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 ERA1996. In refusing her amendment application, the EJ 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 EJ 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 Claimant appealed.

The EAT dismissed the appeal. First, in considering the nature of an amendment or the applicability of time limits for the purpose of an amendment application, an ET 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. 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. 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.