Why would I amend my ET1 form?
After submitting your ET1 form, you may realise it is missing something or requires modification. For example, you may:
- have missed crucial details from your claim;
- want to bring an additional claim (such as a whistleblowing claim); or
- want to change the name(s) of the party/parties against whom you are claiming.
You can apply to the Employment Tribunal (“ET”) to amend your claim. The ET will make an assessment on whether to accept the application, based on several factors (see below). You can find an amendment template here.
How do I make an application?
This can be made in writing or orally at a hearing. The ET is much less likely to accept an application to amend if it does not have a written version of the draft amendment in front of it. It is always better to have a draft amendment prepared in writing, even if the application to amend is made orally.
The pleadings (i.e. the document[s] setting out your case) must be clear and accurate. You must use the same level of detail as provided in the original claim.
You can make an application to amend at any stage of proceedings, but the later you make it (and the closer to any final hearing date), the less likely a judge is to allow the amendments you seek. We therefore strongly recommend you make an application to amend as soon as you realise that one is necessary.
The ET will decide whether to allow or refuse the proposed amendments by considering all the circumstances and particularly the ‘injustice or hardship’ either decision may cause to the parties to the claim. For instance, if you make an application very close to the final hearing date and/or after witness evidence has already been exchanged, a judge may refuse the amendments on account of the injustice or hardship such late changes may cause to the other party (who would have little time to deal with your amendments and may have to produce additional witness statements in response to new information).
How to be successful?
Why your application to amend is in accordance with the ‘overriding objective’.
In other words, how does your application enable the ET to deal with the case fairly and justly (this is the ‘overriding objective’ of the ET Rules)? The tribunal will consider all the circumstances of the case, in particular where there is ‘any injustice or hardship which may be caused to any of the parties… if the proposed amendment were allowed, or as the case may be, refused’.
You will need to spell out as convincingly as possible why:
(i) it would be unfair/unjust not to let you amend the claim
(ii) why it is not problematic for your employer/ex-employer to have the claim amended (e.g. it is only a new label given to facts that were already in the ET1 and that they are already aware of, they have lots of time to prepare a response, etc.)
Confirm the nature of the amendment.
Explain what type of amendment you are making, e.g. a minor typographical error, a request to add information or an application to include a new claim. The ET will usually allow minor amendments without further investigation. If you can show the ET that the amendment is not a new claim, but is merely adding a new legal ‘label’ to existing facts, the application is more likely to succeed (see the leading case of Selkent v Moore).
If you are bringing a new claim, set out whether there are any time limit issues.
If the claim is in time (i.e. if at the date of the application to amend, you are still within the statutory time limit for the type of claim that the amendment seeks to bring), this will make it much easier for the claim to be accepted. If the claim is out of time, the application to include the new claim will probably be dealt with at a preliminary hearing. You usually need a very good reason to justify why the judge should accept an out of time claim, for instance new information has been discovered or a new detriment has taken place (a whistleblowing claim needs to be brought within 3 months of the last detriment complained of, unless the Claimant can show that it was ‘not reasonably practicable’ to bring it within that time).
The amendment that includes a new claim should be ‘within the realms’ of (in other words related to) your existing claim. If it is a totally new claim, there is a much higher risk that the judge will refuse the amendment and that you will have to issue a new ET1. For instance, if you only brought a claim of discrimination without any reference to the public interest or the fact that others were affected but then realised that you could have brought a whistleblowing claim, it is likely that this will be seen as a totally new claim. On the other hand, if you had already mentioned in your ET1 that you had raised these issues, and it was obvious from the facts that you described that there was a strong public interest in the concerns, the judge may take the view that the amendment is a ‘relabelling’ of an existing claim and allow the amendment.
Explain the reason why you have not made an application previously (e.g. new information has come to light).
You will need to explain why the subject matter of the amendment was not included in your original claim, particularly if the application to amend is made some time after the events in question.
In the case Kuznetsov v Royal Bank of Scotland [2017] EWCA Civ 43, the Claimant delayed nearly three years before amending their claim to include whistleblowing claims. The Employment Judge said it would need to consider why the application had not been made earlier and was being made now. For example, the discovery of new facts or information. The Claimant pointed to documentation provided by the Respondent pursuant to a subject access request. The judge did not grant the amendment, for the following reason:
“There was no new information which would have made him realise he might have a whistleblowing claim of which he was not aware before. To the extent that he had a genuine concern that his dismissal (or selection for redundancy) related to his earlier raising of complaints or grievances (whether regarding bonus or relocation) he had all the information he needed to express that concern in his ET1 and, thus, make a protected disclosure claim. He did not.”
Do I need to undergo fresh early conciliation?
The legislation is not clear on this point; however, the ET have confirmed it is not necessary to undergo fresh early conciliation when adding a new claim or adding a new respondent.
What if my application to amend is rejected?
It is pointless and counter-productive to make a further identical application to amend. ETs want their decisions to have some finality and allow the parties to move on. They will consider that you are wasting the ET’s time if you ask for something that has already been refused and might sanction you for it.
However, if you believe that the ET has made a serious error in refusing your application, you can apply for reconsideration – but you must identify either a serious problem with the way the decision has been made or some significant change of circumstances. You need to write to the ET within 14 days of the order.
If you believe the ET has made an error of law by refusing you permission to appeal, you can appeal this decision to the EAT within 42 days of the date of the order. [A webpage dedicated to appeals is on its way.]
You can also try to issue a totally new claim, which you might be able to join to your original claim at a later point (although this may be difficult if the new claim is out of time).