CA-2025-000379 - [2025] EWCA Civ 1357

Although, as I have said, Mr Baker did not seek to challenge Judge Crosfill’s exercise of his discretion (otherwise than by the point of principle considered above) I should say that I cannot see anything wrong with the assessment that he made: I note indeed that in fact it has much in common with Swift J’s exercise of the discretion that he believed he enjoyed in determining the application before him (see para. 69 above). The exercise is specific to the facts of the present case and cannot be taken as an indication of the likely outcome of other applications in other circumstances. Both judges understandably put weight on the venial nature of the Claimant’s failure, given the very tight timetable to which she had to work, and the fact that the detriment claim was intimately connected with the unfair dismissal claim.

Although Mr Baker did not seek to deploy it in this context, it may be that his submission that the facts of the present case could be distinguished from those of Science Warehouse and Drake (see para. 89 above) really belongs at this stage of the argument. But if so I do not believe that it has any force. Although it is true that in those cases the early conciliation procedure had been invoked as regards the original complaint, that is not of central importance. The reason why in our case the procedure was not invoked in relation to the unfair dismissal claim is that it did not have to be.

I should add that there is nothing outlandish in the proposition that a jurisdictional bar may not apply to claims added to existing proceedings by amendment. It is well-recognised that permission may be granted to add a claim or join another respondent in ET proceedings, notwithstanding that the claim would have been out of time (so that the tribunal had no jurisdiction – see Radakowits, cited at para. 52 above) if presented in fresh proceedings. At para. 50 of my judgment in Abercrombie I said:

“Mummery J says in his guidance in Selkent that the fact that a fresh claim would have been out of time (as will generally be the case, given the short time limits applicable in employment tribunal proceedings) is a relevant factor in considering the exercise of the discretion whether to amend. That is no doubt right in principle. But its relevance depends on the circumstances. Where the new claim is wholly different from the claim originally pleaded the claimant should not, absent perhaps some very special circumstances, be permitted to circumvent the statutory time-limits by introducing it by way of amendment. But where it is closely connected with the claim originally pleaded … justice does not require the same approach: NB that in High Court proceedings amendments to introduce ‘new claims’ out of time are permissible where ‘the new cause of action arises out of the same facts or substantially the same facts as are already in issue’ (Limitation Act 1980, section 35 (5)).”

That was in relation to limitation. In fact the outcome in Abercrombie also involved the claimants being entitled to amend by substituting a claim to which the 2002 Act did not apply for one which fell to be dismissed because of the claimants’ failure to comply with its requirements. That is not binding authority as regards the present case, because the issues were not the same; but it may nevertheless be of interest as demonstrating that there is no absolute bar to jurisdictional problems being circumvented by amendment.

I would for those reasons uphold the order of the ET granting the Claimant permission to amend the claim form in the manner identified.