In MacFarlane v Commissioner of Police of the Metropolis, the appellant appealed against an employment tribunal's refusal to grant her application to amend her claim against the respondent.
The appellant had worked for the respondent as an assessor of candidates for the police service. She resigned after making complaints about health and safety.
She alleged that she had assessed a dangerous candidate in an unsafe workplace without security, and that she had repeatedly reported such problems to HR, but no action had been taken and she had felt forced to leave her job. She claimed that she had been constructively dismissed and initially indicated that she was making a whistleblowing claim.
At a case management hearing, the appellant said that she was not pursuing the whistleblowing claim. The focus switched to her constructive dismissal claim in relation to health and safety under the Employment Rights Act 1996. Shortly afterwards she said that she wanted to claim automatically unfair dismissal under the Act, and that she had been subject to a detriment for making a protected disclosure contrary to the Act.
The respondent countered that the:
The appellant responded that the amendment only clarified the legal basis of her claim. However, the tribunal decided that the amendment was not simply a relabelling, but added to the factual and legal bases of the claim. It placed weight on the appellant's earlier statement that she was not bringing a whistleblowing claim. It also found that the claim was out of time and was unlikely to succeed, so that the balance of hardship was in the respondent's favour.
The appellant submitted that the tribunal had erred in:
At appeal, when deciding whether to allow the amendment, the three factors were its nature, the applicability of time limits, and the timing and manner of the application. The overarching principle was the balance of justice.
Tribunals had to take account of all the circumstances, and balance the injustice and hardship of allowing the amendment against the injustice and hardship, or refusing it. The focus had to be on the substance of the amendment, not its legal form.
Statutory time limits were a relevant, but not decisive, factor because an amendment application should become a means of circumventing limitation periods. The weight to be given to the consideration depended on the extent to which the new claim was in substance similar to the original claim. If a claim of automatically unfair dismissal was wholly different from the case originally pleaded, that was a factor against permission to amend.
If the new claim was a mere relabelling or was closely connected to allegations in the existing claim, factors were likely to point in favour of amendment. There was no legal rule that a claim of automatically unfair dismissal under the Act was the same cause of action, or same type of legal claim as an existing complaint of unfair dismissal.
The tribunal had not erred in deciding that the whistleblowing claim was a new type of legal claim because it changed the factual and legal basis of the previous claim. There was a distinction between resigning because of a:
It was held that the tribunal had been entitled to consider what she had said at the case management hearing. The claim form had not asserted that the disclosures had played any part in the alleged unsafe conditions which had led to her resignation. The tribunal had asked whether she was complaining that the lack of response was due to her making disclosures, and her answer had been no. It was not realistic or practical for a tribunal to ignore such a clarification.
The claim form did not sit in a vacuum and its author was often best placed to explain what it intended to allege factually, even if the proper legal classification of the complaints might fall to the tribunal. The tribunal's comparison of the original claim and the amendment, alongside with what the appellant had said, supported the conclusion that she was asserting a new factual case that the failure to protect her health and safety arose because she had made protected disclosures, rather than being the result of the respondent's inaction.
At appeal, it was held that the tribunal had provided sufficient reasons as to why the claim had little prospect of success, and it had been entitled to have regard to the merits of the claim in assessing the balance of hardship. Its approach to that factor did not display any error of law.
"For the reasons set out above, I do not uphold either of the grounds of appeal".
The appeal was dismissed.
