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Amendments to ET1

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In dealing with an amendment application, is the fact that the proposed amendment can be commenced as a fresh claim within time limits conclusive in favour of granting the application?

No, held the EAT in Patka v BBC.

Mr Patka claimed he was paid less than white colleagues amounting to direct race discrimination, but later sought to amend his claim to:-

(a) insert background information concerning a grievance;

(b) a claim for indirect discrimination; and

(c) another act of direct discrimination.

The tribunal allowed amendment (a) as background information only.

However, it refused the new claims (b and c) as they were raised too late and the prejudice to the BBC was too great (the case was fully prepared and there had already been a postponement).

Dismissing Mr Patka’s appeal, the EAT held that whilst Gillett v Bridge 86 Ltd was clear if a proposed amendment could otherwise be brought in time if presented afresh was a significant feature in favour of granting an application, whether Mr Patka’s indirect discrimination claim was in time turned on whether it was a continuing act. The tribunal was not wrong to hold the prejudice to the Respondent outweighed this possibility.

Thanks to Barnaby Large of No.18 Barristers Chambers for preparing this case summary.