Amending ET1s- the Tribunal’s recent Approach

Applications by Claimants to amend their claim forms can face Respondents at any stage in the litigation, and they can cause delay and increased costs. So too may a new issue come to light which had not been apparent at the time of issue, which to refuse a Claimant to add it to their claim may be draconian indeed.

Moreover, the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013, require that in addition to using the prescribed form, all claims must contain certain specified information- rule 12(1) of the first schedule states: ‘The staff of the tribunal office shall refer a claim form to an Employment Judge if they consider that the claim, or part of it, may be- (a) one which the Tribunal has no jurisdiction to consider; or (b) in a form which cannot sensibly be responded to or is otherwise an abuse of the process.’ This can mean that Claimants are sometimes prompted to amend their claims by the tribunal itself who have a wide discretion in their case management powers to allow or refuse applications to amend.

It is therefore helpful to be able to gauge the prospects of such an application being successful whichever side you are on.

The Application

It should be noted that according to paragraph 12 of the Presidential Guidance on general case management, issued on 13th March 2014 under the provisions of Rule 7 of the aforementioned Employment Tribunals Rules of Procedure, an application by a party ‘should state the reason why it is made; why it is considered to be in accordance with the overriding objective to make the Case Management Order applied for…

Under its general power to regulate its own proceedings and specific case management powers, an Employment Tribunal can consider an application to amend a claim at any stage of the proceedings.

The guidance goes on: ‘the tribunal can allow amendments but will generally only do so after careful consideration and taking the views of the other parties.’

So how has the tribunal been dealing with these of late?

The case law

The starting point is the leading authority of Selkent Bus Co Ltd v Moore [1996] ICR 836 which has since been affirmed by the Court of Appeal, for instance in Hammersmith and Fulham London Borough Council v Jesuthasan [1998] ICR 640.

In Selkent, the EAT confirmed that the Tribunal should take into account all the circumstances and should balance the injustice and hardship of allowing the amendment against the injustice and hardship of refusing it.

But what are the relevant circumstances? Whilst it was impossible and undesirable to attempt to list them exhaustively, the EAT considered that the following are relevant:

(a) The nature of the amendment – this can cover a variety of matters such as:

i) The correction of clerical and typing errors;

ii) The additions of factual details to existing allegations;

iii) The addition or substitution of other labels for facts already pleaded; or

iv) The making of entirely new factual allegations, which change the basis of the existing claim.

(b) The applicability of time limits – if a new complaint or cause of action is proposed to be added by way of amendment, it is essential for the tribunal to consider whether that complaint is out of time and, if so, whether the time limit should be extended under the applicable statutory provisions.

(c) The timing and manner of the application – it is relevant to consider why the application was not made earlier and why it is now being made: e.g. the discovery of new facts or new information appearing from documents disclosed on discovery.

Thomson v East Dunbartonshire Council & Anor UKEATS/0049/13/JW

In the recent case of Thomson, the EAT considered the application of these principles. In this case, the Claimant worked for a substantial period of time as a Finance Manager for East Dunbartonshire Development Company (which became East Dunbartonshire Enterprise Trust Limited (“EDET”)). The work, which EDET did for East Dunbartonshire Council (“EDC”), moved in-house to EDC with effect from 1 April 2012. 

In doing so, a number of staff who had worked for EDET in the part of the undertaking, which was being transferred, became employees of EDC. EDC accepted that seven out of the nine employees said by EDET to be working in that part of the undertaking which was being transferred, were assigned to it. EDC therefore accepted those employees as transferred under TUPE. But EDC declined to accept that either the Claimant or his assistant were assigned to the part of the undertaking transferred and declined to recognise the Claimant as an employee. He anticipated that he would be made redundant from EDET at the end of September 2012 because once the undertaking had been transferred; there would be little or no work for him left to do for EDET. This is what transpired and he was dismissed by EDET. 
 Although EDET argued that he should have been transferred to EDC under TUPE, EDET accepted him as continuing in their employment. In June 2012 the Claimant issued an ET1 (which was in time) against both EDC and EDET in relation to the transfer. That ET1 stated that his employment was continuing. Although he could have ticked the ET1 box saying that he was unfairly dismissed, he did not do so. He ticked the box headed “Other complaints” and claimed monetary compensation. The basis for his claim for compensation for not being transferred to EDC was: “My claim is that I should be compensated by EDC for their decision not to accept my transfer under TUPE.”

In March 2013, the Claimant made an application to amend his ET1. He accepted that at one of the three CMDs which had taken place it was “rightly pointed out” that his application did not seek a finding of unfair dismissal – it was an application in respect of other complaints – and the view was expressed at the December 2012 CMD was that it could only be a complaint in respect of a failure to inform and consult under TUPE. In December 2012, following the CMD, the Claimant issued a separate claim of unfair dismissal against EDC. Then, in March 2013 the Claimant wrote to the ET applying to amend his original ET1 to preserve his position by adding a complaint of unfair dismissal against EDC, arguing that it was intrinsic to his existing claim, and arose out of the same facts. The EJ directed himself in accordance with Selkent and refused the amendment, deciding that the Claimant’s application was not simply a re-labeling exercise in that “he had consciously not presented and had not given notice of a complaint of unfair dismissal“. In general terms, whilst the amendment did arise out of the same factual matrix, it was a new claim. The Claimant had said that he had become aware of his error in not asserting unfair dismissal in early November 2012 at the latest and the EJ noted that there was no explanation as to why he then delayed until March 2013 in seeking leave to amend. The EJ had taken into account the fact the new claim was presented long outside the three-month time limit for unfair dismissal claims. The EAT concluded that the EJ had correctly approached the exercise of his discretion. There was no factor, which it is said he left out, which legally he was obliged to take into account. And, given there was an application for an amendment, the very nature of which presupposed that it might be determined one way or the other, it was impossible sensibly to say that a decision against the Claimant was perverse. On the material before the EAT there was no error of law in the exercise of the EJ’s discretion to refuse the particular amendment in the particular circumstances.

Wade v CT Plus Community Interest Company UKEAT/0510/13/JOJ

In Wade the issue was whether it was a re-labeling exercise or a new claim. The application was to amend the ET1 to include a claim of disability discrimination which the EAT decided was a new claim.

The Claimant was a bus driver who had a medical condition relating to his right eye. Following an occupational health report, a doctor expressed the view that the Claimant was not fit to return to his driving duties and that it was impossible to say how long it would take for a full recovery. He also advised that the Claimant was disabled within the meaning of the Equality Act 2010. He added that in his opinion the Claimant was not fit to drive any vehicle and that the DVLA should be informed. 

The Claimant was dismissed based on the fact that he was unfit to drive buses and there was no suitable alternative employment available for him. He lodged an ET1 at the Tribunal on 31st July 2012. His claim was one of unfair dismissal only; he did not indicate any disability discrimination claim. Following legal advice, on 19th October 2012 the Claimant’s representative made an application to amend to add a complaint of disability discrimination. At the tribunal, the key issue was whether, applying the Selkent guidelines, the application to amend was simply a re-labeling exercise, as was submitted on behalf of the Claimant, or an attempt to raise a wholly new course of action based on different facts, as the Respondent contended. The EJ accepted the Respondent’s contentions and refused the amendment. On appeal the EAT accepted that “the Judge was correct in regarding it as… an entirely new claim unconnected with the original claim as pleaded“. Although in his ET1 the Claimant had referred to the medical problem with his right eye, there was no suggestion of a disability claim based on a failure to make reasonable adjustments. In the proposed amendment he put forward two possible adjustments: either transferring him to another role, or creating an unspecified role for him to perform. 

However, the proposed amendment not only raised the new cause of action under the Equality Act 2010, but also the factual basis for the reasonable adjustment claim materially differed from the ET1 pleading. Previously, the Claimant had not suggested that alternative employment was available for him at the time of dismissal. In the proposed amendment he put forward possible adjustments that raised the possibility of evidence being called on both sides in relation to the availability of a passenger assistant post, contrary to the evidence of the Respondent, which had been accepted by the EJ (that no alternative employment was available). Secondly, whereas there is no duty on an employer to create a job for a Claimant dismissed on grounds of ill-health capability for the purposes of unfair dismissal, such a duty may exceptionally arise in a reasonable adjustment claim under the Equality Act 2010 (see Chief Constable of South Yorkshire Police v Jelic [2010] IRLR 745). 

As there would be a need for fresh evidence, it was self-evident that the disability claim was not based on the same facts. Further, the EAT disagreed with the Claimant’s suggestion that the EJ had not properly applied the Selkent guidelines. The EJ’s findings in relation to what seemed to be “an impeccable self-direction” on the law provided no grounds in law for interfering with the amendment ruling by the EJ.

Makauskiene v Rentokil Initial Facilities Services (UK) Ltd UKEAT/0503/13/RN

In Makauskiene the question was whether an application to amend an ET1 to include whistleblowing claims a re-labeling exercise? The EAT said that it was, in part. On 1st November 2012 the Claimant lodged an ET1 claim form. She was unrepresented and ticked boxes to indicate that she was bringing claims for unfair dismissal and race discrimination. She claimed that she had been unfairly dismissed after the Respondent cut her hours and that her dismissal for directly contacting her employer’s client for whom she provided services was unfair, as other colleagues had done so without being dismissed. On 31st July 2013, a Law Centre wrote to the tribunal on behalf of the Claimant with an application for permission to amend the ET1 claim form. The Claimant applied to add (a) a claim under section 103A of the Employment Rights Act 1996 (dismissal for having made a protected disclosure) to the existing unfair dismissal claim and (b) a claim of detrimental treatment by reason of whistleblowing. It was suggested that these were simply re-labeling amendments. The Claimant listed various detriments (20 in all), which she said she had suffered by reason of protected disclosures. The EJ applied the principles in Selkent, but refused to allow both amendments. The EJ had concluded that the amendment sought to bring a protected disclosure claim was the bringing of a new claim, although a claim that referred to events already pleaded. 

As to time limits, he said the claim was “a long way out of time“. 

As to the manner and timing of the application, the EJ said that the application was very late, some months after a hearing at which a considerable amount of time had been spent seeking to analyse the Claimant’s case and drawing up a comprehensive list of issues and it was made after the date of exchange of witness statements. Further, the EJ considered that the Respondent would suffer prejudice by reason of substantial additional costs, particularly as numerous protected disclosures had been asserted by the Claimant, which would need analysing. 

The EAT started by providing a reminder that decisions of an ET at first instance on case management questions were capable of challenge only where the decision has (i) been made under a mistake of law, or (ii) in disregard of principle, or (iii) under a misapprehension of the facts, or (iv) where irrelevant matters were taken into account, or (v) essential matters had been omitted, or (vi) where the decision was outside the generous ambit within which reasonable disagreement is possible. The EAT thought it was important to draw a distinction between the claim of unfair dismissal and the claims of detriment by reason of public interest disclosure. 
The Claimant submitted that the amendment did no more than add the label of section 103A to a claim which already pleaded unfair dismissal and which already pleaded the disclosure on which the Claimant wished to rely, the EAT agreed. However, the EAT held that the claim of public interest detriment, if allowed, would go back a very long time prior to dismissal and that the EJ did not err in law in rejecting the application to amend in respect of a public interest detriment claim, taking in to account that there had been a previous CMD at which the issues in the case had been carefully considered with the Claimant; that the application to amend was late; and that the expansion of the issues and the time required for the full hearing.

This decision is in line with the earlier authority of New Star Asset Management Holdings v Evershed [2010] EWCA Civ 870, where the Claimant who had pleaded ordinary unfair dismissal was allowed to amend to plead section 103A where the material on which he relied was within the original claim form. It was therefore purely putting a new label on facts already pleaded. The EAT decided that permission to amend ought to have been given in respect of the unfair dismissal claim. It was an existing claim. The matters alleged to be protected disclosures were always part of it and allowing the amendment would not materially increase the amount of evidence required for the unfair dismissal claim. There was therefore little, if any, prejudice to the Respondent in allowing the Claimant to argue protected disclosures and that dismissal was wholly or mainly by reason of such disclosures.

Conclusion

Where does that leave us?

The Presidential Guidance referred to above states the following at paragraph 9: ‘While there may be flexibility of approach to applications to re-label facts already set out there are time limits. Claimants must set out the specific acts complained of, as tribunals are only able to adjudicate on specific complaints. A general complaint in the claim form will therefore not suffice. Further, an employer is entitled to know the claim it has to meet.’ It goes on at paragraph 10 (2) to say: ‘It will not always be just to allow an amendment even where no new facts are pleaded. The tribunal must balance the injustice and hardship of allowing the amendment against the injustice and hardship of refusing it.’

In other words, as is usually the case, the outcome of the exercise of discretion to allow or refuse an application to amend will turn on the particular facts of the case.

SARAH HORNBLOWER

Magdalen Chambers

 

 

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