Thread by @JasonBraier

1/ Piepenbrock v LSE: EAT rejects amendment appeal to bring heavily out of time amendments re matters happening 8 years earlier, finding EJ erred as to whether P had already brought claims re the amended matters, but the error wasn't material.
bailii.org/uk/cases/UKEAT…
#ukemplaw

2/ P was a renowned economist and academic at LSE, suffering depression & anxiety & recently diagnosed on the with autism spectrum disorder. When he was on a lecture tour in the US, an accompanying student made sexual harassment allegations against him, which P said were false.

3/ This was in 2012. P went on long-term sick leave & when his fixed term contract ended in 2014 it wasn't renewed. A year earlier, the allegations were found not proven.
In 2015, P brought ET claims for unfair dismissal, victimisation & discrimination arising from disability.

4/ The PoC included assertions the student's allegations were untruthful & unjustified & that their handling caused P anxiety & depression, though that would be subject of separate High Court proceedings. P asked for the ET claim to be stayed pending the High Court claim.

5/ P lost the High Court claim in 2018 & appealed unsuccessfully. The stay of the ET claim was lifted in Nov 2019 (nearly 5 years after it was brought). 5 months later, P applied to amend the claim.

6/ The application was 230 pages long, sought to add 13 new respondents & to add claims for direct discrim, harassment based on sex, disability, race & religion, indirect disability discrim, FTMRA & personal injury.

7/ The EJ refused to add the new respondents or the new claims, finding none post-dated the presentation of the ET1, they were significantly out of time, P chose not to bring claims which he could back in 2015 & there'd been considerable delay post-stay.

8/ 1 aspect of his explanation for delay was that he'd only been provided in 2017 with an email from the dept head to dept admin of 23.11.12 about a meeting P attended at which P says he filed a formal grievance against the student. P said he should have had this email earlier.

9/ P relied on that delay in applying for reconsideration & also complained that the EJ, in assessing delay, had failed to take his autism into account in re ability to make litigation choices. The reconsideration application was rejected.

10/ On a 3(10) ruling, the EAT allowed P to appeal only in respect of the EJ's refusal to allow P to amend to add direct sex discrimination/harassment claims re LSE's failure to act on the grievance P alleged he raised at the 19.11.12 meeting.

11/ The EAT noted the EJ mistakenly considered that these claims didn't add anything to existing victimisation claims re failure to deal with grievances. The mistake was that those victimisation claims dealt with subsequent grievances rather than that of 19.11.12.

12/ It was P's position he'd not earlier raised claims re the 19.11.12 grievance because at the time he lacked documentary proof that he'd done so as he believed he needed that to bring the claim & could have been subject to costs awards otherwise.

13/ The EAT found that position untrue given the involvement of P's lawyers at the outset & their likely advice, the fact P brought some other claims without documentary proof & the fact the email didn't even mention whether P raised at grievance at the meeting.

14/ In any event, even though the EJ had wrongly misunderstood that the alleged 19.11.12 grievance wasn't part of claims already brought, the EJ was right to find the prejudice under Selkent fell down on LSE's side. Absent the error, the EJ would have reached the same result.

15/ Accordingly the error was not a material one & the appeal was dismissed. Even if the error had been material, if P gave the EAT permission to decide whether to allow the amendments, it would have refused the amendments for like reasons to the EJ.