![]() |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] [DONATE] | |
United Kingdom Employment Appeal Tribunal |
||
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Pereira v Methods Business and Digital Technology Ltd (PRACTICE AND PROCEDURE) [2025] EAT 55 (17 April 2025) URL: https://www.bailii.org/uk/cases/UKEAT/2025/55.html Cite as: [2025] EAT 55 |
[New search] [Printable PDF version] [Help]
Fetter Lane, London, EC4A 1NL |
||
B e f o r e :
____________________
Glaucia Pereira |
Appellant |
|
- and - |
||
Methods Business And Digital Technology Limited |
Respondent |
____________________
Georgina Hirsch (instructed by Harrison Clark Rickerbys) for the Respondent
Hearing date: 3 April 2025
____________________
Crown Copyright ©
SUMMARY
PRACTICE AND PROCEDURE
The Employment Tribunal erred in law in considering the claimant's application to amend. The matter is remitted to the Employment Tribunal.
HIS HONOUR JUDGE JAMES TAYLER
Introduction
The appeal hearing
The proceedings in the Employment Tribunal
Extra Observation
Regarding point 3 in section Background, the Claimant tried to discuss with the Respondent about the legal implications of receiving classified information from ONS-IDP without having a security check in place, as she was required to discuss classified information with ONS representatives, without being informed that this conversation would lead to an unlawful practice, because she did not have any security clearance in place. However, the Respondent avoided the subject, and although incorrect, this seems to be a common practice among the Respondent representatives. The Claimant is not aware if this can be discussed during this court proceedings nor she knows which law may refer to this matter, but she wishes to clarify which remedy must be in place, to avoid causing her damages.
7. On the 5th October 2021, the Claimant received an email regarding on-boarding. However, she found it strange, because she was still checking the written contract for corrections and her first day in work was agreed to be the 18th October, so why to on-board on the 5th October? Moreover, the message indicated a BPSS request. In the first opportunity, the Claimant asked on a call, why BPSS. Only at this time, the Claimant was made aware that discussions on ONS information was subject to BPSS. The Claimant then expressed her ethical and legal concerns about being asked to discuss classified information with clients of the Respondent without the right level of security clearance in place, particularly, about discussing classified information from ONS when she was just a job applicant and had absolutely no form of clearance check in place (Protected Disclosure concerns).
19. On the 19th October 2021, the Head of HR called the Claimant and asked for a character reference to cover a period in 2021 when the Claimant was not employed, dedicating to personal endeavours and looking after her health. As always, the Claimant clearly asked if that was all they needed from her to conclude BPSS, and once more indicated that she could visit the office with original documents. Once more, the Respondent behaved as if everything was progressing as normal and as if the character reference was the final matter to conclude BPSS.
20. Moreover, because the Claimant had noticed that after she expressed Protected Disclosure concerns, the security / on-boarding / IT team seemed to be behaving strangely, as indicated in paragraphs 14 to 16 above, she explicitly indicated that she did not intend to cause problems to the Respondent but that she had to express her concerns, and asked not to be targeted as a consequence. Indeed, she indicated that she was feeling pregnant sick but needed to test, and that she suffered from a disability, to explain that her concerns were also for not being immersed in unnecessary ethical and legal problems that could negatively affect her health further. [emphasis added]
27. The Respondent did not disclose all information during the SAR, and never informed the Claimant about a partial disclosure. This, together with the multiple lies told by the Respondent, prevented the Claimant from having access to important pieces of information that only now in the course of this court case came to light, in the Bundle of Evidence. Now, looking at the Respondentīs internal messages, combined with the communication they had with the Claimant, the Claimant believes that the chronology indicates that:
27.1. After expressing Protected Disclosure concerns, in early October 2021, the Respondent started victimising the Claimant, by placing obstacles in her on-boarding, lacking clarity, coordination and reliability. Occasionally lying instead of explaining the facts, hiding and avoiding the Claimant, and giving the fake impression that the Claimant was doing something wrong.
The Claimant's application does not set out in clear terms when she says she made her disclosure who she made it to or what it was that she said which she considered to be in the public interest or which she reasonably believed tended to show that one of the matters set out in section 43B(1) of the Employment rights Act 1996.
It is for the Claimant making an application to amend to set out clearly the legal basis of that amendment and to identify each of the elements of the alleged new claim.
The application as it stands does not identify the elements of the alleged offence and it is not one which the Respondent can therefore sensibly respond to or which the tribunal could determine. [emphasis added]
The Claimant has provided no clear explanation as to why she has left it until the middle of May 2023, with a hearing listed on 3,4,5 July 2023 to make this application. Her claim to the employment tribunal was made in February 2022 and there has been a case management hearing by telephone and a preliminary hearing in person since that date, both of which discussed and identified the issues in the claim. [emphasis added]
The Claimant has not identified why these matters are necessary to her claim or prejudice she might suffer were the application to be refused. On the information available the balance of prejudice is against the Respondent, in that the application is wholly unclear and unparticularised, the matters referred to are already addressed by the existing claims, and the Respondent has very little opportunity or time to address the matters.
Lastly there must be a real concern that the hearing itself would be at risk both because of the nearness of that hearing but also because of the length of the hearing the Claimant has made no suggestions ask too how to address any additional evidence, additional documents or any other matters that may affect the hearing. [emphasis added]
The law
Whenever the discretion to grant an amendment is invoked, the tribunal should take into account all the circumstances and should balance the injustice and hardship of allowing the amendment against the injustice and hardship of refusing it.
16. The list that Mummery J gave in Selkent as examples of factors that may be relevant to an application to amend ("the Selkent factors") should not be taken as a checklist to be ticked off to determine the application, but are factors to take into account in conducting the fundamental exercise of balancing the injustice or hardship of allowing or refusing the amendment. Mummery J specifically stated he was not providing a checklist at p 843F: "What are the relevant circumstances? It is impossible and undesirable to attempt to list them exhaustively."
The Appeal
The learned Judge adopted the wrong approach to determining the Claimant's original
amendment application by email dated 17 May 2023, accompanied by an attached draft
of Amended ET1 Grounds and Claims containing 36 numbered paragraphs, by failing
to have regard to the following relevant matters which ought to have been taken into
account in the exercise of the discretion whether to allow the amendment but were not
properly considered nor assessed, namely:
(a) What was pleaded in the Annex to the original ET1 Grounds headed 'Extra
Observation' and the extent to which the proposed amendment was seeking to
introduce a new area of factual inquiry that differed from that original pleading, as
per Abercrombie v Aga Rangemaster Ltd [2014] ICR 209 and New Star Asset
Management Holdings Ltd v Evershed [2010] EWCA Civ 870.
(b) That the claimant had set out in her draft amendment the 'protected disclosure
concerns' which she had initially raised on or about 5 October 2021 and later again
with the Head of HR on or about 19 October 2021 and which tended to show a
disclosure qualifying for protection under section 43B(1)(b) of the Employment
Rights Act 1996.
(c) That the claimant had in fact offered some explanation as to why she had left it so
late to make the application to amend (in mid-May 2023) in that she had only then,
during preparation of the hearing bundle, gained access to important information
recently disclosed by the respondent which justified amending her claims. This new
information related to internal communications of the respondent showing that
problems were only raised about completing the onboarding process for the
claimant after she had raised her protected disclosure concerns and that the
onboarding team had been liaising closely with other departments including HR and
Security Clearance in obstructing the completion of her on-boarding, contrary to
what was pleaded in the Grounds of Resistance.
(d) And consequently the balance of prejudice was not properly considered and/or
assessed in the circumstances taking into account all relevant factors.
Disposal