EAT upholds refusal to allow late disability discrimination amendment
A prison officer who sought to add disability discrimination claims more than two years after dismissal has failed in her appeal against the employment tribunal’s refusal to permit the amendment.
Background
In CX v Secretary of State for Justice, the claimant, a former prison officer, brought claims of sex discrimination, religion or belief discrimination, harassment, victimisation, and whistleblowing-related detriment and dismissal following her dismissal during probation. The unfair dismissal claim could not proceed due to lack of qualifying service.
The claims went through two preliminary hearings, where the issues were clarified and amendments allowed to add whistleblowing complaints. Directions were set for a final hearing.
After disclosure in late 2023, the claimant, then representing herself, saw an Occupational Health report and HR note suggesting her depression and anxiety might meet the legal definition of disability. She applied in March 2024 to amend her claim to add disability discrimination (discrimination arising from disability and failure to make reasonable adjustments). She explained she had not previously realised mental ill health could amount to a disability in law.
By this stage, the case was fully prepared for hearing: the bundle and witness statements were exchanged, and the hearing was listed for March 2024. The employment tribunal refused the amendment, finding the new claims would expand the factual and legal enquiry, require additional disclosure, witness evidence, and hearing days, and cause hardship to the respondent.
The EAT decision
The claimant appealed, arguing that the tribunal had mischaracterised the amendment as new, failed to give weight to her explanation for delay, took irrelevant matters into account, and overlooked the significance of a declaration of disability discrimination.
The EAT dismissed the appeal. It held that the proposed amendment raised materially new issues, including whether the claimant was disabled, what the employer knew or ought to have known, and the impact of disability on absence and performance. The tribunal had considered her explanation but was entitled to find the delay unjustified. It had also acknowledged the non-financial importance of a discrimination finding, but concluded this was not necessary for her existing claims, which already permitted uncapped compensation and injury to feelings awards.
Learning points
Tribunals often show flexibility where litigants in person are involved, recognising the difficulties they face in framing claims. However, this case illustrates the careful balancing exercise undertaken: tribunals must also consider fairness to the employer, the impact on the timetable, and the additional burden of new claims. Employers should not assume that all late amendment applications will be refused, but this decision shows that tribunals will weigh prejudice to both sides and may reject amendments where they would significantly expand the scope of proceedings.