounslow UKEAT/0409/11/MAA.