Johnstone vs Glasgow City Council

This case involved an appeal by Mr. and Mrs. Johnstone, foster carers, against Glasgow City Council, focusing on the refusal of proposed amendments to their claims in an employment tribunal.

TLDR:

• Mr. and Mrs. Johnstone, foster carers, filed claims against Glasgow City Council.
• The claims included allegations of unlawful detriment due to disclosures and health & safety concerns.
• The Employment Judge allowed some amendments but refused others.
• The Johnstones appealed the refusal of certain amendments.
• The Employment Appeal Tribunal dismissed the appeal, upholding the original decision.

The claimants, Mr. James Johnstone and Mrs. Christine Johnstone, were foster carers employed by Glasgow City Council. They lodged claims against the council in June 2016, alleging unlawful detriment suffered due to making disclosures and health & safety concerns, contrary to sections 44 and 47B of the Employment Rights Act 1996. These claims arose from their care of a particular child, referred to as 'A', between June 2015 and May 2016.

Initially, the Employment Tribunal held a preliminary hearing to determine the employment status of the Johnstones. By judgment promulgated on 1 August 2017, the Tribunal found that the claimants were employees of the council. The council's appeal against this decision was dismissed by the Employment Appeal Tribunal in August 2020, and the case was remitted back to the Employment Tribunal.

In December 2019, while the claims were pending before the Employment Appeal Tribunal, the Johnstones applied to amend their respective ET1 forms. These applications were opposed by the council and were initially declined by the Employment Tribunal. Following the remittal, the Employment Tribunal ordered the Johnstones to provide further particulars of their claims and allowed the council time to respond. A preliminary hearing was scheduled to consider the amendment applications.

Employment Judge McManus allowed some of the proposed amendments but refused others. The Johnstones appealed the refusal of certain amendments, arguing that the judge had misapplied the law and failed to consider relevant factors. They contended that the proposed amendments were closely connected to the original claims and should have been allowed.

The Employment Appeal Tribunal, presided over by The Honourable Lord Stuart, dismissed the appeal. The Tribunal held that the decision to allow or refuse amendments was a matter of judicial discretion. It found that Employment Judge McManus had correctly identified and applied the appropriate legal test, considered all relevant factors, and reached a conclusion that was open to her in the circumstances.

The Tribunal emphasized that the correct approach to deciding whether to allow an amendment involves considering all the circumstances of the case, including any injustice or hardship that may result from the decision. It noted that the judge had taken into account the nature of the proposed amendments, the timing of the application, and the potential impact on the proceedings.

Ultimately, the Tribunal concluded that the Employment Judge had not erred in her discretion and that her decision to refuse certain amendments was justified. The appeal was therefore dismissed, and the original decision was upheld.

Legal representatives: Mr. Joshua Jackson (instructed by Balfour & Manson) for the Appellants, Mr. Stephen Miller (instructed by Glasgow City Council) for the Respondent.

Judicial Panel: The Honourable Lord Stuart

Case Citation Reference: [2024] EAT 75