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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

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