Merits can be relevant to applications to extend time or to amend the claim

7 October 2022

In Kumari v Greater Manchester Mental Health NHS Foundation [2022] EAT 132, the EAT considered an appeal against the Employment Tribunal’s refusal to extend time or allow an amendment.

The Claimant had brought claims of direct race discrimination and harassment that were out of time and sought to add a further discrimination claim that would have been out of time if allowed. The Tribunal refused both  applications.

The Claimant argued on appeal that the Employment Judge was wrong, as a matter of law, to take into account its view that the merits of the complaints appeared weak. She argued that the Tribunal could only take account of the merits if it concluded there was no reasonable prospect of success, and that to do otherwise circumvented the strike out rule and its associated safeguards.

The EAT rejected that argument and dismissed the appeal. The Tribunal had conducted an analysis of a series of authorities: Lupetti [1984] ICR 348, Olayemi UKEAT/0610/10, Woodhouse UKEAT/132/12, Gillet UKEAT/0051/17 and Herry UKEAT/0170/17.  The EAT concluded that no prior authority required it to hold, as a matter of law, that it is necessarily wrong to take account of the merits.

However, the EAT highlighted at §88, that “the employment tribunal should proceed with care and caution and, if it is relying on its general view of the strength of a proposed complaint as a point against granting the amendment, then it must identify a reasoned basis for doing so on which it is properly entitled to rely, bearing in mind that it does not have before it the full evidence that the tribunal would have at a full hearing, and the need to avoid becoming drawn in to conducting a mini-trial”. However, if the Tribunal reaches that view properly, the amount of weight to be put on that factor are for the Tribunal to decide. The EAT can only intervene on grounds of perversity.

The EAT concluded that the Tribunal in this case had properly considered such matters and was entitled to take account of the merits in reaching its decision to refuse the amendment and the extension of time.

Whilst this authority gives some support for Tribunals wishing to consider the merits of the case when deciding whether to permit an amendment or extend time, it may have only a limited impact as Tribunals will remain cautious about determining time points prior to hearing all the evidence.


Claire Palmer

Call 2003

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