1. An Employment Tribunal has power to grant leave to amend a claim at a hearing (see: Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 **rules 10(2)(q) and 27(7)). Thus, if a claimant's representative seeks permission to alter, add to or subtract from what is written in the claimant's form ET1, the Tribunal may, in its discretion, allow the representative to do so. The Tribunal does not have power itself to amend a claim.

1. In the case of Ladbrokes Racing Ltd v Traynor UKEATS/0067/06MT, similar circumstances arose in respect that it became apparent to an Employment Tribunal in the course of a hearing that the claimant was seeking to pursue a line, in evidence, that had not been foreshadowed in the form ET1 and the Tribunal allowed the questioning to continue notwithstanding it being objected to. The issues raised on appeal gave rise to consideration of the procedure that an Employment Tribunal ought to follow when, at a hearing, it appears that a party is seeking to present a case that differs from that of which notice has been given in the form ET1:

"30 We are persuaded that this appeal is well founded. The Tribunal seems, unfortunately, to have jumped too far too fast. What, in our view, it required to recognise before making its decision was as follows:

31 Firstly, the Claimant had not, it seems, actually made any application to amend the ET1. The decision recorded in the written reasons is a decision to allow a line of cross examination which was manifestly not foreshadowed in the Claimant's statement of his case in his ET1. The line which the Claimant sought to pursue was plainly a separate issue in law, as discussed, and involved different facts from any of which notice had been given in the ET1, albeit that it would not take the case outwith the 'unfair dismissal' umbrella. That being so, the allowance of the line of cross examination would have been extremely difficult to justify in the absence of amendment.

32 Secondly, the Tribunal thus did need to turn its mind to the matter of amendment but the question is how? We see no difficulty in a Tribunal in such circumstances enquiring of the Claimant or his representative whether he seeks to amend the ET1 in the light of the line of evidence which he appears to seek to explore.

33 Thirdly, if the answer to that enquiry is that the Claimant does seek to amend, then the Tribunal requires to enquire as to the precise terms of the amendment proposed. If it does not do that, then it cannot begin to consider the principles that apply when considering an application to amend, as discussed above. Further, unless it does so, the fair notice obligations referred to in the quotation from Ali, above, will not be complied with.

34 Fourthly, it may be advisable, if not necessary, to allow the Claimant a short adjournment to formulate the wording of the proposed amendment.

35 Fifthly, it is only once the wording of the proposed amendment is known that the Respondent can be expected to be able to respond to it.

36 Sixthly, once the wording of the proposed amendment is known, the Tribunal requires to allow both parties to address it in respect of the application to amend before considering its response.

37 Seventhly, the Tribunal's response requires to be that of all members and requires to take account of the submissions made and the principles to which we have referred. The Chairman and members may require to retire to consider their decision.

38 Eighthly, the Tribunal requires to give reasons for its decision on an application to amend. Those reasons can be shortly stated and, as we have indicated, we would expect them to be given orally. They must, however, be indicative of the Tribunal having borne in mind all relevant considerations and excluded the irrelevant from its considerations."

1. The reference to Ali is a reference to a passage from the judgment of Lord Justice Waller in Ali v Office of National Statistics [2005] IRLR 201, where the importance of giving fair notice to an employer in the form ET1 of the case that the claimant alleges against him is discussed. He stated:

"39…….. …a general claim cries out for particulars to which the employer is entitled so that he knows the claim he has to meet. An originating application which appears to contain full particulars would be deceptive if an employer cannot rely on what it states."

1. The point is made under reference to circumstances where the claim in the ET1 was lacking in specification but it applies with even more force where a claimant seeks to advance a claim that has not been foreshadowed in the ET1 at all. The new claim cannot go forward unless the ET1 is amended and we consider that, in circumstances such as in Ladbrokes **and in the present case, proper exercise by the Employment Tribunal of its discretion to grant leave to amend requires the procedure applied to accord with the spirit of the above guidance.

1. A further matter arises in the present case. The amendment issue arose more than seven months after the Claimant's dismissal. The time limit for the raising of a claim for unfair dismissal had passed. The fact that a claimant seeks, by amendment, to introduce a claim which would have been time barred if presented as a fresh claim is always a highly significant factor that needs to be taken into account when considering the application for leave to amend. As we said at paragraph 20, in Ladbrokes:

"20. When considering an application for leave to amend a claim, an Employment Tribunal requires to balance the injustice and hardship of allowing the amendment against the injustice and hardship of refusing it. That involves it considering at least the nature and terms of the amendment proposed, the applicability of any time limits and the timing and manner of the application. The latter will involve it considering the reason why the application is made at the stage that it is made and why it was not made earlier. It also requires to consider whether, if the amendment is allowed, delay will ensue and whether there are likely to be additional costs whether because of the delay or because of the extent to which the hearing will be lengthened if the new issue is allowed to be raised, particularly if they are unlikely to be recovered by the party who incurs them. Delay may, of course, in an individual case have put a respondent in a position where evidence relevant to the new issue is no longer available or is of a lesser quality than it would have been earlier. These principles are discussed in the well known case of Selkent Bus Co Ltd t/a Stagecoach Selkent v Moore [1996] IRLR 661."

1. We would also refer to Mummery J, as he then was, in Selkent at paragraph 26:

"…an application for amendment made close to a hearing date usually calls for an explanation as to why it is being made then, and was not made earlier, particularly when the new facts alleged must have been within the knowledge of the applicant at the time he was dismissed and at the time when he presented his originating application."

1. Finally, given the circumstances of this case, whilst it hardly needs to be stated, it is not for the Employment Tribunal or Employment Judge to act as advocate for one party. It is, accordingly, important to avoid acting in a manner that could be construed as their doing so.

1. For the Respondent, Mr McCorkell drew attention to the chronology of events and submitted that the Tribunal had erred in law. They had purported to exercise a power that they did not have, namely, the power to write a party's amendment for them and amend the claim in those terms. They had not followed the Ladbrokes guidance in circumstances where it was plain that they ought to have done so. The Respondent had not had notice of the terms of the amendment that the Tribunal effected and had no opportunity to make submissions in respect of it; at the stage that they were allowed to make submissions they knew of the wording stated by the Claimant's mother but did not know of the wording of the ultimate amendment produced by the Tribunal. Further, the Tribunal failed to have regard to the time bar that would have applied if the Claimant had, at that stage, sought to present a fresh claim of unfair dismissal. Nor was their judgment Meek compliant. In particular, it was impossible to find how or where they considered they had a discretion to write the Claimant's amendment for her.

1. Mr McCorkell also referred to the case of Lewisham & Guys Mental Health NHS Trust v Andrews [1999] IRLR 407 as an example of a Tribunal having erred in purporting to exercise a discretion that it did not have. There was no appearance for the Claimant.

1. We are satisfied that we should uphold the appeal.

1. In this case, a new account of the circumstances of the Claimant's dismissal appeared very late in the day, at the final hearing. That lateness called for an explanation of how and why it had not formed part of the claim prior thereto. It is no answer that the Claimant had said something to similar effect in her application for a witness order or that her prior grievance might be construed as alluding to it in some way. The Respondent would not have seen the application for a witness order and even if such a construction could be given to the prior grievance, so far as her complaint to the Employment Tribunal was concerned, up until that point, it had been confined to being a common law claim for wrongful dismissal in respect of the breaches of contract referred to in the ET1 (see the quotation from the ET1 above). It is plain that the Tribunal regarded the position as being that there was potential for the introduction of a wholly new claim, namely a statutory claim of automatically unfair dismissal for having made a protected disclosure, that is, a wholly new and different claim with significant implications for the Respondent if introduced. The Respondent had had no notice whatsoever of such a claim at any earlier stage and the late arrival on the scene of the new factual account called for an explanation of which there is no sign of the Tribunal having sought, despite the Respondent's representative having objected on grounds of the lateness of the application.

1. Turning then to the procedure adopted, whilst it was appropriate for the Tribunal to draw the attention of the Claimant's mother to the fact that her opening statement appeared to raise a new matter, that it could not form part of her case without amendment, to take from her statement of the complaint that she sought to add, and to invite the Respondent to respond to her application they fell into error in the procedure adopted thereafter. They failed to give any consideration to the question of why it was that the new matter had not been raised earlier notwithstanding that issue being raised by the Respondent's representative and notwithstanding it being a highly relevant factor, as discussed above. They then relied on what the Claimant had stated in her application for witness orders but that application was not intimated to the Respondent; it had no prior knowledge of what she had said to the Tribunal in that respect. In any event, contrary to what the Tribunal suggest, it did not "mirror" what was set out in the proposed amendment stated by the Claimant's mother. They relied on what the Claimant had said in her grievance but the Tribunal's reference to it does not amount to any claim that the Claimant's dismissal was caused to any extent by her having made a protected disclosure. Further, the fact that a claimant has made an allegation in a prior grievance does not amount to fair notice that they propose to rely on that matter in their subsequent Tribunal claim; the test for that is what they have averred in the form ET1. Thus, the Tribunal failed to take account of a relevant factor and relied on two irrelevant factors. We would add that, as discussed in Cavendish, the fact that an employee has made an allegation does not amount to disclosure of "information" as is required before any relevant case of protected disclosure can be made out.

1. Thereafter, rather than consider whether or not to allow an amendment in the terms proposed by the Claimant's mother, they proceeded to draft an amendment in different terms, did not afford the Respondent the opportunity to make submissions on the wording that they were proposing and purported to rely on "its discretion" to do so. They do not state the basis for that discretion and we are of the clear view that none exists. Where amendments of claims are concerned, the discretion conferred on an Employment Tribunal is to grant leave to a claimant to allow the claimant to amend the form ET1 in the terms that he or she proposes, if appropriate; it is not a discretion for the Employment Tribunal to give themselves leave to amend the ET1 in whatever terms they think are best. Nor does an Employment Tribunal have a discretion so to amend without allowing the respondent the opportunity to make representations in response to the wording which the amendment will contain if leave is granted. For an Employment Tribunal to act in such a manner runs the risk of them appearing to have stepped outwith the judicial role and acted as advocate for one party. We conclude that such a perception was created by the Tribunal's actions in respect of the amendment.

1. In all these circumstances, we are satisfied that the Tribunal fell into error. There was no proper basis on which they were entitled to pronounce the order of 5 August 2009 amending the Claimant's claim and it follows from that that they should have granted the review that was sought and revoked the order.

1. There will require to be a remit and it will be a remit to a freshly constituted Employment Tribunal. In the circumstances, particularly the perception to which we have just referred, it would not be appropriate to remit the case to the same Employment Tribunal.

1. We will pronounce an order upholding the appeal, revoking the order of the Employment Tribunal dated 5 August 2009 amending the Claimant's claim and thereafter remitting the complaint to a freshly constituted Employment Tribunal to proceed as accords.