Application to Amend a Claim or Response in the Employment Tribunal
Application to amend a claim or response
An application to amend a claim or response in the employment tribunal is a formal request to change the details of a party's case as initially set out in the claimant's ET1 form or the respondent's ET3 form.
When an application to amend is required
A party's case should be fully detailed in their original pleading (ET1 for claimants, ET3 for respondents). If a claimant wishes to argue a claim not in the ET1, or a respondent wants to assert a new ground of defence, an application to amend is necessary. It is generally not permissible to expand the scope of a claim or response through further particulars, correspondence, lists of issues, or witness statements.
How to make an application to amend
A tribunal can consider an application to amend at any stage of the proceedings. The application can be made in writing or orally at a hearing. To assist the tribunal, it is considered good practice to:
Provide a copy of the claim or response with tracked changes to show deletions and additions.
Have regard to the Presidential guidance on general case management.
Explain why granting the application would align with the overriding objective (dealing with cases fairly and justly).
Confirm the nature of the amendment, especially if it adds a new cause of action.
Confirm whether the amendment raises any time limit issues.
Explain why the application has not been made previously.
Must the proposed amendment be provided in writing?
While the ET rules do not specifically require a written amendment, case law emphasizes its importance for clarity and accuracy, especially in discrimination claims. Tribunals have been found to be wrong for allowing amendments without seeing the proposed text. Although there are exceptions for minor or clearly understood amendments, making a formal written application as early as possible is generally advisable. A tribunal cannot draft an amendment on a party's behalf, but it can make small adjustments for grammatical sense, legal correctness, or clarity, to ensure fairness and uphold the overriding objective, particularly if parties are unrepresented.
Factors the tribunal will take into account
The tribunal considers an application to amend in light of its duty to deal with cases fairly and justly (the overriding objective), which includes ensuring equal footing, proportionality, avoiding unnecessary formality and delay, and saving expense. When deciding on an amendment application alongside a strike-out application at the same hearing, the tribunal has case management discretion on the order of consideration, having regard to the nature of the applications.
Key principles established by case law:
Balance of injustice and hardship
The core test involves considering "any injustice or hardship which may be caused to any of the parties...if the proposed amendment were allowed, or as the case may be, refused". This requires a careful balancing exercise of all relevant circumstances.
Selkent factors
The relevant circumstances often include:
Nature of the amendment
Applications vary from minor corrections to substantial changes like introducing a new cause of action. Minor amendments are rarely problematic, but substantial ones require more careful discretion.
New cause of action
The tribunal distinguishes between amendments that "re-label" existing facts and those that add an entirely new, unconnected claim. Re-labelling, where facts already pleaded support a different legal claim (e.g., redundancy payment instead of unfair dismissal), often leads to a flexible approach and granted amendments. However, entirely different claims based on new facts are less likely to be allowed. The entirety of the claim form, and clarifications given by the claimant, are considered.
Automatic unfair dismissal vs. ordinary unfair dismissal
There has been conflicting EAT authority on whether a whistleblowing automatic unfair dismissal claim (Section 103A ERA 1996) is the "same" cause of action as an ordinary unfair dismissal claim for amendment purposes. The preferred view, as affirmed in Arian and MacFarlane, is to focus on the substance of the amendment and whether it raiss new legal or factual allegations, rather than its formal legal classification. There is no rigid rule that these are the same type of claim, and tribunals should weigh the justice of granting or refusing the amendment based on its factual and legal impact.
Time limits
This is particularly relevant if the proposed amendment introduces an entirely new, out-of-time complaint.
If an amendment is in time as a fresh claim, it's a significant factor in favour of granting the amendment, as the respondent would be in a similar position anyway. However, it is not determinative, and an amendment can still be refused if it causes undue prejudice or delay.
When to decide time limit issues
There has been conflicting EAT authority on whether time points must always be decided when determining an amendment application (Amey Services) or if they can be reserved for later (Galilee). The Galilee approach, which allows for reserving time points, especially where significant evidence is required, is generally preferred. If an amendment is allowed, and time taken into account, that matter is decided and can only be challenged on appeal.
The Presidential guidance states that if a new out-of-time claim is sought, the application should be dealt with at a preliminary hearing, where the tribunal will consider the usual tests for extending time (e.g., "just and equitable" for discrimination claims).
Timing and manner of the application
While applications can be made at any stage and delay alone is not a reason for refusal, the extent of delay is a factor. The applicant should explain why the application was not made earlier. Tribunals have wide discretion to allow late amendments if the evidence unfolds differently than pleaded, provided there is no injustice to the respondent. However, tribunals must adequately consider delay and added expense, and avoid advising on amendments. Late respondent applications may also be allowed if fair, especially if the claimant has had opportunity to respond.
Merits of the proposed claim
If a tribunal considers that a proposed amendment would clearly have no reasonable prospect of success, the application may be refused. Beyond that, the tribunal can weigh its assessment of the merits, but with caution. If the new claim would be in time and has better than no reasonable prospect of success, it would be difficult for a pessimistic view of merits to outweigh this fact. However, significant disruption due to a late application could justify refusal even for an arguable, timely claim.
Amending the parties to a claim
The tribunal has wide discretion to add or substitute a party if it's in the interests of justice and there are issues falling within its jurisdiction. This can be done on its own initiative or upon application. The application should be prompt, clearly name the new party, explain their liability, and detail when the need to add them arose and subsequent actions. A new party can be joined even if the time limit for a claim against them has expired, as time limits are a factor but not decisive. Amendments to correct the identity of claimants have also been upheld, particularly when the nature of the claim remains intact.
New claims arising after ET1 presented
When new events occur after the initial claim is presented (e.g., further harassment or victimisation), employees often want to rely on them. The EAT has advised that it's often appropriate to amend the original claim to include these new matters, rather than submitting a separate new claim, applying the Selkent test. This helps consolidate claims and avoid different procedural stages.
Preliminary Hearings
Applications to amend a claim or response are commonly considered at preliminary hearings. Such hearings can also be used for case management, determining preliminary issues (like time limits), strike-out applications, or exploring alternative dispute resolution. If a preliminary hearing is to determine a preliminary issue or strike out a claim, it must generally be held in public. Tribunals will often consider if parties want to amend their claims or responses at a case management preliminary hearing.An application to amend a claim or response is a formal request made to an employment tribunal to modify the details of a party's case as originally submitted in the claimant's ET1 form or the respondent's ET3 form.
Here's a comprehensive overview of amending a claim or response:
When an Application to Amend is Required
A party's case should be fully detailed in their original pleading (ET1 for claimants, ET3 for respondents). If a claimant wishes to argue a claim not set out in the ET1, or if a respondent wants to assert a new ground of defence, they must make an application to amend. It is generally not permissible to expand the scope of a claim or response through other means like further particulars, inter-party correspondence, lists of issues, or witness statements.
How to Make an Application to Amend
A tribunal can consider an application to amend at any stage of the proceedings. The application can be made in writing or orally at a hearing. Good practice dictates that parties should:
Provide a copy of the claim or response showing the proposed amendments using tracked changes.
Explain why granting the application would align with the overriding objective of dealing with cases fairly and justly.
Confirm the nature of the amendment, particularly if it's adding a new cause of action.
Confirm whether the amendment raises any time limit issues.
Explain any delay in making the application. Applications agreed upon by all parties can be considered by a legal officer, but disputed applications must be heard by an employment judge.
Requirement for a Written Amendment
While the ET rules do not explicitly require the proposed amendment to be in writing, case law emphasizes the importance of clear and accurate pleadings, especially in discrimination claims. Tribunals have been found to err by allowing amendments without having seen the proposed text. Although minor amendments might not require a formal written amendment, it is generally advisable to make a formal application in writing as early as possible. It's crucial to note that a tribunal does not have the power to draft an amendment on a party's behalf. However, it can make necessary changes to ensure an amendment properly reflects a party's allegations, makes grammatical sense, is legally correct, or ensures fairness to the other party, especially for unrepresented parties.
Acas Early Conciliation and Amendments
If a claimant wishes to amend their claim to add or substitute a new respondent or add a new cause of action, they are generally not required to undergo fresh early conciliation or obtain a new early conciliation certificate. This applies even if the new claim arose after the original early conciliation concluded and the ET1 was presented.
Factors the Tribunal Will Take Into Account
The tribunal considers amendment applications in light of its overriding objective to deal with cases fairly and justly. This includes ensuring parties are on an equal footing, dealing with cases proportionately, avoiding unnecessary formality and delay, and saving expense. Key Case Law Principles:
Balance of Injustice and Hardship: The fundamental test involves a careful balancing exercise of all relevant circumstances, weighing the injustice and hardship caused to any party if the amendment were allowed against the injustice and hardship if it were refused.
Selkent Factors: While not an exhaustive checklist, the tribunal will typically consider:
Nature of the amendment: This ranges from minor typographical errors to significant changes like introducing a new cause of action. Minor amendments are usually granted, but substantial ones require more careful discretion.
New Cause of Action: A distinction is drawn between amendments that "re-label" existing facts and those adding an entirely new claim unconnected to the original facts. Re-labelling, such as changing a claim from a "redundancy payment" to "unfair dismissal" when the facts support it, is often treated flexibly. However, adding a claim based on entirely different facts (e.g., a new detriment claim unrelated to pleaded dismissal facts) may be refused. The claim form as a whole, and any clarifications, are considered.
Automatic Unfair Dismissal vs. Ordinary Unfair Dismissal: There has been conflicting EAT authority on whether a whistleblowing automatic unfair dismissal claim (Section 103A ERA 1996) is the same cause of action as an ordinary unfair dismissal claim for amendment purposes. The prevailing view, following Arian and MacFarlane, is to focus on the substance of the amendment and whether it raises new factual or legal allegations, rather than merely its legal classification. The overarching principle remains the balance of justice.
Time Limits: This is particularly relevant if the proposed amendment introduces a new complaint that is out of time.
If a new claim could be brought in time as a fresh claim, this is a significant factor in favor of allowing the amendment. However, it's not determinative, and an amendment can still be refused if it causes undue prejudice or delay (e.g., causing postponement of a final hearing).
When to decide time limit issues: There has been conflicting EAT authority on whether time points must always be determined when deciding an amendment application (Amey Services) or if they can be reserved for later (Galilee). The Galilee approach, which holds that it is not mandatory to determine time points at the amendment stage (especially if significant evidence is required), is generally preferred. If an amendment is allowed after time has been taken into account, that decision can only be challenged on appeal.
The Presidential guidance indicates that if an application seeks to include a new, out-of-time claim, it should be dealt with at a preliminary hearing where the tribunal will consider the usual tests for extending time.
Timing and Manner of the Application: Applications can be made at any stage, and delay alone does not warrant refusal. However, the extent of a party's delay is a factor, and the applicant must explain why the application was not made earlier. Tribunals have a wide discretion to allow late amendments, particularly if evidence emerges differently than initially pleaded, provided there is no injustice to the respondent. Tribunals must, however, adequately consider the delay and potential expense caused by late amendments and avoid advising parties on how to amend. Late applications by respondents to amend their response may also be allowed if considered fair, especially if the claimant has a proper opportunity to respond.
Merits: If a tribunal considers that a proposed amendment would clearly have no reasonable prospect of success, the application may be refused. Beyond this, the tribunal can weigh its assessment of the merits, but with caution. If a new complaint would be timely and has more than no reasonable prospect of success, it is difficult for a pessimistic view of its merits to outweigh these factors. However, significant disruption to proceedings caused by a late application might justify refusal even for an otherwise arguable and timely complaint.
Amending the Parties to a Claim
The tribunal has wide discretion to add or substitute a party if it is in the interests of justice and issues exist between that person and existing parties within the tribunal's jurisdiction. This can be done on the tribunal's own initiative or upon application. An application to add a new party should be made promptly, clearly stating the new party's details, the reason for their liability, and when the need to add them became apparent. A respondent can be joined even if the time limit for bringing a claim against them has expired, as time limits are a factor but not decisive. Amendments to correct the identity of claimants (e.g., substituting trade unions for individuals in TUPE claims) have also been upheld.
New Claims Arising After ET1 Presented
When further events occur after an employee submits their initial claim (e.g., additional harassment or victimisation), it is common for the employee to want to rely on these. The EAT has provided guidance that an ET1 can be amended to include claims that arose after the original ET1 was presented, rather than requiring a separate new claim. The tribunal should apply the Selkent test in such situations. This approach helps consolidate claims and avoid having different claims at various stages of the tribunal procedure.
Preliminary Hearings
Applications to amend a claim or response are frequently considered at preliminary hearings, which serve various purposes including case management and determining preliminary issues (like jurisdictional or time limit points). When a preliminary hearing is set to determine a preliminary issue or consider striking out a claim, it must generally be held in public. Tribunals will often inquire if parties wish to amend their claims or responses during case management preliminary hearings.
Application to amend a claim or response
An application to amend a claim or response in the employment tribunal is a formal request to change the details of a party's case as initially set out in the claimant's ET1 form or the respondent's ET3 form.
When an application to amend is required
A party's case should be fully detailed in their original pleading (ET1 for claimants, ET3 for respondents). If a claimant wishes to argue a claim not in the ET1, or a respondent wants to assert a new ground of defence, an application to amend is necessary. It is generally not permissible to expand the scope of a claim or response through further particulars, correspondence, lists of issues, or witness statements.
How to make an application to amend
A tribunal can consider an application to amend at any stage of the proceedings. The application can be made in writing or orally at a hearing. To assist the tribunal, it is considered good practice to:
Provide a copy of the claim or response with tracked changes to show deletions and additions.
Have regard to the Presidential guidance on general case management.
Explain why granting the application would align with the overriding objective (dealing with cases fairly and justly).
Confirm the nature of the amendment, especially if it adds a new cause of action.
Confirm whether the amendment raises any time limit issues.
Explain why the application has not been made previously.
Must the proposed amendment be provided in writing?
While the ET rules do not specifically require a written amendment, case law emphasizes its importance for clarity and accuracy, especially in discrimination claims. Tribunals have been found to be wrong for allowing amendments without seeing the proposed text. Although there are exceptions for minor or clearly understood amendments, making a formal written application as early as possible is generally advisable. A tribunal cannot draft an amendment on a party's behalf, but it can make small adjustments for grammatical sense, legal correctness, or clarity, to ensure fairness and uphold the overriding objective, particularly if parties are unrepresented.
Factors the tribunal will take into account
The tribunal considers an application to amend in light of its duty to deal with cases fairly and justly (the overriding objective), which includes ensuring equal footing, proportionality, avoiding unnecessary formality and delay, and saving expense. When deciding on an amendment application alongside a strike-out application at the same hearing, the tribunal has case management discretion on the order of consideration, having regard to the nature of the applications.
Key principles established by case law:
Balance of injustice and hardship
The core test involves considering "any injustice or hardship which may be caused to any of the parties...if the proposed amendment were allowed, or as the case may be, refused". This requires a careful balancing exercise of all relevant circumstances.
Selkent factors
The relevant circumstances often include:
Nature of the amendment
Applications vary from minor corrections to substantial changes like introducing a new cause of action. Minor amendments are rarely problematic, but substantial ones require more careful discretion.
New cause of action
The tribunal distinguishes between amendments that "re-label" existing facts and those that add an entirely new, unconnected claim. Re-labelling, where facts already pleaded support a different legal claim (e.g., redundancy payment instead of unfair dismissal), often leads to a flexible approach and granted amendments. However, entirely different claims based on new facts are less likely to be allowed. The entirety of the claim form, and clarifications given by the claimant, are considered.
Automatic unfair dismissal vs. ordinary unfair dismissal
There has been conflicting EAT authority on whether a whistleblowing automatic unfair dismissal claim (Section 103A ERA 1996) is the "same" cause of action as an ordinary unfair dismissal claim for amendment purposes. The preferred view, as affirmed in Arian and MacFarlane, is to focus on the substance of the amendment and whether it raiss new legal or factual allegations, rather than its formal legal classification. There is no rigid rule that these are the same type of claim, and tribunals should weigh the justice of granting or refusing the amendment based on its factual and legal impact.
Time limits
This is particularly relevant if the proposed amendment introduces an entirely new, out-of-time complaint.
If an amendment is in time as a fresh claim, it's a significant factor in favour of granting the amendment, as the respondent would be in a similar position anyway. However, it is not determinative, and an amendment can still be refused if it causes undue prejudice or delay.
When to decide time limit issues
There has been conflicting EAT authority on whether time points must always be decided when determining an amendment application (Amey Services) or if they can be reserved for later (Galilee). The Galilee approach, which allows for reserving time points, especially where significant evidence is required, is generally preferred. If an amendment is allowed, and time taken into account, that matter is decided and can only be challenged on appeal.
The Presidential guidance states that if a new out-of-time claim is sought, the application should be dealt with at a preliminary hearing, where the tribunal will consider the usual tests for extending time (e.g., "just and equitable" for discrimination claims).
Timing and manner of the application
While applications can be made at any stage and delay alone is not a reason for refusal, the extent of delay is a factor. The applicant should explain why the application was not made earlier. Tribunals have wide discretion to allow late amendments if the evidence unfolds differently than pleaded, provided there is no injustice to the respondent. However, tribunals must adequately consider delay and added expense, and avoid advising on amendments. Late respondent applications may also be allowed if fair, especially if the claimant has had opportunity to respond.
Merits of the proposed claim
If a tribunal considers that a proposed amendment would clearly have no reasonable prospect of success, the application may be refused. Beyond that, the tribunal can weigh its assessment of the merits, but with caution. If the new claim would be in time and has better than no reasonable prospect of success, it would be difficult for a pessimistic view of merits to outweigh this fact. However, significant disruption due to a late application could justify refusal even for an arguable, timely claim.
Amending the parties to a claim
The tribunal has wide discretion to add or substitute a party if it's in the interests of justice and there are issues falling within its jurisdiction. This can be done on its own initiative or upon application. The application should be prompt, clearly name the new party, explain their liability, and detail when the need to add them arose and subsequent actions. A new party can be joined even if the time limit for a claim against them has expired, as time limits are a factor but not decisive. Amendments to correct the identity of claimants have also been upheld, particularly when the nature of the claim remains intact.
New claims arising after ET1 presented
When new events occur after the initial claim is presented (e.g., further harassment or victimisation), employees often want to rely on them. The EAT has advised that it's often appropriate to amend the original claim to include these new matters, rather than submitting a separate new claim, applying the Selkent test. This helps consolidate claims and avoid different procedural stages.
Preliminary Hearings
Applications to amend a claim or response are commonly considered at preliminary hearings. Such hearings can also be used for case management, determining preliminary issues (like time limits), strike-out applications, or exploring alternative dispute resolution. If a preliminary hearing is to determine a preliminary issue or strike out a claim, it must generally be held in public. Tribunals will often consider if parties want to amend their claims or responses at a case management preliminary hearing.An application to amend a claim or response is a formal request made to an employment tribunal to modify the details of a party's case as originally submitted in the claimant's ET1 form or the respondent's ET3 form.
Here's a comprehensive overview of amending a claim or response:
When an Application to Amend is Required
A party's case should be fully detailed in their original pleading (ET1 for claimants, ET3 for respondents). If a claimant wishes to argue a claim not set out in the ET1, or if a respondent wants to assert a new ground of defence, they must make an application to amend. It is generally not permissible to expand the scope of a claim or response through other means like further particulars, inter-party correspondence, lists of issues, or witness statements.
How to Make an Application to Amend
A tribunal can consider an application to amend at any stage of the proceedings. The application can be made in writing or orally at a hearing. Good practice dictates that parties should:
Provide a copy of the claim or response showing the proposed amendments using tracked changes.
Explain why granting the application would align with the overriding objective of dealing with cases fairly and justly.
Confirm the nature of the amendment, particularly if it's adding a new cause of action.
Confirm whether the amendment raises any time limit issues.
Explain any delay in making the application. Applications agreed upon by all parties can be considered by a legal officer, but disputed applications must be heard by an employment judge.
Requirement for a Written Amendment
While the ET rules do not explicitly require the proposed amendment to be in writing, case law emphasizes the importance of clear and accurate pleadings, especially in discrimination claims. Tribunals have been found to err by allowing amendments without having seen the proposed text. Although minor amendments might not require a formal written amendment, it is generally advisable to make a formal application in writing as early as possible. It's crucial to note that a tribunal does not have the power to draft an amendment on a party's behalf. However, it can make necessary changes to ensure an amendment properly reflects a party's allegations, makes grammatical sense, is legally correct, or ensures fairness to the other party, especially for unrepresented parties.
Acas Early Conciliation and Amendments
If a claimant wishes to amend their claim to add or substitute a new respondent or add a new cause of action, they are generally not required to undergo fresh early conciliation or obtain a new early conciliation certificate. This applies even if the new claim arose after the original early conciliation concluded and the ET1 was presented.
Factors the Tribunal Will Take Into Account
The tribunal considers amendment applications in light of its overriding objective to deal with cases fairly and justly. This includes ensuring parties are on an equal footing, dealing with cases proportionately, avoiding unnecessary formality and delay, and saving expense. Key Case Law Principles:
Balance of Injustice and Hardship: The fundamental test involves a careful balancing exercise of all relevant circumstances, weighing the injustice and hardship caused to any party if the amendment were allowed against the injustice and hardship if it were refused.
Selkent Factors: While not an exhaustive checklist, the tribunal will typically consider:
Nature of the amendment: This ranges from minor typographical errors to significant changes like introducing a new cause of action. Minor amendments are usually granted, but substantial ones require more careful discretion.
New Cause of Action: A distinction is drawn between amendments that "re-label" existing facts and those adding an entirely new claim unconnected to the original facts. Re-labelling, such as changing a claim from a "redundancy payment" to "unfair dismissal" when the facts support it, is often treated flexibly. However, adding a claim based on entirely different facts (e.g., a new detriment claim unrelated to pleaded dismissal facts) may be refused. The claim form as a whole, and any clarifications, are considered.
Automatic Unfair Dismissal vs. Ordinary Unfair Dismissal: There has been conflicting EAT authority on whether a whistleblowing automatic unfair dismissal claim (Section 103A ERA 1996) is the same cause of action as an ordinary unfair dismissal claim for amendment purposes. The prevailing view, following Arian and MacFarlane, is to focus on the substance of the amendment and whether it raises new factual or legal allegations, rather than merely its legal classification. The overarching principle remains the balance of justice.
Time Limits: This is particularly relevant if the proposed amendment introduces a new complaint that is out of time.
If a new claim could be brought in time as a fresh claim, this is a significant factor in favor of allowing the amendment. However, it's not determinative, and an amendment can still be refused if it causes undue prejudice or delay (e.g., causing postponement of a final hearing).
When to decide time limit issues: There has been conflicting EAT authority on whether time points must always be determined when deciding an amendment application (Amey Services) or if they can be reserved for later (Galilee). The Galilee approach, which holds that it is not mandatory to determine time points at the amendment stage (especially if significant evidence is required), is generally preferred. If an amendment is allowed after time has been taken into account, that decision can only be challenged on appeal.
The Presidential guidance indicates that if an application seeks to include a new, out-of-time claim, it should be dealt with at a preliminary hearing where the tribunal will consider the usual tests for extending time.
Timing and Manner of the Application: Applications can be made at any stage, and delay alone does not warrant refusal. However, the extent of a party's delay is a factor, and the applicant must explain why the application was not made earlier. Tribunals have a wide discretion to allow late amendments, particularly if evidence emerges differently than initially pleaded, provided there is no injustice to the respondent. Tribunals must, however, adequately consider the delay and potential expense caused by late amendments and avoid advising parties on how to amend. Late applications by respondents to amend their response may also be allowed if considered fair, especially if the claimant has a proper opportunity to respond.
Merits: If a tribunal considers that a proposed amendment would clearly have no reasonable prospect of success, the application may be refused. Beyond this, the tribunal can weigh its assessment of the merits, but with caution. If a new complaint would be timely and has more than no reasonable prospect of success, it is difficult for a pessimistic view of its merits to outweigh these factors. However, significant disruption to proceedings caused by a late application might justify refusal even for an otherwise arguable and timely complaint.
Amending the Parties to a Claim
The tribunal has wide discretion to add or substitute a party if it is in the interests of justice and issues exist between that person and existing parties within the tribunal's jurisdiction. This can be done on the tribunal's own initiative or upon application. An application to add a new party should be made promptly, clearly stating the new party's details, the reason for their liability, and when the need to add them became apparent. A respondent can be joined even if the time limit for bringing a claim against them has expired, as time limits are a factor but not decisive. Amendments to correct the identity of claimants (e.g., substituting trade unions for individuals in TUPE claims) have also been upheld.
New Claims Arising After ET1 Presented
When further events occur after an employee submits their initial claim (e.g., additional harassment or victimisation), it is common for the employee to want to rely on these. The EAT has provided guidance that an ET1 can be amended to include claims that arose after the original ET1 was presented, rather than requiring a separate new claim. The tribunal should apply the Selkent test in such situations. This approach helps consolidate claims and avoid having different claims at various stages of the tribunal procedure.
Preliminary Hearings
Applications to amend a claim or response are frequently considered at preliminary hearings, which serve various purposes including case management and determining preliminary issues (like jurisdictional or time limit points). When a preliminary hearing is set to determine a preliminary issue or consider striking out a claim, it must generally be held in public. Tribunals will often inquire if parties wish to amend their claims or responses during case management preliminary hearings.
Application to amend a claim or response
An application to amend a claim or response in the employment tribunal is a formal request to change the details of a party's case as initially set out in the claimant's ET1 form or the respondent's ET3 form.
When an application to amend is required
A party's case should be fully detailed in their original pleading (ET1 for claimants, ET3 for respondents). If a claimant wishes to argue a claim not in the ET1, or a respondent wants to assert a new ground of defence, an application to amend is necessary. It is generally not permissible to expand the scope of a claim or response through further particulars, correspondence, lists of issues, or witness statements.
How to make an application to amend
A tribunal can consider an application to amend at any stage of the proceedings. The application can be made in writing or orally at a hearing. To assist the tribunal, it is considered good practice to:
Provide a copy of the claim or response with tracked changes to show deletions and additions.
Have regard to the Presidential guidance on general case management.
Explain why granting the application would align with the overriding objective (dealing with cases fairly and justly).
Confirm the nature of the amendment, especially if it adds a new cause of action.
Confirm whether the amendment raises any time limit issues.
Explain why the application has not been made previously.
Must the proposed amendment be provided in writing?
While the ET rules do not specifically require a written amendment, case law emphasizes its importance for clarity and accuracy, especially in discrimination claims. Tribunals have been found to be wrong for allowing amendments without seeing the proposed text. Although there are exceptions for minor or clearly understood amendments, making a formal written application as early as possible is generally advisable. A tribunal cannot draft an amendment on a party's behalf, but it can make small adjustments for grammatical sense, legal correctness, or clarity, to ensure fairness and uphold the overriding objective, particularly if parties are unrepresented.
Factors the tribunal will take into account
The tribunal considers an application to amend in light of its duty to deal with cases fairly and justly (the overriding objective), which includes ensuring equal footing, proportionality, avoiding unnecessary formality and delay, and saving expense. When deciding on an amendment application alongside a strike-out application at the same hearing, the tribunal has case management discretion on the order of consideration, having regard to the nature of the applications.
Key principles established by case law:
Balance of injustice and hardship
The core test involves considering "any injustice or hardship which may be caused to any of the parties...if the proposed amendment were allowed, or as the case may be, refused". This requires a careful balancing exercise of all relevant circumstances.
Selkent factors
The relevant circumstances often include:
Nature of the amendment
Applications vary from minor corrections to substantial changes like introducing a new cause of action. Minor amendments are rarely problematic, but substantial ones require more careful discretion.
New cause of action
The tribunal distinguishes between amendments that "re-label" existing facts and those that add an entirely new, unconnected claim. Re-labelling, where facts already pleaded support a different legal claim (e.g., redundancy payment instead of unfair dismissal), often leads to a flexible approach and granted amendments. However, entirely different claims based on new facts are less likely to be allowed. The entirety of the claim form, and clarifications given by the claimant, are considered.
Automatic unfair dismissal vs. ordinary unfair dismissal
There has been conflicting EAT authority on whether a whistleblowing automatic unfair dismissal claim (Section 103A ERA 1996) is the "same" cause of action as an ordinary unfair dismissal claim for amendment purposes. The preferred view, as affirmed in Arian and MacFarlane, is to focus on the substance of the amendment and whether it raiss new legal or factual allegations, rather than its formal legal classification. There is no rigid rule that these are the same type of claim, and tribunals should weigh the justice of granting or refusing the amendment based on its factual and legal impact.
Time limits
This is particularly relevant if the proposed amendment introduces an entirely new, out-of-time complaint.
If an amendment is in time as a fresh claim, it's a significant factor in favour of granting the amendment, as the respondent would be in a similar position anyway. However, it is not determinative, and an amendment can still be refused if it causes undue prejudice or delay.
When to decide time limit issues
There has been conflicting EAT authority on whether time points must always be decided when determining an amendment application (Amey Services) or if they can be reserved for later (Galilee). The Galilee approach, which allows for reserving time points, especially where significant evidence is required, is generally preferred. If an amendment is allowed, and time taken into account, that matter is decided and can only be challenged on appeal.
The Presidential guidance states that if a new out-of-time claim is sought, the application should be dealt with at a preliminary hearing, where the tribunal will consider the usual tests for extending time (e.g., "just and equitable" for discrimination claims).
Timing and manner of the application
While applications can be made at any stage and delay alone is not a reason for refusal, the extent of delay is a factor. The applicant should explain why the application was not made earlier. Tribunals have wide discretion to allow late amendments if the evidence unfolds differently than pleaded, provided there is no injustice to the respondent. However, tribunals must adequately consider delay and added expense, and avoid advising on amendments. Late respondent applications may also be allowed if fair, especially if the claimant has had opportunity to respond.
Merits of the proposed claim
If a tribunal considers that a proposed amendment would clearly have no reasonable prospect of success, the application may be refused. Beyond that, the tribunal can weigh its assessment of the merits, but with caution. If the new claim would be in time and has better than no reasonable prospect of success, it would be difficult for a pessimistic view of merits to outweigh this fact. However, significant disruption due to a late application could justify refusal even for an arguable, timely claim.
Amending the parties to a claim
The tribunal has wide discretion to add or substitute a party if it's in the interests of justice and there are issues falling within its jurisdiction. This can be done on its own initiative or upon application. The application should be prompt, clearly name the new party, explain their liability, and detail when the need to add them arose and subsequent actions. A new party can be joined even if the time limit for a claim against them has expired, as time limits are a factor but not decisive. Amendments to correct the identity of claimants have also been upheld, particularly when the nature of the claim remains intact.
New claims arising after ET1 presented
When new events occur after the initial claim is presented (e.g., further harassment or victimisation), employees often want to rely on them. The EAT has advised that it's often appropriate to amend the original claim to include these new matters, rather than submitting a separate new claim, applying the Selkent test. This helps consolidate claims and avoid different procedural stages.
Preliminary Hearings
Applications to amend a claim or response are commonly considered at preliminary hearings. Such hearings can also be used for case management, determining preliminary issues (like time limits), strike-out applications, or exploring alternative dispute resolution. If a preliminary hearing is to determine a preliminary issue or strike out a claim, it must generally be held in public. Tribunals will often consider if parties want to amend their claims or responses at a case management preliminary hearing.An application to amend a claim or response is a formal request made to an employment tribunal to modify the details of a party's case as originally submitted in the claimant's ET1 form or the respondent's ET3 form.
Here's a comprehensive overview of amending a claim or response:
When an Application to Amend is Required
A party's case should be fully detailed in their original pleading (ET1 for claimants, ET3 for respondents). If a claimant wishes to argue a claim not set out in the ET1, or if a respondent wants to assert a new ground of defence, they must make an application to amend. It is generally not permissible to expand the scope of a claim or response through other means like further particulars, inter-party correspondence, lists of issues, or witness statements.
How to Make an Application to Amend
A tribunal can consider an application to amend at any stage of the proceedings. The application can be made in writing or orally at a hearing. Good practice dictates that parties should:
Provide a copy of the claim or response showing the proposed amendments using tracked changes.
Explain why granting the application would align with the overriding objective of dealing with cases fairly and justly.
Confirm the nature of the amendment, particularly if it's adding a new cause of action.
Confirm whether the amendment raises any time limit issues.
Explain any delay in making the application. Applications agreed upon by all parties can be considered by a legal officer, but disputed applications must be heard by an employment judge.
Requirement for a Written Amendment
While the ET rules do not explicitly require the proposed amendment to be in writing, case law emphasizes the importance of clear and accurate pleadings, especially in discrimination claims. Tribunals have been found to err by allowing amendments without having seen the proposed text. Although minor amendments might not require a formal written amendment, it is generally advisable to make a formal application in writing as early as possible. It's crucial to note that a tribunal does not have the power to draft an amendment on a party's behalf. However, it can make necessary changes to ensure an amendment properly reflects a party's allegations, makes grammatical sense, is legally correct, or ensures fairness to the other party, especially for unrepresented parties.
Acas Early Conciliation and Amendments
If a claimant wishes to amend their claim to add or substitute a new respondent or add a new cause of action, they are generally not required to undergo fresh early conciliation or obtain a new early conciliation certificate. This applies even if the new claim arose after the original early conciliation concluded and the ET1 was presented.
Factors the Tribunal Will Take Into Account
The tribunal considers amendment applications in light of its overriding objective to deal with cases fairly and justly. This includes ensuring parties are on an equal footing, dealing with cases proportionately, avoiding unnecessary formality and delay, and saving expense. Key Case Law Principles:
Balance of Injustice and Hardship: The fundamental test involves a careful balancing exercise of all relevant circumstances, weighing the injustice and hardship caused to any party if the amendment were allowed against the injustice and hardship if it were refused.
Selkent Factors: While not an exhaustive checklist, the tribunal will typically consider:
Nature of the amendment: This ranges from minor typographical errors to significant changes like introducing a new cause of action. Minor amendments are usually granted, but substantial ones require more careful discretion.
New Cause of Action: A distinction is drawn between amendments that "re-label" existing facts and those adding an entirely new claim unconnected to the original facts. Re-labelling, such as changing a claim from a "redundancy payment" to "unfair dismissal" when the facts support it, is often treated flexibly. However, adding a claim based on entirely different facts (e.g., a new detriment claim unrelated to pleaded dismissal facts) may be refused. The claim form as a whole, and any clarifications, are considered.
Automatic Unfair Dismissal vs. Ordinary Unfair Dismissal: There has been conflicting EAT authority on whether a whistleblowing automatic unfair dismissal claim (Section 103A ERA 1996) is the same cause of action as an ordinary unfair dismissal claim for amendment purposes. The prevailing view, following Arian and MacFarlane, is to focus on the substance of the amendment and whether it raises new factual or legal allegations, rather than merely its legal classification. The overarching principle remains the balance of justice.
Time Limits: This is particularly relevant if the proposed amendment introduces a new complaint that is out of time.
If a new claim could be brought in time as a fresh claim, this is a significant factor in favor of allowing the amendment. However, it's not determinative, and an amendment can still be refused if it causes undue prejudice or delay (e.g., causing postponement of a final hearing).
When to decide time limit issues: There has been conflicting EAT authority on whether time points must always be determined when deciding an amendment application (Amey Services) or if they can be reserved for later (Galilee). The Galilee approach, which holds that it is not mandatory to determine time points at the amendment stage (especially if significant evidence is required), is generally preferred. If an amendment is allowed after time has been taken into account, that decision can only be challenged on appeal.
The Presidential guidance indicates that if an application seeks to include a new, out-of-time claim, it should be dealt with at a preliminary hearing where the tribunal will consider the usual tests for extending time.
Timing and Manner of the Application: Applications can be made at any stage, and delay alone does not warrant refusal. However, the extent of a party's delay is a factor, and the applicant must explain why the application was not made earlier. Tribunals have a wide discretion to allow late amendments, particularly if evidence emerges differently than initially pleaded, provided there is no injustice to the respondent. Tribunals must, however, adequately consider the delay and potential expense caused by late amendments and avoid advising parties on how to amend. Late applications by respondents to amend their response may also be allowed if considered fair, especially if the claimant has a proper opportunity to respond.
Merits: If a tribunal considers that a proposed amendment would clearly have no reasonable prospect of success, the application may be refused. Beyond this, the tribunal can weigh its assessment of the merits, but with caution. If a new complaint would be timely and has more than no reasonable prospect of success, it is difficult for a pessimistic view of its merits to outweigh these factors. However, significant disruption to proceedings caused by a late application might justify refusal even for an otherwise arguable and timely complaint.
Amending the Parties to a Claim
The tribunal has wide discretion to add or substitute a party if it is in the interests of justice and issues exist between that person and existing parties within the tribunal's jurisdiction. This can be done on the tribunal's own initiative or upon application. An application to add a new party should be made promptly, clearly stating the new party's details, the reason for their liability, and when the need to add them became apparent. A respondent can be joined even if the time limit for bringing a claim against them has expired, as time limits are a factor but not decisive. Amendments to correct the identity of claimants (e.g., substituting trade unions for individuals in TUPE claims) have also been upheld.
New Claims Arising After ET1 Presented
When further events occur after an employee submits their initial claim (e.g., additional harassment or victimisation), it is common for the employee to want to rely on these. The EAT has provided guidance that an ET1 can be amended to include claims that arose after the original ET1 was presented, rather than requiring a separate new claim. The tribunal should apply the Selkent test in such situations. This approach helps consolidate claims and avoid having different claims at various stages of the tribunal procedure.
Preliminary Hearings
Applications to amend a claim or response are frequently considered at preliminary hearings, which serve various purposes including case management and determining preliminary issues (like jurisdictional or time limit points). When a preliminary hearing is set to determine a preliminary issue or consider striking out a claim, it must generally be held in public. Tribunals will often inquire if parties wish to amend their claims or responses during case management preliminary hearings.