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Practice and Procedure: Amendments

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Is adding a complaint of direct disability discrimination to one of discrimination for reasons related to a disability, on the same facts, a 're-labelling' exercise?

No, held the EAT in Reuters v Cole.

The Claimant brought a claim in June 2016 for discrimination arising from disability. At a preliminary hearing in August 2017, the Claimant's solicitors sought to add (apparently out of time) claims of direct and indirect discrimination said to arise from the facts in the Claim Form. The Claimant argued that under the well-known Selkent principles, this was 're-labelling' the issues originally raised. The amendment was allowed on the basis that no new facts or matters were relied upon. The Respondent appealed.

The EAT upheld the appeal. Adding a claim of direct discrimination would not be a mere re-labelling exercise; a direct discrimination claim would involve a greater degree of factual enquiry under the more onerous test for direct discrimination. New factual inferences would have to be drawn, so the factors relevant to the discretion to allow an amendment had to be considered.

The EAT considered divergent EAT authority on whether, when considering an application to amend, a time point should be definitively determined, or if a Claimant need only demonstrate a prima facie case that the time limit could be met. Preferring the latter approach, but without determining the issue, it remitted the amendment to the tribunal for reconsideration.

Thanks to Ed McFarlane of Deminos HR for preparing this case summary.