The Claimant's ET1 claimed that he had been unfairly dismissed. He then applied, out of time, to amend his claim to include claims of having made protected disclosures. The EJ refused the amendment saying that nothing the EJ had heard from the Claimant persuaded him that it was not reasonably practicable for him to have made his complaint within the period of three months. The Claimant appealed on the basis that the EJ failed to have regard to all the circumstances as the guidance in Selkent makes it clear should be done. Rather, the EJ focused exclusively on the issue of time limits and failed in particular to have regard to the nature of the amendment proposed by the Claimant or to consider whether and to what extent it was legally and factually similar to or different to what was already before the Tribunal in the claim form.

The EAT allowed the appeal. While the relevant principles in the Selkent case may have been drawn to the EJ's attention he then failed, regrettably, to apply those principles when he considered the facts of the present case in the material part of his reasoning. The matter was remitted to a fresh Tribunal to determine whether or not the amendment would be allowed.

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Appeal No. UKEAT/0144/16/JOJ

EMPLOYMENT APPEAL TRIBUNAL

FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8AE

At the Tribunal

On 28 February 2017

Before

THE HONOURABLE MR JUSTICE SINGH

(SITTING ALONE)

CONTEH (APPELLANT)

**

**

FIRST SECURITY GUARDS LTD (RESPONDENT)

Transcript of Proceedings

JUDGMENT

For the Appellant
MR SIMON CHEETHAM (of Counsel)
Bar Pro Bono Scheme

For the Respondent
MS DEBBIE GRENNAN (of Counsel)
Instructed by:
BPE Solicitors LLP
St James' House
St James' Square
Cheltenham
Gloucestershire
GL52 6DZ

PRACTICE AND PROCEDURE - Amendment

The Claimant applied to amend his claim (which already included a claim for unfair dismissal) to add claims for detriments imposed, and dismissal, on the ground that he had made protected disclosures. The claims were now out of time. The Employment Tribunal refused the application to amend.

Held, allowing the Claimant's appeal: the Employment Tribunal had erred in law in failing to apply the guidance in Selkent because it had focused exclusively on the time limit point and whether it was reasonably practicable to bring the additional claims within the time limit of three months, rather than having regard to all the circumstances of the case, in particular the nature of the proposed amendment. The case would therefore be remitted to a differently constituted Employment Tribunal for reconsideration in accordance with the Employment Appeal Tribunal's Judgment.

1. This is an appeal against a Decision of the Employment Tribunal at London (Central) promulgated on 3 March 2016. The Decision was made by Employment Judge Stewart, sitting alone, after a Preliminary Hearing that had taken place on 28 January 2016. So far as relevant, the Decision under appeal was to refuse an application by the Claimant to amend the claim against the First Respondent; that Respondent is the only Respondent in the present appeal.

1. For present purposes, the factual background can be derived from the Employment Tribunal's Judgment, in particular at paragraphs 2 to 4. The Claimant was born on 6 September 1965. He was employed by the First Respondent. The First Respondent had a number of clients, including the Second Respondent before the Employment Tribunal. The Claimant's employment had transferred to the First Respondent from an organisation called Reliance Security Services Ltd on 19 October 2009. The First Respondent dismissed the Claimant on 17 June 2015. At that time the Claimant was based at a site that belonged to the Second Respondent.

1. On 10 August 2015 the Claimant lodged his claim with the Employment Tribunal. The Respondent filed its form ET3 on 19 October 2015. On 12 November 2015 a case management hearing took place before Employment Judge Baty. As was noted at paragraph 10 of the Case Management Summary by Employment Judge Baty, there was an issue at that hearing concerning an amendment about potential whistleblowing complaints. Employment Judge Baty took the view that this would require an amendment, in particular as there was no reference to protected disclosures or whistleblowing in the claim and from the facts pleaded one would not think straightaway that what was being pleaded was a whistleblowing complaint. However, he did acknowledge that paragraph 3 of the narrative in the claim form did make reference to a complaint about the Data Protection Act 1998 ("DPA") and there was subsequent reference to detrimental treatment and so any amendment might be a matter of relabelling. Accordingly, Employment Judge Baty directed that there should be a Preliminary Hearing at which the matters to be considered would include an application to amend the claim form to include the whistleblowing complaints.

1. The reference by Employment Judge Baty to the Particulars of Claim requires some further elaboration. So far as relevant, that part of the Particulars of Claim had a heading "The Data Protection Violation Claim". It alleged that on 23 February 2015 the Claimant had received two inseparable CCTV stills. It appeared, according to the pleading, that the data had been processed and disseminated via internet emailing without the Claimant's prior consent for it. In essence, the Claimant was making an allegation of breach of the DPA. Unsurprisingly, Employment Judge Baty held that that was outside the jurisdiction of the Employment Tribunal. In the factual narrative to which Employment Judge Baty made reference, however, there was in the Particulars of Claim at sub-paragraph (3) of paragraph 8.2 reference to an email alleged to have been sent by the Claimant on 25 February 2015 complaining of the data violation that he alleged had taken place. There were then set out a number of specific allegations that were directed at the proposed Second Respondent, including allegations of racial discrimination.

1. After the Preliminary Hearing had taken place on 28 January 2016 before Employment Judge Stewart, he issued his Judgment. It will be necessary in due course to refer to it in greater detail. However, for present purposes it will suffice to note that the two decisions that he reached were that the application to amend the form ET1 so as to add complaints under sections 47B and 103A of the Employment Rights Act 1996 ("ERA") (protected disclosures) would be refused. That is not expressly set out, but it is clear that that was what was meant at the beginning of the Judgment. Secondly, the claim against the Second Respondent was dismissed, on the basis that the Employment Tribunal lacked jurisdiction, since the claim had been brought out of time and the Employment Judge concluded that there was no reason to extend time either under section 48 ERA or under section 123 of the Equality Act 2010.

1. There was an application by the Claimant for reconsideration of that Decision. The matter was reconsidered by Employment Judge Davidson on 17 March 2016. His Decision was promulgated on 30 March 2016. The relevant section of that Judgment appears at paragraph 5. It is common ground before me that there is no additional reason to be found. In particular, at paragraph 5.2 the Judgment stated simply:

"5.2. I therefore find no reason to vary or revoke the decision of Employment Judge Stewart in relation to the amendment issue."

1. In those circumstances, very fairly, Ms Grennan - who has appeared on behalf of the Respondent to this appeal - accepted at the hearing before me that if this Appeal Tribunal thought that the underlying decision of Employment Judge Stewart should be successfully appealed against then there was nothing in the reasoning on the reconsideration by Employment Judge Davidson that would make any difference to that conclusion. Accordingly, for practical purposes it was common ground before me that the reconsideration can be put to one side.

1. Having set out the issues before him, Employment Judge Stewart then set out the background in somewhat greater detail than is necessary for present purposes at paragraphs 2 to 18. He then summarised the evidence that he had heard, which included evidence from the Claimant before him, at paragraphs 19 to 25. At paragraph 26 he had a heading on "The Law" but stated simply this:

"26. Mr Briggs for the second Respondent has helpfully provided me with written submissions in which, among other things, he sets out the Legal Principles pertinent to the issues before me. I accept these principles as correct and adopt them for the purposes of this judgment."

1. I have not seen the written submissions to which reference is made in that paragraph. It is clear from the terms of that paragraph that the Employment Judge was incorporating that written document into the Judgment, albeit by reference rather than setting out the legal principles in terms. However, it is common ground before me that at the hearing before him Employment Judge Stewart was referred to the relevant legal principles, including the authority of Selkent Bus Co Ltd v Moore [1996] ICR 836 EAT, to which I shall return. In particular, I am informed by Ms Grennan, who appeared on behalf of the First Respondent at that time, that although her submissions are not expressly referred to at paragraph 26 of the Judgment she extensively took the Employment Judge through Selkent and made submissions orally applying the principles to be found in that case to the facts of the present case. Mr Cheetham, who has appeared on this appeal on behalf of the Claimant, is not in a position to gainsay that. He was not present at the hearing before the Employment Tribunal and, fairly, does not seek to go behind what has been said to me by Ms Grennan about what occurred.

1. Returning to the structure of the Judgment of Employment Judge Stewart, he then turned to the first issue before him - which is the only one that is material for present purposes - which was whether to allow the application to amend the claim to bring complaints under sections 47B and 103A ERA in relation to alleged protected disclosures. The Employment Judge said at paragraph 28 that the allegation was:

"28. … that the Claimant suffered detriment and dismissal as a result of a protected disclosure on 25 February 2015 and again on 25 March 2015."

1. He continued at paragraph 29 to note that the Claimant admitted that he had had all the information in respect of the Second Respondent when he first approached ACAS in May, he knew at that time that he had made what he considered to be a protected disclosure and also knew that he was being dismissed, albeit that the dismissal would take effect on 17 June. At paragraph 30 the Employment Judge noted that a complaint of detriment arising from a protected disclosure must be presented within three months of the act complained of unless it was not reasonably practicable for the complaint to be presented in time; where an act extends over a period of time, it means the last day of that period. At paragraph 31, the Employment Judge addressed the assertion by the Claimant that his suspension was a continuing act. He considered that to have some force. However, when the Claimant received his notice of dismissal dated 7 May 2015 the act complained of crystallised as being his dismissal. That was to take place on 17 June. The Employment Judge did not accept the contention that the suspension was a continuing act. Even if he were wrong about that, he did not accept that it extended beyond the date on which the Claimant received the letter of 7 May, which he assumed to be the next day, 8 May. Even if he was wrong about that, it could not extend beyond 17 June, the date when the dismissal took effect. Accordingly, at paragraph 32 the Employment Judge stated that an application to amend the claim was "well out of time". At paragraph 33 he stated:

"33. Nothing I have heard from the Claimant persuades me that it was not reasonably practicable for him to have made his complaint within the period of three months. …"

1. Finally, at paragraph 34 the Employment Judge concluded:

"34. Therefore, in answer to the question posed in issue 1, my answer must be "No, the Employment Tribunal should not allow the amendment sought." "

1. It is common ground before me that the Employment Tribunal enjoys a wide power to make case management Orders under Rule 29 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013. It is also common ground that that power is broad enough to include a power to permit amendments to a claim as was sought in the present case. As I understood it, it was also common ground before me that the relevant principles as to how Employment Tribunals should approach their task when considering such applications for amendment can be found in two authorities in particular. The first is the decision of this Appeal Tribunal in Selkent, in which the judgment was given by Mummery J (as he then was). Mummery J set out guidance for Employment Tribunals on the topic of procedure and practice for amendments from page 842F. He noted, of course, that there is a discretion whether or not to grant an application for amendment. At pages 843F-844C Mummery J set out guidance in the following way. At sub-paragraph (4) he stated:

"(4) Whenever the discretion to grant an amendment is invoked, 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." (Italics in original)

1. At sub-paragraph (5) Mummery J asked, "What are the relevant circumstances?" He answered his own question:

"It is impossible and undesirable to attempt to list them exhaustively, but the following are certainly relevant."

1. He then set out three factors in particular: first, the nature of the amendment; secondly, the applicability of time limits; and thirdly, the timing and manner of the application. It is unnecessary to lengthen this Judgment by setting out those passages in full, which are familiar to the parties. However, it is important to have regard to those passages in full as if they were incorporated in this Judgment.

1. The other authority to which both parties have drawn my attention is the decision of the Court of Appeal in [Abercrombie and Ors v Aga Rangemaster Ltd ]()[2014] ICR 209, in which the principal judgment was given by Underhill LJ. At paragraph 47 of his judgment Underhill LJ set out the material passages from the judgment in the Selkent case. In particular, he quoted in full sub-paragraphs (4) and (5) to which I have made reference. He then proceeded at paragraph 47 of his own judgment in the following way:

"47. …

If the final sentence of point (5)(a) is taken in isolation it could be understood as an indication that the fact that a pleading introduces "a new cause of action" would of itself weigh heavily against amendment. However it is clear from the passage as a whole that Mummery J was not advocating so formalistic an approach. He refers to "the … substitution of other labels for facts already pleaded" as an example of the kind of case where (other things being equal) amendment should readily be permitted - the contrast being with "the making of entirely new factual allegations which change the basis of the existing claim". (It is perhaps worth emphasising that head (5) of Mummery J's guidance in Selkent's case was not intended as prescribing some kind of a tick-box exercise. As he makes clear, it is simply a discussion of the kinds of factors which are likely to be relevant in striking the balance which he identifies under head (4).)"

1. At paragraph 48 of his judgment Underhill LJ continued as follows:

"48. Consistently with that way of putting it, the approach of both the Employment Appeal Tribunal and this court in considering applications to amend which arguably raise new causes of action has been to focus not on questions of formal classification but on the extent to which the new pleading is likely to involve substantially different areas of inquiry than the old: the greater the difference between the factual and legal issues raised by the new claim and by the old, the less likely it is that it will be permitted. …"

1. At paragraph 50 Underhill LJ said this:

"50. As to point (b), it is true that fresh proceedings under section 34 [ERA] would have been out of time. Mummery J says in his guidance in Selkent … that the fact that a fresh claim would have been out of time (as will generally be the case, given the short time limits applicable in employment tribunal proceedings) is a relevant factor in considering the exercise of the discretion whether to amend. That is no doubt right in principle. But its relevance depends on the circumstances. Where the new claim is wholly different from the claim originally pleaded the claimant should not, absent perhaps some very special circumstances, be permitted to circumvent the statutory time limits by introducing it by way of amendment. But where it is closely connected with the claim originally pleaded - and a fortiori in a re-labelling case - justice does not require the same approach: NB that in High Court proceedings amendments to introduce "new claims" out of time are permissible where "the new cause of action arises out of the same facts or substantially the same facts as are already in issue" (Limitation Act 1980, section 35(5)). In the circumstances of the present case the fact that the claim under section 34 would have been out of time if brought in fresh proceedings seems to me to be a factor of no real weight. There is, as I have already said, no question of any specific prejudice to the respondent from the claim being reformulated after the expiry of the time limit."

1. It is also important to note what Underhill LJ said at paragraph 52 by way of summary, although it is not necessary to lengthen this Judgment by setting it out in full now.

1. In the present appeal, after the case had been considered in the usual way on a sift on the papers, a Preliminary Hearing took place before HHJ Richardson. Only two grounds of appeal have been permitted to proceed to a Full Hearing. Those are set out in amended grounds of appeal as follows: (1) the Employment Tribunal erred in law in that it failed to apply the guidelines set out in Selkent's case when considering the application to amend, focusing only on the applicability of time limits; and (2) further, and in any event, the Employment Tribunal failed to appreciate or consider that there was a claim for unfair dismissal against the First Respondent that was brought in time.

1. At the hearing before me Mr Cheetham has fairly accepted that although technically there are two grounds of appeal, in substance they amount to the same thing. The substance of his submissions has focused, rightly in my view, on ground 1 in the amended grounds of appeal. Mr Cheetham also fairly accepts that if ground 1 were to fail, ground 2 could not succeed by itself. Accordingly, as was common ground at the hearing before me, I shall proceed by focusing on ground 1, as the parties have done.

1. As I have said, Mr Cheetham was not in a position to dispute that the correct principles, in particular in Selkent's case, were expressly drawn to Employment Judge Stewart's attention. However, his fundamental submission is that the Employment Judge then failed to apply those principles in the course of his reasoning, which I have cited earlier. In particular, Mr Cheetham submits that the Employment Judge failed to have regard to all the circumstances as the guidance in Selkent makes it clear should be done. Rather, submits Mr Cheetham, the Employment Judge focused exclusively on the issue of time limits. Furthermore, Mr Cheetham submits that the Employment Judge failed in particular to have regard to the nature of the amendment proposed by the Claimant or to consider whether and to what extent it was legally and factually similar to or different to what was already before the Tribunal in the claim form.

1. On behalf of the Respondent to this appeal Ms Grennan fairly accepts that the Judgment of Employment Judge Stewart could have been much clearer both in relation to what the applicable legal principles were and the way in which he then proceeded to apply them to the facts of the present case. She also fairly accepts that the Employment Judge did not deal squarely with the Selkent factors save for the time limit point. However, she submits that the Employment Judge, as is common ground, enjoyed a wide discretion in deciding whether or not to grant the application to amend and could scarcely have been unaware of the full range of factors before him.

1. She also submits that the Employment Judge was well entitled to decide that what was proposed was a substantial change to what had previously been pleaded. She submits that it would have raised both factual and legal issues that would require an extension to the kind of evidence that the Respondent would have to call in order to deal with the allegations against it. Just by way of example, she points out that potentially difficult questions would have arisen for the Employment Tribunal in addressing the question of whether what was done here was a qualifying disclosure within the meaning of the ERA. She submits that this amendment would have completely transformed the nature of the case that the Respondent had to address. She also points out that the hearing before the Employment Judge lasted for several hours and he had the advantage of hearing evidence including from the Claimant himself. She points out that there were submissions made on behalf of the First Respondent and the proposed Second Respondent. Finally, she points out that the Claimant's primary submission before the Employment Judge was that no amendment was needed at all. In all the circumstances, while conceding that the reasoning could have been better expressed, Ms Grennan submits that the decision that the Employment Judge reached was ultimately well within the realm of discretion that is left in such case management decisions to the Employment Tribunal.

1. I am unable to accept those submissions, eloquently though they have been made, by Ms Grennan. In my judgment, Mr Cheetham is correct in the essence of the complaint that he makes on this appeal. In my judgment, when one reads the Employment Judge's Judgment fairly and as a whole, the material part of the reasoning at paragraphs 27 to 34 in essence reads as if what the Employment Tribunal was seized of was an application to bring a claim for unfair dismissal on the grounds of protected disclosure out of time. That was, as the authorities to which I have made reference, a relevant factor, but it was by no means the only factor to be taken into account in the exercise of the discretion vested in the Employment Tribunal. I accept Mr Cheetham's submission that while the relevant principles in Selkent's case may have been drawn to the Employment Judge's attention he then failed, regrettably, to apply those principles when he considered the facts of the present case in the material part of his reasoning at paragraphs 27 to 34.

1. As was emphasised by Underhill LJ when approving the guidance given in Selkent's case, it is all the circumstances of the case that need to be taken into account, including, so far as relevant on the particular facts, the point about an additional claim being out of time, which may or may not have greater or lesser weight depending on all the circumstances. Furthermore, as Underhill LJ pointed out, the exercise that Selkent's guidance makes clear has to be undertaken is not one of ticking boxes; it requires an overall judgment to be formed having regard to all the circumstances of the case. Accordingly, I propose to allow this appeal by the Claimant.

1. On behalf of the Claimant Mr Cheetham submits that in the circumstances that have arisen this Appeal Tribunal is in a position to not only allow the appeal but to grant the underlying application to amend the claim. Conversely, on behalf of the Respondent Ms Grennan submits that this Appeal Tribunal should in the circumstances that have arisen simply remit the matter to the Employment Tribunal for reconsideration in accordance with the Judgment of this Appeal Tribunal. She submits that I have not had the advantage that the Employment Tribunal had of hearing evidence, including evidence from the Claimant or hearing the Respondent's submissions in full, for example, as to the potential prejudice that may be caused to it.

1. I accept those submissions on behalf of the Respondent by Ms Grennan. In the circumstances that have arisen I have come to the conclusion, in the exercise of my discretion, that I should remit the matter to the Employment Tribunal, which will be better placed, having regard to the entirety of the circumstances, to exercise the discretion vested in it. I have considered also the question of whether it should be remitted to the same Employment Judge or to a different one. Ms Grennan did not press strongly that it should be remitted to the same Employment Judge. She accepted fairly that it may well be appropriate to remit to a different Judge so that a fresh Judge could look at the matter in the round. She said that she would have no objection to that but that it is of course a matter for me. I have come to the conclusion that that would be the appropriate course in this particular case, without any disrespect to Employment Judge Stewart. This is not a case where, for example, there has been an extensive substantive hearing already. The case is at an early stage, this being an appeal from a preliminary decision. Furthermore, I take the view that in the circumstances of this case the Employment Judge failed simply to adopt the correct approach to the exercise of his discretion. Finally, I take the view that since matters of appearances are of importance in the present context justice would be served by remitting to a differently constituted Tribunal, although I stress that no suggestion has been raised of actual bias or anything of that sort.

1. For the reasons that I have given, this appeal will be allowed. The matter will be remitted to the Employment Tribunal to a different Judge to reconsider in accordance with the Judgment of this Appeal Tribunal.