Background
Pauline Peace, a teaching assistant employed by the London Borough of Ealing since 2009 or 2010, resigned on 15 January 2024 citing constructive dismissal. Her claim form (ET1), filed in April 2024, outlined complaints of unfair dismissal, race discrimination, disability discrimination, unlawful deduction of wages, and other claims. The narrative described a prolonged suspension, an investigation she characterised as based on falsified evidence, failure to accommodate disability, withholding of pay from July 2023, and a breakdown of the employment relationship. In October 2024, the Employment Tribunal ordered Ms Peace to provide further information; she filed a document headed “Particulars of Claim” which contained substantial new material not raised in the ET1.
At a Preliminary Hearing for Case Management in April 2025, Tribunal Judge Plowright worked through a draft list of issues with the parties. When the respondents’ counsel flagged that some matters in the “Particulars of Claim” had not appeared in the original ET1, the Employment Judge indicated that there was nothing before her to suggest the respondents would be prejudiced, given that the particulars had been provided in October 2024 and there was time to prepare before the final hearing. The Employment Judge concluded that “the original claim form and the Particulars of Claim therefore cover all the matters pleaded by the claimant” and finalised a list of issues on that basis. The respondents appealed, arguing that the Employment Judge had in reality allowed an amendment to the claim without applying the correct legal test.
The Court’s Holding
HHJ Tayler allowed the appeal. The Employment Appeal Tribunal held that what Judge Plowright had done amounted in substance to allowing an amendment — incorporating new complaints from the supplementary particulars into the case — without applying the established legal framework for amendment applications. The starting point is the pleadings: a claim form (ET1) defines the essential case, not further documents that are filed later. A “Particulars of Claim” document (which is not itself a pleading) cannot enlarge the scope of the claim without a formal amendment. A list of issues is a case management tool, not a pleading, and cannot extend the issues beyond what the pleadings permit.
The governing test for amendment applications is set out in Selkent Bus Co Ltd v Moore [1996] ICR 836: the tribunal must balance the injustice and hardship of allowing the amendment against the injustice and hardship of refusing it, taking into account all circumstances including the nature of the amendment, whether new complaints are out of time, and the timing and manner of the application. HHJ Tayler held that the Employment Judge’s analysis was “wholly inadequate”: she had focused only on whether the respondents had advance notice (and concluded they would not be prejudiced because of that notice), without identifying which allegations in the supplementary particulars were new, whether any were out of time, what explanation existed for their late introduction, or how the balance of injustice and hardship fell. That was an error of law. The matter was remitted to a different Employment Judge for fresh consideration, with the EAT observing that the claimant should be prepared to focus on her core complaints and abandon allegations that are illogical or unworkable — particularly certain indirect discrimination and discrimination arising in consequence of disability claims.
Key Takeaways
- The ET1 (claim form) and ET3 (response) are the pleadings in Employment Tribunal proceedings; a supplementary “Particulars of Claim” document ordered to clarify the claim does not itself constitute a pleading and cannot expand the complaints beyond what the ET1 pleads — as established in Chandhok v Tirkey [2015] ICR 527 and affirmed in Moustache v Chelsea and Westminster Hospital NHS Foundation Trust [2025] EWCA Civ 185.
- A list of issues is a case management tool, not a pleading; it can summarise and clarify existing pleadings but cannot add new complaints — any addition beyond what the pleadings contain constitutes an amendment requiring proper application of the Selkent balancing test.
- The Selkent amendment test requires the Employment Tribunal to: identify whether the allegation is in the original pleading; if not, assess the nature of the amendment and whether it is out of time; consider why the application was not made earlier; and, fundamentally, balance the injustice and hardship to each party of allowing or refusing the amendment. Advance notice alone is insufficient to justify allowing an amendment.
- Where an Employment Judge errs in law by failing to properly apply the amendment test, the appeal will generally be allowed and the matter remitted — absent agreement of both parties or a case where only one outcome is possible, the EAT will not substitute its own decision on the amendment application.
Why It Matters
Ealing v Peace is a timely reminder of a recurring problem in Employment Tribunal case management: the temptation, particularly in litigant-in-person cases, to allow supplementary documents to do the work of proper amendments without going through the discipline of the Selkent test. HHJ Tayler’s judgment makes clear that even well-intentioned case management designed to ensure a full hearing of the claimant’s grievances crosses a legal line when it incorporates new material that was not in the original claim form, without the tribunal identifying what is new, whether it is time-barred, and how the balance of prejudice falls.
For respondents in Employment Tribunal proceedings, the case highlights the importance of clearly flagging, in writing and on the record, any contention that supplementary particulars or lists of issues go beyond the ET1. A failure to object may make it more difficult to challenge the scope of the claim later. For claimants’ advisers, the judgment is a prompt to ensure that the ET1 — the originating document — is drafted with sufficient particularity to capture all intended complaints from the outset. Where a litigant in person’s ET1 is deficient, the right route is a formal amendment application with proper reasons, not a supplementary document that is later assimilated into the case without scrutiny.