Merits of complaint may be relevant when deciding whether to extend time or allow an amendment (Kumari v Greater Manchester Mental Health NHS Trust Foundation)

The potential merits of a proposed complaint, which is not plainly so weak that it would fall to be struck out, are not necessarily an irrelevant consideration when deciding whether it is just and equitable to extend time, or whether to grant an application to amend. However, if the tribunal weighs in the balance against the claimant its assessment of the merits formed at a preliminary hearing, that assessment must have been properly reached by reference to identifiable factors that are apparent at the preliminary hearing, and taking proper account, particularly where the claim is one of discrimination, of the fact that the tribunal does not have all the evidence before it, and is not conducting the trial, according to the EAT.

Kumari v Greater Manchester Mental Health NHS Trust Foundation [2022] EAT 132

What are the practical implications of this case?

At first blush this judgment does not necessarily say anything new as there are other authorities which allude to the fact that an employment tribunal may look at the merits of a proposed claim when considering whether:

• to grant a ‘just and equitable’ extension of time for a discrimination claim
• to permit a new complaint to be added by way of amendment.

However, as the case law discussion in this judgment reflects, there is quite a variation in exactly what existing authorities say, e.g. whether merits are only of relevance where a claim is hopeless, and some of the case law pre-dates the more detailed rules and safeguards that are now in place in relation to striking out claims that have no reasonable prospect of success. This judgment provides some helpful and practical clarification as to the overall position. In essence, it says that in relation to preliminary hearings to determine whether to grant a ‘just and equitable’ extension of time and to whether or not to allow an application to amend a claim:

• it is permissible for an employment tribunal, in an appropriate case, to take account of its assessment of the merits at large, provided that it does so with appropriate care, and that it identifies sound particular reasons or features that properly support its assessment, based on the information and material that is before it
• it must always keep in mind that it does not have all the evidence, particularly where the claim is of discrimination
• the points relied upon by the tribunal should also be reasonably identifiable and apparent from the available material, as it cannot carry out a mini-trial, or become drawn in to a complex analysis which it is not equipped to perform
• the tribunal needs to consider the matter with care, identify if there are readily apparent features that point to potential weakness or obstacles, and consider whether it can safely regard them as having some bearing on the merits
• if the tribunal is not in a position to do that, then it should not count an assessment of the merits as weighing against the claimant
• but if it is, and even though it may not be a position to say there is no reasonable prospect of success, it may put its assessment of the merits in the scales.

The EAT also noted that there is no specific obligation on the employment tribunal to warn a litigant in person in every case (when considering an extension of time or amendment) that some assessment of the merits might be made and that the key issue is whether or not the party was given a fair opportunity to put their case at the hearing itself, before the tribunal came to its decision.

Court details

• Court: Employment Appeal Tribunal
• Members: His Honour Judge Auerbach, Mrs N Swift, Mrs E Williams
• Date of judgment: 26 April 2022, published 31 August 2022

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