The Claimant applied to amend her claim to include claims of detriment arising from the making of protective disclosures, a claim of automatic unfair dismissal, arising from the same protective disclosures, and a claim of indirect associative sex discrimination. This followed her previous solicitors presenting a claim form to the ET which did not include these further claims. The ET refused permission to amend her claim saying that an informed decision had been taken not to pursue such claims when the claim form was originally presented. The Claimant appealed.

The EAT dismissed the appeal. The EJ was entitled to refuse an application to amend the particulars of claim, including to add claims of whistleblowing detriment and dismissal, in circumstances where the Claimant’s representatives had presented a claim form which made no reference to such claims, but another version of the claim form had been created, which referred to whistleblowing detriment and unfair dismissal, but which had not been presented. The ET was entitled to conclude that an informed decision had been taken when the claim form was presented, not to pursue such claims. The EJ reached his conclusion after the Claimant’s representative had made submissions to him. The EJ was not obliged to carry out an inquisitorial role and to ask the Claimant to consider giving evidence. It was a matter for the Claimant, on legal advice from her representative at that hearing, to decide whether to waive privilege as to the circumstances in which her previous solicitors presented her claim form and adduce evidence.