Are the Selkent factors the only ones that can be taken into account by the Tribunal when exercising its discretion to amend?
No, held the EAT in Pontoon v Shinh.
The Claimant had entered into a contract via his personal service company with a recruitment agency, Pontoon (Europe) Ltd, to provide consultancy services to National Grid Plc. He submitted a whistleblowing claim and stated on his ET1 that his employer was 'National Grid'. He later sought to add Pontoon as a party. The Claimant also sought to add a second claim against both parties that his name was 'blacklisted', preventing him from finding work.
Pontoon appealed on the basis that the tribunal failed to consider the Selkent factors properly; not balancing the prejudice to each party of permitting or refusing the amendment. However the EAT held that the tribunal had carried out the necessary balancing act. Whilst the potential prejudice to the Claimant was not expressly stated, this was so obvious that it was not necessary.
Some Selkent factors will warrant more discussion than others, depending on their relevance. The Selkent factors are not exhaustive; just because something is considered that is not on the list does not make it irrelevant per se.
Thanks to Oscar Davies, pupil at Outer Temple Chambers, for preparing this case summary.
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