Employment Case Study: Vaughan v Modality Partnership

In Vaughan v Modality Partnership, the Employment Appeal Tribunal provides guidance on the correct procedure to adopt when considering applications to amend tribunal pleadings.

Facts of Vaughan v Modality Partnership

The claimant (V) brought claims that she had suffered detriments and been automatically unfairly dismissed as a result of having made protected disclosures.

The final hearing in the claim was due to start on 1 July 2019, however because of the unavailability of tribunal members, the hearing did not take place and was postponed.

The claimant subsequently applied to amend her claim to add two further alleged protected disclosures.

Permission to amend was refused by the employment tribunal before the claimant appealed to the EAT.

The claimant’s primary ground of appeal was that the tribunal only considered the hardship that would be caused to the respondent by the grant of the application and failed to give any consideration to the hardship or injustice that would be caused to the claimant by refusing it.

Decision

In dismissing the appeal, His Honour Judge Tayler held there was “just enough” in the tribunal’s brief judgment to show that it had conducted the appropriate balancing exercise.

HHJ Tayler went on to set out detailed guidance on the correct procedure to be followed by tribunals and representatives when considering applications to amend pleadings. These are:

1. The tribunal has a wide discretion when it comes to case management, including applications to amend.
2. Case management decisions will often be brief and the EAT must avoid an excessively minute analysis of them. However, if an employment judge has, on a fair reading of the judgment, failed to take account of a relevant matter or failed properly to apply the law, it is necessary to interfere.
3. The principles in Selkent are not a checklist to be ticked off to determine an application to amend. They are factors to be taken into account in conducting the fundamental exercise of balancing the injustice or hardship of allowing the amendment against the injustice and hardship of refusing it.
4. Representatives should start by considering what the real, practical consequences of allowing or refusing the amendment will be. An employment judge may need to adopt a more inquisitorial approach when dealing with a litigant in person.
5. Where the prejudice of allowing an amendment is additional expense, consideration should be given as to whether the prejudice can be ameliorated by an award of costs, provided that the other party can meet it.
6. An amendment that would have been avoided had more care been taken with the pleadings is an annoyance and takes up limited tribunal time and cost. However, while these are relevant considerations, the key factor remains the balance of justice.

Key Takeaways

This case serves as a reminder of the Selkent principles and that the focus remains on the balance of injustice/hardship when considering an amendment. When drafting or responding to an amendment application, employment practitioners should focus on considering what the real, practical consequences of allowing or refusing the amendment will be.

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Markus Schober  is an associate in our employment law team. If you have any questions or concerns related to the points raised in this article, please get in touch.