[2025] EWCA Civ 1466

It is not necessary for us to consider the intervening reasoning of the EAT in either of the appeals. All we would say is that we share the misgivings of Bourne J (in Wicked Vision) about the implications of the decision in Osipov.

The upshot is that we are bound to allow the employee’s appeal in Wicked Vision and to dismiss the appeal in Barton Turns, subject to the discrete point about amendment, which we consider next.

The other amendments in Barton Turns

Ground 3 of the employer’s appeal in Barton Turns raises a different and self-contained point. Paragraphs 9, 12 and 13 of the grounds of complaint attached to the claim form in that case identify three specific incidents on 4 June, 17 June and 20 June 2022 respectively. The claimant sought to amend those three paragraphs by adding an allegation that the event in question “amounted to a detriment”. Permission to make those amendments was granted by the ET and upheld by the EAT. When granting permission to appeal against that decision, Bean LJ said he was not so convinced that this ground was arguable “but there is a degree of overlap and I therefore grant permission on that ground also”.

On analysis, this is, in substance, if not in law, a ‘second appeal’ because both the ET and the EAT granted permission for these amendments. Both tribunals indicated that these amendments amounted to no more than a relabelling exercise and were to be permitted. The employer complains about that, saying that these amendments add a new cause of action out of time and should not therefore be permitted.

We were referred to a number of authorities including Selkent Bus Co Limited v Moore [1996] ICR 836; Vaughan v Modality Partnership [2021] ICR 535; and Abercrombie v Aga Rangemaster Limited [2014] ICR 209. To summarise the principles from those authorities which are relevant to this application:

Like Underhill LJ in Abercrombie, we are not persuaded that the additional sentence added to each of paragraphs 9, 12 and 13 in the present case amounted to a new cause of action. Reading the grounds of complaint as a whole we consider that a fair inference was always that these were intended to be allegations of detriment.

However, even if that were wrong, and this is in some way a new cause of action, we are in no doubt at all that both the ET and EAT were right to allow these amendments. They seem to us to be a classic example of relabelling. There is no change in the factual material relied on: the same material is simply now deployed in support of a clear allegation of detriment.

Although we were not referred to any of the older authorities on the point, Mr Jupp confirmed that these amendments arose out of the same or similar facts and matters as had originally been pleaded. That has always been the tried and trusted formulation when considering whether to allow late amendments, even if they introduce what might technically be regarded as a new cause of action: see CPR r.17.4, Brickfield Properties v Newton [1971] 1 WLR 862, and Mulalley & Co v Martlet Homes Ltd [2022] EWCA Civ 32. Here the amendments arise out of precisely the same facts and matters as had been originally pleaded. They were therefore rightly allowed by both tribunals.

We would therefore dismiss ground 3 of the Barton Turns appeal.