Mrs E MacFarlane v Commissioner of Police of the Metropolis
| Jurisdiction | UK Non-devolved |
| Judge | Michael Ford Deputy Judge |
| Subject Matter | Practice,Procedure - Amendment,Not landmark |
| Court | Employment Appeal Tribunal |
| Published date | 12 September 2023 |
Judgment approved by the court for handing down Macfarlane v Commissioner of Police
© EAT 2023 Page 1 [2023] EAT 111
Neutral Citation Number: [2023] EAT 111
Case Nos: EA-2020-000978-NLD
EMPLOYMENT APPEAL TRIBUNAL
Rolls Building
Fetter Lane, London, EC4A 1NL
Date: 12 September 2023
Before :
MICHAEL FORD KC, DEPUTY JUDGE OF THE HIGH COURT
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Between :
MRS E MACFARLANE Appellant
- and –
COMMISSIONER OF POLICE OF THE METROPOLIS Respondent
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Mr Gorasia (instructed via Direct Access) for the Appellant
Mr Martin (instructed by Directorate of Legal Services, Metropolitan Police Services) for the Respondent
Hearing date 20 July 2023
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JUDGMENT
Judgment approved by the court for handing down Macfarlane v Commissioner of Police
© EAT 2023 Page 2 [2023] EAT 111
SUMMARY
PRACTICE AND PROCEDURE - AMENDMENT
The claimant brought a claim of constructive unfair dismissal against the respondent. At a case
management hearing she clarified that she was not bringing a whistleblowing claim. Shortly
afterwards she sought to amend her claim to bring complaints of being subject to a detriment and
unfair dismissal because of making protected disclosures, contrary to section 47B and section 103A
of the Employment Rights Act 1996. In refusing her amendment application, the employment judge
placed some weight on what the claimant had said at the earlier hearing and decided that she was
bringing a new type of legal claim, raising new factual allegations. The employment judge also
decided that the balance of hardship was in favour of the respondent because he considered it was
unlikely the claimant would succeed in her claims.
The appeal was dismissed. First, in considering the nature of an amendment or the applicability of
time limits for the purpose of an amendment application, a tribunal should focus on the substance of
the amendment and whether it raises new legal or factual allegations. Consequently, there is no legal
rule that a claim of automatically unfair dismissal under section 103A is the same cause of action or
same type of legal claim as an existing complaint of unfair dismissal. The decision of the EAT in
Pruzhanskaya v International Trade and Exhibitors, UKEAT/0046/18/LA (17 July 2018), holding
there was such a legal rule, was inconsistent with the overarching principle based on justice which
governs amendment applications, with the judgment of the EAT in Selkent Bus Co Ltd v Moore
[1996] ICR 836 and with Court of Appeal judgments, including Abercrombie v Aga Rangemaster
[2014] ICR 209. The approach in Arian v The Spitalfields Practice [2022] EAT 67 was correct and
in accordance with the authorities.
Second, in deciding that the amendments were raising new complaints in substance, the EJ was
entitled to place some weight on the claimant’s clarification of her claim at the earlier case
management hearing. A claim form does not sit in a vacuum and its author is often in the best place
to explain what the claim is meant to allege factually, even if its proper legal classification may fall
more to the employment judge. Third, the EJ was entitled to have regard to the merits of the claim in
assessing the balance of hardship and his approach to this factor did not display any error of law.
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