It has long been accepted that any application to amend an ET1 should not be allowed where it effectively adds a new cause of action (as opposed to re-labelling existing heads of claim).
The EAT case of Queensway Surgery v Dr Jayatilaka addresses this point. At Tribunal the Claimant presented a claim of unfair dismissal (11 September 2009). On 12 January 2010 she applied to amend her ET1 to add claims of disability discrimination and harassment. The Judge allowed the amendments.
The majority of the amendments were upheld on appeal. One of the key considerations was whether the factual basis for the complaints had already been set out in the ET1.
The morale of this tale is for us to remember that this is, at the end of the day, a matter for the Judge’s discretion and this case will be particularly helpful for any practioner who is instructed after the ET1 has already been presented and feels that the claims have not been adequately set out – take heart and read this case in detail!!