Employment Judge BurgeIn person for claimantMr D Green (instructed by Counsel) for respondentDate 21 July 2026
JUDGMENT
[1]The Claimant “presented” a complaint for the purposes of section 128 Employment Rights Act 1996 when he lodged his application to amend seeking to add a complaint of automatic unfair dismissal under section 103A ERA. Whether permission to amend should ultimately be granted remains to be determined. However, the absence of a determination on the amendment application does not prevent the complaint having been “presented” for the purposes of section 128. The Tribunal therefore has jurisdiction to entertain the application for interim relief.
REASONS
[1]The Claimant submitted a claim on 17 December 2025 for sex discrimination and detriment for having made protected disclosures. Following a letter from the Tribunal dated 2 April 2026 requesting details of the protected disclosures, the same day the Claimant provided the alleged protected disclosures:(i) I initially raised my concerns around colleague impropriety, in particular the fact that the entire learning team were failing to ensure due diligence around the delivery of Food Safety Act compliance assessments (particularly related to HACCPs), to my line manager Adele Goddard on the 30th June, both verbally and in writing via text message.(ii) I also made a report to the FSA's National Food Crime Unit (NFCU) on the 12th December 2026. [Tribunal note: presumably this was 2025][2]He also said “Most recently I have reiterated my concerns around my concerns to the company's head of Food Safety via email on the 30th March, copying in representatives of the company's HR team and the director of risk management.”[3]On 5 May 2026 the Claimant made an application to amend his claim to include “unfair dismissal due to the company's unwillingness to appropriately investigate or action my whistleblowing concerns around numerous breached, including discriminatory harassment and extreme risk to the public owing to a refusal to adhere to basic food safety laws and ensuring due diligence/process, particularly as it relates to the large scale, present and historical incorrect HACCP compliance assessments being carried out on site. The learning team intentionally harass and force out competent colleagues, as well as people of immigrant decent, so that they can continue to cut corners at an unfathomable rate. This also encapsulates fraud considering their representations made to their customer Marks & Spencer during audits. The number of end customers whose health and safety is potentially affected by these wide ranging institutional failures is potentially in the millions. Instead, the company have upheld a malicious grievance raised against me by the implicated parties, compounding the enormous amount of psychological damage and stress I have been placed under for months.”[4]The Claimant then made another application to amend his claim on 17 May 2026 saying that as the Respondent “intend[s] to officially dismiss [him] on 27th May”, he would “like to request interim relief”.[5]The Respondent wrote on 12 June 2026. It denied that the Claimant made the first disclosure and stated that it the Respondent knew nothing of the second alleged disclosure until the Claimant raised it on 2 April 2026. The Respondent did not object to the Claimant amending his claim to include unfair dismissal and stated that the Claimant had been dismissed by the Respondent effective 27 May 2026. The Respondent said it understood that the Claimant’s proposed unfair dismissal claim was that he was dismissed for making protected disclosures.[6]On 30 June 2026 Regional Judge Khalil wrote “The respondent has asserted it objects to the claimant's application for Interim Relief. It is unclear if this relates to the making/jurisdiction of the application itself or, the merits of the application.”[7]On 7 July 2026 the Respondent wrote “1. We act for the respondent and write in reply to the tribunal’s letter of 30 June 2026 and further to our email of yesterday, in relation to the claimant’s application for interim relief. 2. As noted in our letter of 22 May 2026, the respondent objects to the claimant’s application for interim relief. 3. In our submission, the employment tribunal lacks jurisdiction to consider that application because it was not made within the 7-day statutory time limit required by s128(2) Employment Rights Act 1996. 4. As provided by s128, applications for interim relief can only be made by employee’s who present (or have presented) a complaint of unfair dismissal before the end of the period of 7 days immediately following the effective date of termination. 5. In the claimant’s case this required him to present his application by 3 June 2026. 6. As matters stand, the claimant has not presented a complaint of unfair dismissal at all (far less within the 7-day period). 7. Whilst it is appreciated that on 5 May 2026, he applied to amend his claim to add an automatic unfair dismissal complaint, and that application is unopposed, it has yet to be allowed.[8]Per Judge Hand KC in Galilee v Commissioner of Police of the Metropolis UKEAT/207/16 (copy enclosed), at 109(a): Amendments to pleadings in the employment tribunal, which introduce new claims or causes of action take effect for the purposes of limitation at the time permission is given to amend and there is no doctrine of relation back in the procedure of the employment tribunal.[9]The effect of this decision is that if the claimant’s amendment application is allowed, the date it is allowed will be the date his unfair dismissal claim is presented to the employment tribunal for the purpose of determining the limitation period relating to his interim relief application.[10]That date will inevitably be after the 7-day time-limit has long expired and means the tribunal has no jurisdiction to consider the application.” 8. The Respondent also enclosed a first instance decision where a Judge decided that a claim of automatic unfair dismissal added by amendment, was to be “presented” at the time the amendment was granted, rather than at the time the application to amend was made and that the grant of the amendment therefore post-dated the application for interim relief. As it is necessary for the automatic unfair dismissal claim to be presented before or at the same time as the application for interim relief, not after it, the claimant’s claim for interim relief was therefore dismissed. As the Respondent rightly points out, I am not bound by this first instance decision. 9. On 10 July 2026 Regional Employment Judge Khalil listed an urgent public Preliminary Hearing to take place to determine whether or not the Tribunal has jurisdiction to hear and decide an Interim Relief application based on an application to amend the claim submitted on 17 May 2026. 10. A Preliminary Hearing in this case has been listed to take place on 15 November 2027 and a final merits hearing is listed to take place on 22 - 25 August 2028.[11]Section 128 Employment Rights Act 1996 provides the following in relation to interim relief: “(1) An employee who presents a claim to an employment tribunal that he has been unfairly dismissed and … that the reason (or if more than one, the principal reason) for the dismissal is one … specified in … section 103A … may apply to the tribunal for interim relief. (2) The tribunal shall not entertain an application for interim relief unless it is presented to the tribunal before the end of the period of seven days immediately following the effective date of termination (whether before, on or after that date). (3) The tribunal shall determine the application for interim relief as soon as practicable after receiving the application. (4) The tribunal shall give to the employer not later than seven days before the date of the hearing a copy of the application together with notice of the date, time and place of the hearing. (5) The tribunal shall not exercise any power it has of postponing the hearing of an application for interim relief except where it is satisfied that special circumstances exist which justify it in doing so”[12]Interim relief is to be granted where (s129(1)): “…on hearing an employee’s application for interim relief it appears to the tribunal that it is likely that on determining the complaint to which the application relates the tribunal will find that the reason (or if more than one the principal reason) for the dismissal is one of those specified in… section 103A.”[13]Under Rule 30 of the Tribunal Rules 2024 the tribunal can make case management orders, and Rule 41 provides that tribunals can regulate their own procedure. Rule 3 provides that the overriding objective requires the Tribunal to deal with cases fairly and justly and this includes ensuring that the parties are on an equal footing, dealing with cases in ways which are proportionate to the complexity and importance of the issues, and, avoiding unnecessary formality and seeking flexibility in the proceedings.[14]An employment tribunal claim can be amended at any time, but the claimant needs the tribunal’s permission. The Tribunal has a broad discretion to consider amendments under rules 30 and 31 of the Employment Tribunal Rules 2024. The tribunal has a discretion to allow applications to amend. In Selkent Bus Co Ltd v Moore [1996] ICR 836, Mummery J gave guidance as to the main factors that need to be considered when considering an application to amend. This guidance, which has itself been explained in subsequent case-law identifies the following key-factors:a. Nature of the proposed amendment;b. Timing and manner of the application to amend;c. Time limits and whether time should be extended pursuant to the applicable statutory test;d. The balance of hardship. In deciding whether to allow an amendment, the tribunal must take account of all the circumstances and balance the hardship and injustice of refusing the amendment against that of allowing it (Selkent Bus Co Ltd v Moore [1996] IRLR 661, EAT; Transport and General Workers Union v Safeway Stores LtdUKEAT/0092/07). In Vaughan v Modality Partnership 2021 ICR 535, EAT, the EAT gave detailed guidance on the correct procedure to adopt when considering applications to amend tribunal pleadings. It confirmed that the core test in considering applications to amend is the balance of injustice and hardship in allowing or refusing the application.[15]When a party is unrepresented, Tribunals should be live to the potential need to adopt a “more inquisitorial approach” in order to ascertain where the balance of hardship and injustice lies. (LQP v York City Council [2022] EAT 196). However, the Court of Appeal in Moustache v Chelsea and Westminster Hospital NHS Foundation Trust [2025] EWCA Civ 185 noted that the Employment Tribunal’s role is “arbitral not inquisitorial or investigative”.[16]Where an application is made to amend a claim within the primary limitation period of that act taking place, unless the Respondent can show some sort of prejudice, such as an imminent final hearing, it is highly likely that the amendment will be granted.[17]In Prakash v Wolverhampton City Council UKEAT/0140/06/MAA, the term "present" in s.111 did not have a technical meaning, at paragraph 60: “We see no reason why the term “present” should be given any technical meaning. In our opinion, a claim can be “presented” as well by amendment as by the issue of a separate originating application. If this were not so, in very many cases amendments adding new causes of action would require to be initiated by the presentation of a fresh originating application rather than by amendment. In our opinion, such is neither current practice nor in accordance with common sense nor the law as we understand it.”[18]A claim can therefore be “presented” as well by amendment as by the issue of a separate originating application.[19]The case of Galilee v Commissioner of Police of the Metropolis [2018] ICR 634, (HHJ Hand QC) contained a detailed examination of conflicting authorities relating to applications to amend and the whether the doctrine of “relation back” (whereby a new cause of action introduced by amendment took effect from the time the original proceedings were commenced) applied in the Employment Tribunal. HHJ Hand QC held that it did not. However, there did not appear to be consideration of when then causes of action introduced by amendment ought to take effect from, only that it should not be deemed to be when the claim was first presented (which would not make sense, for example, as in the current case, when the Claimant was not dismissed when he first put his claim in) and that “amendments to pleadings in the ET, which introduce new claims or causes of action take effect for the purposes of limitation at the time permission is given to amend…” (paragraph 109).[20]In practice the timing does not usually cause an issue. The tribunal has a wide remit to consider an array of factors when deciding an application to amend and the practical effects of allowing/refusing the application which is weighed up as the balance of injustice and hardship. Where a Claimant has made an application to amend within 3 months of the act taking place, regardless of when the decision to grant the amendment is taken, the Tribunal is likely to extend time in accordance with the statutory tests. That is usually because it would be open to the claimant to put in a second claim, which would be accepted as being in time. This is especially so where, as in the current case, the Respondent does not oppose the application. It does not matter whether the decision is taken by the Tribunal in six months or 18 months, it is seen to be a formality given it would be in the interests of justice. Mr Green points out that the CPR allows for amendment by consent (Rule 17.1) whereas the Employment Tribunal Rules do not.[21]Claimants are encouraged to amend their existing claims rather than submitting new claims. The Employment Tribunal has limited Judicial and administrative resources. There are many people waiting to have their claims heard and there is a backlog of cases waiting for scarce judicial and administrative resources. The parties are required to comply with the overriding objective and act proportionately (Rule 3). When a party submits multiple claims to the Tribunal it is more resource intensive for the parties and the Tribunal and can be an abuse of process.[22]Where the facts arise from those set out in an existing claim it can be an abuse of process to enter a second claim. Applying to amend an existing claim is the preferred method so that the parties and the Tribunal can effectively manage resources. In London Borough of Haringey v O'Brien EAT/0004/16 the EAT held that the Henderson v Henderson principle applied to all matters that had taken place prior to the hearing of the first ET claim (not just the lodgement of the claim) (per HHJ Eady at paragraph 60 and 61). The EAT said that if the Employment Tribunal was entitled to find that it was a Henderson abuse of process to pursues complaints in a second set of proceedings regarding matters occurring prior to the presentation of the first claim, the same reasoning would apply to events occurring thereafter and prior to the full merits hearing, or at least sufficiently prior to it to have allowed for an amendment to the claim. It is open to the Employment Tribunal to conclude that a second claim is an abuse of process under the rule in Henderson v Henderson because a claimant could and should have made an application to amend the first claim to include the second claim, even though an amendment application might have been refused (Andras Szucs v Greensquare Areaccord Ltd [2025] EAT 110).[23]Mr Green points out that the Henderson v Henderson rule is not mandatory, in some instances, when taking all relevant circumstances into account it will be an abuse of process, in others it will not be. However, whilst a second claim would not necessarily have been an abuse in the current case, the authorities recognise that parties are often expected to apply for amendment rather than commence fresh proceedings.[24]In my view it would not be in the interests of justice for a Claimant who has acted properly to amend an existing claim (rather than creating the administrative burden / potential Henderson v Henderson abuse of process of submitting a new claim form) within time to be penalised for the delay it takes for the Tribunal to list and convene a hearing to decide it. I take Judicial notice of the fact that applications to amend are almost never decided upon with the speed that would be needed. The only very rare exception I can think of would be where there happens to be a hearing listed within the short window between the effective date of termination and the application for interim relief, but this would be happenstance.[25]In this case the Respondent, correctly in the Tribunal’s view given the timing of the application to amend, does not oppose the amendment application to include the complaint of unfair dismissal for having made protected disclosures. If the Claimant had put in a new claim form, he would have been in time and this hearing would be unnecessary. However, it is in accordance with the overriding objective for the Claimant to seek to amend the existing claim rather than to bring a new claim which puts the Respondent and the Tribunal to unnecessary expense.[26]There is no power to extend the time limit for an application for interim relief, it must be presented within seven days of the effective date of termination. The effect of the Respondent’s submission is that an applicant for interim relief must nearly always put in a new claim for having been automatically unfairly dismissed or they have not “presented” a claim – they have only submitted an application to amend that may be allowed at a later date and it is only at the later date that the complaint is deemed to be “presented” (Galilee). This is despite the fact that when considering the application to amend the Judge considers when the application to amend was made and why it was made then (as well as other factors).[27]Presidential Guidance on applications for interim relief with effect from 22 June 2026 points out that “…a significant increase in applications for interim relief, largely in protected disclosure cases, and often indicating use of artificial intelligence (“AI”). In previous years, across Great Britain, the Employment Tribunals would receive perhaps 20 such applications a year. Now most offices are receiving a similar number each month. The second is a significant increase in the amount of documentation which accompanies such applications. As explained below, the tribunal seeks to list such applications swiftly because of their emergency nature. To make way for them, other hearings are often postponed or delayed. Because the success rate of applications for interim relief remains low, these trends have an adverse effect on the administration of justice, including causing unnecessary delay to other users. Further complexity is added when, in response to applications for interim relief, parties then make consequential applications (and counter-applications) for costs/expenses.”[28]HHJ Hand QC in Galilee is unlikely to have considered what the effect of his Judgment would be on interim relief applications where dismissal occurs after the initial claim is presented. Interim Relief applications were few and far between in 2017/2018, yet as described in the Presidential Guidance, in 2026 there has been a surge. The decision in Galilee did not have the effect of debarring a claimant from being able to bring a new complaint by amendment as the Tribunal had the option to extend time using the just and equitable or reasonably practicable test, whichever was applicable. Yet for applications for interim relief, there is no scope to extend time. s.128(2) says “The tribunal shall not entertain an application for interim relief unless it is presented to the tribunal before the end of the period of seven days immediately following the effective date of termination (whether before, on or after that date)”.[29]Prakash tells us that the term “present” does not have a technical meaning and that it includes an application to amend. When Galilee is considered in detail, the case centres on the procedural common law doctrine of " relation back " now being defunct, section 35(1) of the Limitation Act 1980 not applying directly to amendments to pleadings in the ET, previous authorities decided on “relation back” being distinguished and that discretion to permit amendment was not constrained necessarily by limitation. Unsurprisingly, the effect on applications under s.128/129 ERA of the date of presentation being deemed to be the date the application is decided upon was not considered.[30]Parliament deliberately imposed a strict 7-day requirement because interim relief is an exceptional remedy involving compulsory continuation of remuneration. Interim relief is an emergency measure where (as set out in the Presidential Guidance) swift hearings are mandated and other hearings are often postponed or delayed to make way for them. Parliament cannot have intended that the availability of interim relief would depend upon how quickly the Tribunal happens to determine an (in this case an unopposed) amendment application. Section 128(1) says “An employee who presents a claim to an employment tribunal that he has been unfairly dismissed..”. On the Respondent's construction, a claimant who applies to amend on the day after dismissal and applies for interim relief within the statutory period would nevertheless lose access to interim relief if the Tribunal did not determine the amendment application until after the seven day period had expired (which is extremely likely). The availability of interim relief would therefore depend upon the timing of the Tribunal's decision rather than the timing of the claimant's actions. It is unlikely that Parliament intended that a Tribunal’s actions in deciding an application for amendment within a (approximately) 7 day period would mean that a claimant could or could not claim interim relief. I do not consider that to be the effect of sections 128 and 129 when read alongside the approach to presentation adopted in Prakash. The statute says “presented”, it does not say “accepted”, “permitted” or “decided”.[31]The present question is not whether the proposed automatic unfair dismissal complaint has yet taken effect as an amended cause of action. That was the question addressed in Galilee, which held that a newly introduced cause of action takes effect when permission to amend is granted. The question before me is different: whether the Claimant has “presented” such a complaint for the purposes of section 128(1) ERA. In Prakash, the EAT held that a complaint may be presented by amendment as well as by the issue of a separate originating application. It is my decision that by making an application to amend to include one of the dismissals set out in s.128(1) (which includes dismissal for having made protected disclosures) the Claimant has “presented” the complaint. This is notwithstanding there has not been a determination on whether or not the amendment will be allowed. By necessity, there is no time/resource for the application to amend to have been determined within 7 days.[32]Whether permission to amend should be granted remains a separate question. I also add that to be successful in an application for interim relief, the legal test is whether there is a “pretty good chance of success” of the interim relief application being successful. As set out in the Presidential guidance, the tribunal will take into account all elements of the claim, not just the reason for dismissal: “This may include preliminary matters such as whether the claimant was an employee (if this is disputed), whether the claimant’s resignation should be construed as a dismissal (a “constructive” dismissal), and whether a protected disclosure has been made: Ministry of Justice v Sarfraz [2011] IRLR 562”[33]As set out above, section 128(1) provides that “An employee who presents a claim to an employment tribunal that he has been unfairly dismissed and … that the reason (or if more than one, the principal reason) for the dismissal is one … specified in … section 103A … may apply to the tribunal for interim relief.” In Hancock v Ter-Berg and another [2020] IRLR 97, HHJ Choudhury (P) held that the question was whether the applicant was entitled to bring a complaint of interim relief as the Respondent argued he was not an “employee”. HHJ Choudhury stated: “34. … As is made clear by s 98 of the 1996 Act, it is only employees that have the right not to be unfairly dismissed. However, a complaint under s 111 can comprise many elements, any one of which might be disputed. Apart from whether the complainant is actually an employee within the meaning of s 230 of the 1996 Act, there is the question of dismissal. The employer might dispute that there was a dismissal at all, and contend that there was in fact a voluntary resignation. There may be other issues, such as whether the complaint was presented within the appropriate time limit from the effective date of termination. There may be a dispute as to the effective date of termination itself if, for example, there was an issue as to when the notice of termination took effect. …[38]In my judgment, the construction argued for by Mr McNerney is to be preferred. Section 129 requires the Tribunal to be satisfied that it is likely that 'on determining the complaint to which the application relates the Tribunal will find that the reason or principal reason for dismissal' was one of the proscribed reasons. The Tribunal will clearly need to consider the likely outcome of the eventual determination of the complaint. The provision does not preclude a Tribunal from having regard to the merits of other elements of the claim aside from the reason for dismissal. Indeed, if it were not to have regard to such matters at the interim relief stage, then it would not be considering the likely outcome on determination of the complaint (but only part of it), and those words would be rendered otiose. …[43]…In my judgment, it would severely undermine the intended speed of an interim relief application if it were to be delayed or derailed by potentially numerous preliminary hearings to determine conclusively whether or not other elements of the complaint are satisfied.” [Tribunal’s emphasis]34. The determination of an application for interim relief does not involve a full assessment of the facts but a summary assessment based on limited evidence, usually in the form of written statements and documents. As stated in Hancock, an experienced Employment Tribunal is well placed to assess, on a summary basis, the prospects of success in a claim where employee status is disputed, and would be in a position to determine whether or not there is a likelihood of success on that preliminary issue.35. I do not regard Hancock as directly determining the issue before me. I rely upon it only for the narrower proposition that interim relief applications frequently require the Tribunal to undertake a provisional assessment of matters that have not yet been finally determined. Time limits are one of the matters, along with employee status and whether or not there was a dismissal/protected disclosure etc that the applicant must have a “pretty good chance of success” in. In this case, given the timing, lack of objection from the Respondent, the application to amend is likely to be granted. Of course, this is not always the case. Take the example where the application to amend is made 3 weeks before the final hearing, it might be that the balance of injustice and hardship were to fall with the Respondent were the amendment to be granted and so the application to amend may not have a “pretty good chance of success”. As set out by HHJ Choudhary in Hancock, this is one of the questions that can be decided by the Employment Tribunal in deciding whether each element of the complaint, including applications to amend/time limits, have a “pretty good chance of success”. Approved by: