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Can I amend my Employment Tribunal claim form once it's submitted?

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In order to bring a claim against your employer at an Employment Tribunal (ET), you must complete an ET1 claim form. It is vital that you complete this form correctly, as once your ET1 form has been sent, you cannot change anything on it unless you get permission from the ET. You may wish to amend your claim form due to an error in your initial submission, or because more information has come to light that wasn’t apparent before. Whether the ET will agree to amend the claim form depends on what the changes are and their significance to your case. In this article, our Employment team detail the facts that the ET will consider when deciding whether to allow amendments to a claim form and they examine the case that provides a guiding influence on the process.

How will an Employment Tribunal decide whether to allow amendments to a claim form?

When deciding whether to allow amendments to an ET1 form, the ET will have to decide whether your change(s) will cause ‘prejudice’ or difficulty for the other side (your employer or potential employer) and take into account at what point in the proceedings was the request made. You will be able to also add or remove a party from a claim using this procedure.

The ET will also take into account all of the circumstances of your case and will balance the injustice and hardship of allowing the amendment, against the injustice and hardship of refusing it. To assist the ET in this balancing act, the following factors are considered:

  1. What is the nature of the amendment:
    1. correcting administrative and typing errors;
    2. adding factual details to existing allegations;
    3. adding or removing of other labels for facts already pleaded; or
    4. making entirely new factual allegations, which change the basis of the existing claim.
  2. Are there any time limits – if it is proposed that a new claim or cause of action is to be added by amendment, the ET will consider whether that complaint is out of time and, if so, whether the time limit should be extended.
  3. The timing and manner of the application – the ET will consider why the application was not made earlier and why it is now being made, for example have new facts been discovered or new information appeared from documents that have been disclosed.

The case that is often referenced when considering ET1 amendments is Selkent Bus Co v Moore.  In this case, the Mr Moore brought a claim of unfair dismissal against Selkent Bus Company to the ET. He later requested to make an amendment to his claim form as he wanted to add that was he dismissed due to his ongoing involvement with a union. The amendment was initially allowed, but was appealed by Selkent Bus Company on the grounds that they had not been allowed to raise any objections to the new allegations. The appeal was upheld, as it was deemed that allowing the amendment would unnecessarily extend the hearing and would likely not change the outcome, or benefit Mr Moore.  The EAT confirmed that the ET had suitably balanced the injustice and hardship to each party. 

Is Selkent the only deciding factor?

While this case provides a guiding precedent, in Pontoon v Shinh the EAT held that Selkent factors are not the only elements that can be taken into account when deciding whether to amend an ET1 form.

In the case, the Mr Sinh had entered into a contract through his personal service company with a recruitment agency, Pontoon (Europe) Ltd, to provide consultancy services to National Grid Plc. When he later submitted a whistleblowing claim, he stated on his ET1 that his employer was 'National Grid'. He later wanted to add Pontoon as a party and add a second claim against both parties regarding his name being 'blacklisted', preventing him from finding work.

The ET allowed the amendment, which Pontoon appealed, claiming that the ET failed to consider the Selkent factors properly by not considering the impacts on each party if the amendment was allowed or refused. However, the EAT rejected this idea and held that the ET had carried out the necessary balancing act.

Some factors will warrant more discussion than others, depending on their relevance to the facts of the case. In Pontoon v Shinh, while adding another party to the claim does not fall under the factors presented by Selkent, the EAT held that those factors are not exhaustive; if something does not fall under the guiding principles of Selkent, it does not mean it cannot be considered.

This case highlights that all circumstances of the case will be considered by the ET when deciding whether to amend the ET1 and that while the Selkent factors are useful they are not the deciding features of a case.

Raising a claim against your employer can be a complex and daunting prospect and before you can submit your ET1 form to Tribunal, you must first go through ACAS Early Conciliation to see if an arrangement can be met outside of Court. You can find out more about ACAS Early Conciliation and how we can support you during the initial stages of your claim here.

To find how we can help you through Early Conciliation and, if needed, the ET1 form, contact our Employment team on 023 8071 7717 or email employment@warnergoodman.co.uk.

ENDS

This is for information purposes only and is no substitute for, and should not be interpreted as, legal advice.  All content was correct at the time of publishing and we cannot be held responsible for any changes that may invalidate this article.