Case update Macfarlane v Commissioner of Police
Macfarlane v Commissioner of Police [2023] EAT 111 considers the nature of an amendment during proceedings, and whether this change should be allowed in circumstances where an additional claim is alluded to.
On the premise that it should be denied because it raises a new legal or factual allegation in line with the overarching principle based on justice, which governs amendment applications.
Facts:
The Claimant worked as a Community Assessor for the Respondent between the period of 03 August and 10 December 2019. Her job was to assess candidates for police service, but she resigned after making complaints concerning her health and safety.
She brought a claim on 18 February 2020 for unfair dismissal, and constructive dismissal due to failures of health and safety, and lack of support after an incident on 19 November 2019 when she assessed a candidate as ‘alarming, dangerous and threatening’. She also listed various potential problems which she said made her workplace unsafe and dangerous. She reported these points and other possible solutions to her HR contact, but no action was taken.
The Respondent denied the claim within their grounds of resistance, citing that the allegations made were unfounded. The Respondent also claimed that the Claimant was not an employee but engaged casually, without guaranteed hours with an outside contractor (Shared Services Connected Ltd- SSCL), to manage recruitment processes.
In addition, the Respondent referred to the Claimant alluding to a claim for whistleblowing, however contended that the Claimant had failed to set out the legal basis for such a claim. Further, the Respondent asserted that such a complaint of whistleblowing would have no reasonable prospects of success (and therefore should be struck out) as the Claimant was alleged not to have suffered a detriment by any act or omission done by them.
A telephone case management discussion (CMD) took place on 16 June 2020, the Claimant (who was not legally represented) stated at the CMD hearing that her claim was purely about constructive dismissal and clarified she was not pursuing a whistleblowing claim.
Contrary to this, on 25 June 2021 the Claimant sent a document to the tribunal making it clear that she now wished to claim automatically unfair dismissal under section 103A the Employment Right Act 1996 (the Act) and that she had been subject to a detriment for making a protected disclosure contrary to section 47B the Act, saying that she had ‘now been able to clarify the legal basis of the claim under Whistleblowing Law’.
The Respondent replied by a letter dated 08 July 2020, stating that the amendment made new factual allegations, the detriment claims were now out of time and the amendments should not be allowed as part of the balancing exercise because there was no reasonable prospect of success.
Decision:
At the employment tribunal (ET), in refusing the Claimant’s amendment application, the employment judge placed some weight on what the Claimant had said at the earlier CMD hearing and decided that she was bringing a new type of legal claim which raised new factual allegations.
The employment judge also decided that the balance of hardship was in favour of the Respondent as he considered it unlikely the claimant would succeed in her claims.
The Claimant appealed the decision of the EJ and the appeal was subsequently dismissed citing the following reasons:
Firstly, in considering the nature of an amendment, it was stated that a tribunal should focus on the substance of the amendment and whether it raises new legal or factual allegations.
Consequently, it was the employment appeal tribunal’s (EAT) view that there was no legal rule that a claim of automatically unfair dismissal under section 103A is the same cause of action or the same type of legal claim as an existing complaint of unfair dismissal.
Secondly, in deciding whether the amendments raised new complaints, it was the EAT’s view that the EJ was entitled to place some weight on the Claimant’s clarification of her claim at the CMD hearing.
It was asserted that a claim form does not sit in a vacuum and its author is often in the best place to explain what the claim is meant to allege factually, even if they are unable to do so themselves; that onus of legal classification should fall to the employment judge.
Finally, it was the EAT’s view that the EJ, in the first instance was entitled to have regard to the merits of the claim when assessing the balance of hardship and this approach did not display any error of law.
Lessons learnt:
This case illustrates the importance of establishing clarity concerning which claims are sought after by Claimants. Whilst a tribunal will do its best to accommodate a litigant in person, it also must balance the effects that a change will have on the interest of justice and the hardship it would place on the Respondent.
Author: Lawrence Ofori | Solicitor | Employment team
