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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

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Neutral Citation Number: [2025] EAT 55
Case No: EA-2023-000661-RN & EA-2023-000664-RN

EMPLOYMENT APPEAL TRIBUNAL

Rolls Building
Fetter Lane, London, EC4A 1NL
17 April 2025

B e f o r e :

HIS HONOUR JUDGE JAMES TAYLER
____________________

Between:
Glaucia Pereira
Appellant
- and -

Methods Business And Digital Technology Limited
Respondent

____________________

Daniel Matovu (instructed by Advocate) for the Appellant
Georgina Hirsch (instructed by Harrison Clark Rickerbys) for the Respondent

Hearing date: 3 April 2025

____________________

HTML VERSION OF JUDGMENT
____________________

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

  1. These are appeals against decisions of Employment Judge Rayner refusing an application by the claimant to amend to add a complaint of protected disclosure detriment/dismissal and refusing to revisit that decision.
  2. The appeal hearing

  3. This appeal was originally considered at the sift stage by HHJ Auerbach who was of the opinion that there were no reasonable grounds for bringing the appeal. His opinion was challenged pursuant to Rule 3(10) of the EAT Rules 1993. The appeal was permitted to proceed on two revised grounds by HHJ Beard. The claimant had the advantage of assistance and representation by Mr Matovu acting under the ELAAS scheme. Mr Matovu represented the claimant at this hearing instructed through Advocate.
  4. There have been very considerable problems in preparing for this hearing. The claimant did not cooperate with the respondent in producing a proper bundle of documents. The claimant insisted on providing her own bundle which had a large number of documents irrelevant to the appeal and she produced a very lengthy skeleton argument that went well beyond the grounds that have been permitted to proceed.
  5. This hearing was listed in person. On 2 April 2025, the claimant applied for a remote hearing, predominantly on medical grounds. The claimant provided one page of a report from Dr Chakraborty in support of the application. As the earlier pages were missing the report was undated. The claimant was repeatedly directed to provide the full report, but failed to do so. The claimant has corresponded at length with the EAT. The claimant submitted a lengthy document titled "written statement for the hearing" on 3 April 2025 that set out complex legal arguments.
  6. The claimant was permitted to attend by video while the application for her remote observation of the full hearing was considered. The claimant was again directed to provide the full medical report from Dr Chakraborty, but claimed that she was not able to do so. The claimant seemed sleepy. I was told that she had taken Diazepam. After the refusal of her application to amend her claim in the Employment Tribunal when the claimant attended the full hearing she appeared to be in a similar condition which resulted in the hearing being postponed.
  7. I was concerned about the claimant's apparent state and ability to participate because there was a possibility of her being called to give evidence on an issue that has arisen as to whether the claimant submitted an annex with her particulars of claim in the Employment Tribunal. The respondent asserted that I should find that, not only was the annex not submitted, the claimant was dishonest in asserting that it had been. The respondent was keen that this hearing should proceed if at all possible. The respondent accepted that cross-examination was not feasible and stated that the assertion of dishonesty would not be pursued at this hearing. We took a break so that Mr Matovu could speak with the claimant. Having done so, Mr Matovu said that he had instructions from the claimant to continue with the hearing. While I remain dissatisfied with the failure of the claimant to provide the full medical report from Dr Chakraborty, because the respondent urged me to proceed, I agreed that the claimant could attend remotely. I was told that the claimant had confirmed that she had read and understood the Remote Hearings Protocol and understood that to record the proceedings would be unlawful.
  8. The proceedings in the Employment Tribunal

  9. In September 2021, the claimant applied to work with the respondent as a Technical Architect to be placed with one of their clients. Put neutrally, during an "onboarding" process the respondent decided not to proceed. The respondent asserts that this was as a result of shortcomings in material provided by the claimant for security vetting in October 2021.
  10. The claimant submitted a claim form that was received by the Employment Tribunal on 15 February 2022. The claimant attached a document headed Summary of Claims, asserting complaints of disability discrimination, pregnancy discrimination and breach of contract. The claimant ticked the box at section 10 of the claim form that is applicable where there is a protected disclosure claim that a claimant suggests should be forwarded to a relevant regulator. Notwithstanding this, there was no protected disclosure complaint set out in the Summary of Claims.
  11. At the 3(10) Hearing the claimant asserted that she had also attached an annex to the claim form in the following terms:
  12. 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.
  13. The Employment Tribunal has no record of the annex being received. The claimant has not been able to provide any evidence that demonstrates that she did submit the annex with the claim form. The claimant has provided some screen shots that appear to be partial images cut and pasted from Microsoft Word properties that suggest that the annex may have been created the day before the claim form was submitted. That does not prove that it was submitted. On balance, I conclude that the annex was not submitted with the claim form as the Employment Tribunal has no record of it being submitted and, despite repeated opportunities to raise this point in the Employment Tribunal and EAT, the claimant did not assert that the annex was submitted with the claim form prior to the Rule 3(10) Hearing.
  14. The final hearing in the Employment Tribunal was listed for 3, 4 and 5 July 2023. The claimant applied to amend the claim form on 17 May 2023. So far as is relevant to this appeal the claimant sought to add complaints of protected disclosure detriment/dismissal. This was not one of those cases in which there were particulars of enormous length. The proposed "Amended Summary of Claimant's Claims" was still only 7 pages (single line spaced).
  15. The claimant was acting in person. She pleaded two protected disclosures:
  16. 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]
  17. The claimant pleaded that since raising concerns about being asked to discuss confidential matters with clients without having the appropriate security clearance there had been problems with her onboarding and eventually she did not start working for the respondent.
  18. The claimant stated:
  19. 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.

  20. In refusing the application to amend on 12 June 2023, Employment Judge Rayner held that the claimant had not sufficiently identified the protected disclosures:
  21. 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]
  22. Employment Judge Rayner stated that there was no explanation for the delay in applying to amend:
  23. 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]
  24. Employment Judge Rayner set out her conclusion:
  25. 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]
  26. The claimant sought a "reconsideration". Only a judgment can be reconsidered. In effect the request was to "vary, suspend or set aside" an earlier case management order pursuant to Rule 29 Employment Tribunal Rules 2013 (now Rule 30 Employment Tribunal Rules 2024). The application was refused by email dated 26 June 2024.
  27. The law

  28. In Selkent Bus Co Ltd v Moore [1996] ICR 836 Mummery J held at p843D:
  29. 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.
  30. Mummery J set out some factors that will generally be relevant to that balancing exercise: the nature of the amendment, the applicability of time limits and the timing and manner of the application. I noted in Vaughan v Modality Partnership [2021] ICR 535:
  31. 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

  32. In ground 1 of the amended appeal the claimant asserts:
  33. 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.
  34. Ground 1(a) is not made out as I do not accept that the annex was sent to the Employment Tribunal with the original claim form.
  35. The other parts of ground 1 are made out. The claimant was acting as a litigant in person at the time she made the application to amend. This has to be taken into account. The claimant asserted two disclosures. The claimant is wrong in suggesting that the first disclosure was made on 5 October 2021 because that is pleaded to be the date of an email sent from the respondent to the claimant. It is clear that the first disclosure was said to have been made between 5 October 2021 and the second disclosure on 19 October 2021. The claimant did not state to whom the first disclosure was made but it is clear that it was to a member of the respondent's staff engaged in the ongoing onboarding process. The claimant asserted that she was being asked to talk to a client without having the required security clearance. The claimant gave the date of the second disclosure as 19 October 2021. The disclosure was made to the respondent's Head of HR and repeated the concerns raised in the first disclosure. While the draft was not of a standard that would be expected of a lawyer, and there were some elements that required clarification, I do not consider that the Employment Tribunal could reasonably conclude that there was a fundamental failure to plead the protected disclosures.
  36. Further, it was not correct to state that the claimant had not given any clear explanation of the delay in making the application to amend. The claimant contended that documentation came to light as a result of disclosure of new documentation that led her to conclude that the difficulties in the onboarding process started after she made her first disclosure. The respondent contends that because the claimant asserts that she did attach the annex to the claim form when it was originally submitted she knew about the protected disclosure complaint from the outset. However, while the annex suggests a protected disclosure may have been made, it does not assert that the claimant had been subjected to detriment as a result, which is a necessary component of such a complaint.
  37. The respondent contends that the difficulties in onboarding did not commence after the first disclosure was made. However, because the Employment Tribunal concluded that the claimant had not provided an explanation for the delay in submitting the application to amend it did not consider the validity of the explanation.
  38. The Employment Tribunal stated that the claimant had not asserted any prejudice or explained why the amendment was necessary for her claim. If the reason for her treatment was the making of protected disclosures, the fact that the claimant had complaints of disability and pregnancy discrimination would not assist unless they were part of the reason for the treatment. In any event, the other above errors meant that the Employment Tribunal did not properly assess the balance of prejudice.
  39. Accordingly, the appeal is allowed. The success of the appeal against the original refusal of the application to amend means that it is not necessary to consider the appeal against the refusal to vary, suspend or set aside that order.
  40. Disposal

  41. The matter is remitted to the Employment Tribunal. The respondent may wish to consider whether to continue with its objection to the amendment. Case management will be for the Employment Tribunal. I appreciate that the consideration of the application to amend was made at speed with a fast approaching final hearing. I do not consider it is necessary to direct that any further consideration of the application to amend be undertaken by a different Employment Judge. It will be for the Regional Employment Judge to appoint an Employment Judge to deal with the matter on remission depending on availability.
  42. The claimant must focus on the core issues in the claim and co-operate with the respondent and the Employment Tribunal. She must do all she can to ensure that she is able to attend hearings and participate effectively, otherwise it may prove impossible to bring the matter to a fair hearing.


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