Want to talk to an expert employment law solicitor?

You'll receive a callback from a specialist within an hour

On occasion, a stated Ground of Appeal or pleading needs to be altered very late in the day. This can be down to any number of reasons: new information, unforeseen delay, etc., and there are a number of considerations which the court must make when weighing up whether to allow such amendments. This was addressed by the EAT in the recent judgment of Smith v Pimlico Plumbers Ltd [2020] UKEAT/0003/20/DA, the most recent in the long-running saga between Mr Smith and Pimlico Plumbers Ltd.

The background

Mr Smith had been employed by Pimlico Plumbers, and brought two claims to the ET: first, a holiday pay claim, and second, a disability discrimination claim. Both claims were dismissed, and both were appealed to the EAT. The instant appeal relates to the disability discrimination claim.

The disability appeal

There were three Grounds of Appeal:

  1. “Ground 1 – The ET erred by treating the termination of employment on 3 May 2019 (sic) as an unfair constructive dismissal pursuant to s95(1)(c) ERA rather than a discriminatory dismissal pursuant to section 39(7)(b) EqA”
  2. “Ground 2 – The ET erred by failing to consider whether the Claimant was entitled to terminate the employment because of the Respondent’s conduct…”
  3. “Ground 3 – The ET erred in its analysis on the application of justification s.15(1)(b)…”

The actual argued grounds of appeal were quite starkly different, and the application to amend them came on the day of the hearing. In relation to Ground 1, the Claimant sought in fact to argue that the ET erred by not extending the implied terms of mutual trust and confidence into the Claimant’s employment relationship. This was mentioned once, briefly, in one sub-paragraph of the Ground, but certainly did not reflect the overall Ground as it had been pleaded.

As for Ground 2, the Claimant accepted that the ET had in fact considered this matter, and instead tried to aver that his intended argument was in fact that failed to engage with the Malik test (a key component of a constructive dismissal claim). This was quite substantially different to the pleaded Ground, once again.

Ground 3 was a much less drastic amendment, at least in terms of ink on the page. The Claimant sought to remove the words “justification”, and “(1)(b)”. This essentially would leave the Ground to read “The ET erred in its analysis on the application of s.15”. Although it’s not a large amount of change on the page, it quite clearly changes the entire thrust of the Ground.

The Khukados factors

In determining whether to allow the amendments, Choudhury J(P) had to consider the factors from Khudados v Leggate and others [2005] ICR 1013. These relate to whether the party wishing to amend had acted without delay (or had accounted for any delay), the prejudice caused to the parties, the merits of the proposed amendments, and whether amendment would cause further delay.

In this case, the EAT considered that the balance weighed against permitting any of the Grounds to be changed, as they represented new and unmeritorious grounds of appeal that are not properly contained in the Grounds of Appeal or for which permission was granted. As such, the application to amend was denied, and as such the appeal was dismissed as it fell away.

Our lawyers’ comments

Chris Hadrill, the Partner in the employment team at Redmans, commented on the case as follows: “This case – the most recent in the extended saga between Mr Smith and Pimlico Plumbers – reiterates some key principles that apply when seeking to amend a particulars of claim (or a defence).”

Link to judgment: https://www.bailii.org/uk/cases/UKEAT/2020/0003_20_1612.html

Want to talk to an expert employment law solicitor?

You'll receive a callback from a specialist within an hour

Share →

Our awards

Request a callback

    Your first name (required)

    Your last name (required)

    Your email (required)

    Your telephone number (required)

    Brief details of your enquiry


    4.80 Average

    312 Reviews


    I have been very pleased with the support I got from Redmans Solicitors on my case with my employer. Caroline has always helped me to put things in perspective and showed me different scenarios ultimately to help me taking the right decision. She was very professional and always available when I needed, and at the same time also emphatic which I found also really important to establish a strong relationship. Will definitely recommend!

    Posted 1 day ago


    Prompt and efficient response to my enquiries. Excellent negotiating skills with my employer which considerably improved the terms of my settlement agreement.

    Posted 2 days ago


    Very quick and professional service , Rana was very helpful

    Posted 2 days ago

    James G

    Very professional, knowledgeable and kept me informed at every stage of my case. I would highly recommend Redmans.

    Posted 4 days ago

    Pravina P

    Chris was really good and help solve my issues with current company. I would recommend him to anyone.

    Posted 1 week ago

    Paul L

    Sacha was extremely helpful in my matter. I would not hesitate you use Sacha or Redmonds again. Everyone was very helpful.

    Posted 2 weeks ago

    Monique N

    I had Mel Chin helping me with a settlement and she was very professional and reliable throughout my case. Mel provided me with a good understanding of what was happening and gave suggestions on routes I could take. My case was resolved and closed promptly although the opposing side were very difficult to deal with. A very big thank you to Mel and Chris.

    Posted 2 weeks ago

    Jackie C

    My first ever experience needing the services of a solicitor; cannot speak highly enough of Mel and Chris’s personable, reassuring and straight to the point advice in dealing with my settlement agreement. They put me at ease during an extremely stressful time. I am equally as happy with the outcome, as l am their professional services.

    Posted 2 weeks ago


    Really happy with the service. All very efficient. Mel rattled through things very fast, however was great whenever I needed to stop and ask a question! Would definitely return to Redmans if I ever needed Legal advice.

    Posted 3 weeks ago

    Peter F

    Very helpful and clear advice, would highly recommend.

    Posted 3 weeks ago

    William A

    Second time I have had to use Redmans. They did not disappoint. They are fast , efficient and friendly. I have already recommended them to friends and colleagues. I hope I dont have to use them again but if I have to , they are the solicitors for me.

    Posted 3 weeks ago

    Fleeta C

    Great service with tantastic communications. The solicitor responsible is extremely knowledgeable and was responsible for bringing a timely and desired solution.

    Posted 3 weeks ago

    Veronica M

    Extremely helpful, starting from a request for advice at very short notice, to dedicating time for me to understand and review all documents thoroughly.

    Posted 3 weeks ago

    Sophie R

    Very efficient and professional service. Chris was very empathetic, knowledgeable and personable. Highly recommended.

    Posted 4 weeks ago

    Melanie M

    Very happy with the detailed advice provided from Redmans. They also helped me to secure a higher settlement than originally offered by my employer and were extremely diligent. I first spoke with Chris at relatively short notice and then Sacha dealt with my case. Would definitely recommend and use again in the future if needed.

    Posted 1 month ago


    Redmans helped me with a work related issue, which was resolved quickly and professionally. I would definitely recommend this company.

    Posted 1 month ago

    James F

    Great people, really friendly and professional helped with everything that I needed.

    Posted 1 month ago

    Anusha S

    My case was handled by Sacha who was very thorough and helped me to achieve a good outcome with my employer. Sacha was very personal, professional and helped me during quite a stressful time, so I am hugely grateful to her and to Redmans. This was my first time engaging with a law firm so I wasn't sure what to expect but I can definitely say that it was a good experience overall and I ended up better off due to having the help of an experienced and proactive solicitor on my side.

    Posted 1 month ago

    Diane P

    So grateful that I contacted Redmans to deal with my Redundancy Agreement. Everything from the initial call to the completion of the matter was professional, efficient and effective. I was listened to, had everything explained simply and kept informed of every step. I received super advice and the costs were very competitive. I would highly recommend them to anyone seeking similar help. First class service - thank you

    Posted 1 month ago

    Chris L

    It was a very efficient and effective service - Would recommend.

    Posted 1 month ago


    Exceeded my expectations. Very professional and proactive. I highly recommend them.

    Posted 1 month ago