After incidents in the workplace, the Claimant went off sick and his employment was eventually terminated. He brought claims of unpaid wages and holiday pay and unfair dismissal. Two months later, he sought to amend his application to introduce complaints of detriment and automatically unfair dismissal on the ground of having made protected disclosures (sections 47B and 103A ERA) and a claim of disability discrimination. The proposed amendment to introduce the section 47B claim lacked specification inter alia as to the what detriments were alleged, and when they were said to have occurred. An undertaking to re-draft the proposed amendment within 14 days was never complied with. The case was then sisted until November 2021. After the sist was recalled, the amendment was allowed in January 2022, and the case then proceeded to a full hearing in November and December 2022. Having heard evidence, the ET found that the Claimant had made protected disclosures as a result of which he had been subjected to four detriments. The ET held that it did not have jurisdiction over the section 47B claim as it had been brought outwith the primary time limit, and no basis had been shown to extend that time limit. The ET also held that Claimant had been fairly dismissed. The Claimant appealed.

The EAT dismissed the appeal. The Claimant had argued that consideration of the amendment application implied that the ET had applied his mind to the time bar issue but the EAT disagreed, saying the ET's conclusion that the amendment was simply a re-labelling exercise suggested that the EJ did not realise that there might be a time bar issue that required to be addressed. An ET considering an application to amend should usually examine the issue of time bar as one of the Selkent factors. Where the issue of time bar is unclear, however, it is competent for it to be reserved. Where, as here, an issue of time bar has obviously been overlooked at the stage of consideration of the amendment application, it remains a live jurisdictional point which any subsequent ET considering the evidence has an ongoing duty to address.