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Health and Safety Claims
Rad Kohanzad represented Mr Sujith Manuel in his successful appeal concerning a health and safety detriment claim under section 44 of the Employment Rights Act 1996. The Employment Appeal Tribunal (EAT) held that the claim had already been pleaded in Mr Manuel’s original Employment Tribunal claim form, so he did not need permission to amend it. In the alternative, the EAT held that the Employment Judge had erred in the approach to the balance of prejudice when refusing the amendment. The decision illustrates the importance of reading a claim form objectively to identify the claims it already contains.
Background and procedural history
Mr Manuel worked for Netduma Ltd as a Linux Systems Developer from February 2021 until his dismissal in May 2022. He alleged that, after raising concerns about a mobile air-conditioning unit installed near his desk and the effect on his health, he experienced harassment and other detrimental treatment, culminating in dismissal.
His original claim form, submitted in October 2022, included an express reference to section 44 of the Employment Rights Act 1996. That provision protects employees against certain detriments for health and safety reasons. However, the claim also contained extensive, loosely structured particulars and referred to several overlapping complaints, including whistleblowing.
During subsequent preliminary hearings, the parties worked on lists of issues setting out the claims to be decided. The health and safety detriment claim was not included in the draft lists. In July 2024, an Employment Judge refused Mr Manuel’s application to amend his claim to include it, finding that it had not previously been pleaded and that the application was late.
Mr Manuel appealed. The central question was whether his original claim form already contained a section 44 detriment claim. Alternatively, if it did not, the EAT had to consider whether the Employment Judge had approached the amendment application correctly.
When is a claim already pleaded?
A claim does not necessarily need to be labelled perfectly in an Employment Tribunal claim form to have been brought. The question is whether, on an objective reading of the claim form and its particulars, the relevant complaint is already being asserted.
The EAT considered guidance from the Court of Appeal in Moustache v Chelsea and Westminster Hospital NHS Foundation Trust [2025] EWCA Civ 185, which addressed how Employment Tribunals should identify the claims requiring determination. That guidance included the principle that claims should be identified from an objective analysis of the parties’ statements of case. Where a complaint is plainly being asserted in the particulars, it should be treated as an existing claim rather than a new claim requiring an amendment.
The distinction matters because an application to amend can involve questions of delay, limitation and prejudice. If the complaint was already pleaded, those questions do not determine whether it can be included as a claim in the first place.
Why the EAT allowed the appeal
The section 44 claim was already in the claim form
The EAT examined the wording of Mr Manuel’s original claim form and attached particulars. It identified an express reference to section 44(1) and wording distinguishing health and safety detriment from the separate whistleblowing complaints.
The EAT concluded that, despite the confusion elsewhere in the documents, the health and safety detriment claim was “plainly being asserted”. Applying the approach described in Moustache and McLeary v One Housing Group Ltd, the EAT considered that the claim “shouted out” from the particulars.
The Employment Judge had therefore been wrong to treat the section 44 claim as a new complaint requiring permission to amend. The appeal succeeded on this primary ground.
The alternative argument about amendment
Rad also argued that, if the section 44 claim had not already been pleaded, the Employment Judge had failed to assess the balance of prejudice properly and had relied impermissibly on delay and the way the application was made.
The EAT’s conclusion on the primary ground meant that permission to amend was unnecessary. It also identified errors in the alternative approach to the amendment application. The relevant assessment is not a mechanical checklist: the Tribunal must weigh the practical injustice or hardship to each party, including the real consequences of allowing or refusing the amendment. Delay is relevant, but it should not, by itself, determine the application.
The EAT was careful not to treat its decision as criticism of the Employment Judges who had managed the earlier proceedings. It recognised the difficulties caused by the claim’s length and lack of structure, while resolving the specific legal issue before it.
What the decision means
The substance of the claim matters. Whether a claim has been brought depends on an objective reading of the claim form and particulars, not solely on whether the complaint has been neatly labelled or appears in a later list of issues.
A list of issues is not necessarily the final answer. The Tribunal must identify and determine the claims that emerge from the statements of case. A complaint’s omission from a draft list does not, on its own, establish that it was never pleaded.
Amendment decisions require a real assessment of prejudice. Where an amendment is needed, delay and procedural history matter, but the Tribunal must consider the practical injustice to both sides rather than rely on a single factor.
These principles do not mean that every reference to workplace health and safety establishes a section 44 claim. The documents must be read as a whole, and the complaint must be sufficiently identifiable from the pleaded case. Nor does the decision mean that late amendments should routinely be allowed: the EAT’s primary conclusion was that this particular claim was already pleaded.
Considering an appeal about a claim being excluded?
If an Employment Tribunal has treated a complaint as a new claim, refused an amendment or left an issue out of the proceedings, the relevant question may be whether it correctly identified the claims already pleaded and applied the proper legal approach.
An appeal is not simply an opportunity to reargue how a claim should have been presented. It requires an arguable error of law, assessed against the Tribunal’s reasons and the procedural history. I can review the decision and advise on the merits of a potential Employment Appeal Tribunal appeal before you decide whether to incur the further costs of pursuing it. If you decide to proceed, I can also advise on and represent you in the appeal.
Find out more about my Employment Tribunal appeal review and advice service
Case details
Case: Mr Sujith Manuel v Netduma Ltd
Neutral citation: [2026] EAT 44
Judgment date: 3 March 2026
Judge: Her Honour Judge Russell
Case number: EA-2024-001029-AT
EAT outcome: Appeal allowed; the section 44 health and safety detriment claim was already pleaded and did not require amendment.
Counsel for the Appellant: Rad Kohanzad
Official judgment: Read the full EAT judgment (PDF)
