Discretion to allow new claim by amendment: merits normally irrelevant (News, 27 July 2012)

Article summary

On an application by a claimant to amend his ET1 claim form so as to introduce a new head of claim based on new facts, a tribunal should consider all the circumstances and balance the injustice and hardship of allowing the amendment against the injustice and hardship of refusing it. In conducting that balancing exercise, if the tribunal is in a position to be sure that the proposed amendment asserts an utterly hopeless case, it is permissible to take the merits of that proposed new claim into account as a reason for not allowing the amendment, since to allow it in such circumstances would be pointless. However, in all other cases, (a) it should be assumed that the new claim is arguable, and hence (b) the apparent merits of the claim are (i) irrelevant to the consideration of whether or not the amendment should be allowed and so (ii) should not be taken into account. This is so...