When considering whether to allow an amendment application, tribunals must examine the allegations in the amended claim and the extent to which they differ from those in the original. In MacFarlane v Commissioner of Police of the Metropolis, the EAT held that as the tribunal had carried out that comparison, it could not be said to have made an error of law.
Basic facts
Ms MacFarlane started work as a Community Assessor for the Met Police on 3 August 2019, assessing candidates who wanted to join the service. She was engaged on a casual basis through an outside contractor. After an incident on 19 November, she complained that her workplace was unsafe. As action was not taken to improve the situation, she resigned on 10 December 2019.
She lodged tribunal proceedings for unfair dismissal, described as “a type of constructive dismissal because of failures of health and safety, and lack of support after an incident”. She also claimed she was making a protected disclosure (blowing the whistle).
At a case management hearing on 16 June at which she represented herself, Ms MacFarlane confirmed that she was not bringing a whistleblowing claim, just one for constructive dismissal. However, three days later, she asked to amend her claim to include complaints of being subject to a detriment (disadvantage) and unfair dismissal because of making protected disclosures.
Tribunal decision
The tribunal judge rejected Ms MacFarlane’s amendment application for two main reasons. Firstly, he held that it fundamentally changed how she had originally framed her claims - that she had resigned because of the Met’s failure to act on her concerns - instead of just clarifying or relabelling her original claim. Secondly, given how adamant she had been at the earlier case management hearing that she was not bringing a whistleblowing complaint, the amendment must, by definition, represent a new factual and legal basis to her claim.
As she had little prospect of persuading a tribunal that the failure to take steps to protect her health and safety was because she had made protected disclosures and because her detriment claims were now out of time, the judge concluded that it would not be fair to allow the application to proceed. Ms MacFarlane appealed, arguing (among other things) that the judge had put too much weight on her alleged “disavowal” of whistleblowing during the hearing on 16 June and too little weight on what she had stated in her original application form.
EAT decision
Dismissing the appeal, the EAT held that, when considering an amendment application, tribunals must examine the allegations in the amended claim and the extent to which they are substantially different from those in the existing claim. As the judge in this case had found that the whistleblowing claim was new in type because it changed the factual and legal basis of the previous claim, the EAT could see no error of law.
With regard to the weight the tribunal judge had attributed to Ms MacFarlane’s alleged disavowal of the whistleblowing claim at the hearing on 16 June as opposed to what she had put in the claim form, the EAT held that the judge’s comparison of those documents, coupled with what she said at the hearing, supported his conclusion that she was now asserting a new factual case. In other words, she was now claiming that the failure to protect her health and safety had arisen because she had made protected disclosures rather than the failure of the Met to take any action after her complaint.