Amendment to claim

Case 5: The facts

Ms Mouteng brought an unfair dismissal claim, but some months later she asked to amend her claim to include sex and race discrimination. Her original claim had not made any allegations of discrimination.

A judge said Mouteng could not amend her claim; she would have to issue new claims, and a decision would be made about whether to accept these out of time.

The ruling

The Employment Appeal Tribunal held that the discrimination claims should have been dealt with as an amendment rather than new claims. There are three reasons for requesting an amendment, it said: to correct clerical and typing errors; to add other labels for facts already stated; or to add a new claim. If the reason is to add a new claim, the fact that this claim is out of time is a factor that the tribunal will have to take into account when deciding whether to allow the amendment.

The test for allowing an amendment is the “relative injustice and hardship” involved. This is similar to the “just and equitable” test in allowing discrimination claims out of time, so the practical effect in Mou­teng’s case would be the same.