The claimant claimed that she was an employee of the respondent and complained that the respondent had refused to keep her on after a certain date. She made a claim, in time, to the ET and then applied to amend it. The EJ refused the application to amend on the basis that it raised new causes of action which should be dealt with by issuing a new claim. The claimant appealed.

The EAT allowed the appeal. The appeal was one which was arguable and of substance and not clearly time barred. The EJ should have followed the procedure in Selkent v More [1996] ICR 836.

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Appeal No. UKEAT/0111/12/ZT

EMPLOYMENT APPEAL TRIBUNAL

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

At the Tribunal

On 12 July 2012

Before

HIS HONOUR JUDGE SHANKS

(SITTING ALONE)

MS N EDWARDS (APPELLANT)

LONDON BOROUGH OF SUTTON (RESPONDENT)

Transcript of Proceedings

JUDGMENT

For the Appellant
MR DAVID STEPHENSON (of Counsel)
Instructed by:
Lambeth Law Centre
Unit 4 Co-operative Centre
11 Mowll Street
London
SW9 6BG

For the Respondent
No appearance or representation by or on behalf of the Respondent

PRACTICE AND PROCEDURE – Amendment

An application to amend was made which the Employment Tribunal Judge had refused purely on the basis that it involved new claims; that was clearly wrong. She should have followed the procedure in Selkent v More [1996] ICR 836 at 842, this being an application which involved an amendment which was arguable and of substance and not clearly time barred.

1. This is an appeal by Ms Edwards, the Claimant, against the London Borough of Sutton, appealing against a decision notified by letter dated 4 November 2011 which rejected an application to amend her claim which had been made on 2 November 2011. The claim arises out of a refusal to keep on the Appellant, who up until 3 August 2011, was probably a contract worker although she also maintains she was an employee. So the application to amend was within the requisite three months of that event, if that is the event that is the relevant event for deciding when time expired.

1. The Tribunal Judge simply refused to allow the amendment and said that the Claimant should present a new claim to the Tribunal. On the appeal, further reasons were sought and the Employment Tribunal told the EAT that Employment Judge Martin refused the application to amend the claim on the basis that it raised new causes of action which should be dealt with by issuing a new claim. It was also stated that Employment Judge Martin made a note on the file showing she did consider the question of time limits in making her decision. Unfortunately the EAT are not provided with any further information as to what consideration Employment Judge Martin gave to the question of time limits and what conclusions, if any, she reached in relation to that.

1. I have been referred by Mr Stephenson, who is acting for the Appellant, to the case of Selkent Bus Company Limited v More [1996] ICR 836 at 842, a decision of Mummery LJ, who said this:

"Procedure and practice for amendments.

The rival submissions of the parties state the position at opposite extremes. Before we state our conclusions on this appeal, it may be helpful to summarise our understanding of the procedure and practice governing amendments in the industrial tribunal.

(1) The discretion of a tribunal to regulate its procedure includes discretion to grant leave for the amendment of the originating application and/or notice of appearance: reg. 13 see Cocking v Sandhurst Ltd [1974] ICR 650 at 656G-657D. That discretion is usually exercised on application to a chairman alone prior to the substantive hearing by the tribunal.

(2) There is no express obligation in the Industrial Tribunal Rules of Procedure requiring a tribunal (or the chairman of a tribunal) to seek or consider written or oral representations from each side before deciding whether to grant or refuse an application for leave to amend. It is, however, common ground that the discretion to grant leave is a judicial discretion to be exercised in a judicial manner, i.e. in a manner which satisfies the requirements of relevance, reason, justice and fairness inherent in all judicial discretions.

(3) Consistently with those principles, a chairman or a tribunal may exercise the discretion on an application for leave to amend in a number of ways:

**(a) It may be a proper exercise of discretion to refuse an application for leave to amend without seeking or considering representations from the other side. For example, it may be obvious on the face of the application and/or in the circumstances in which it is made that it is hopeless and should be refused. If the tribunal forms that view that is the end of the matter, subject to any appeal. On an appeal from such a refusal, the appellant would have a heavy burden to discharge. He would have to convince the appeal tribunal that the industrial tribunal had erred in legal principle in the exercise of the discretion, or had failed to take in account relevant considerations or had taken irrelevant factors into account, or that no reasonable tribunal, properly directing itself, could have refused the amendment. See *Adams v West Sussex County Council* [1990] IRLR 215.**

**(b) If, however, the amendment sought is arguable and is one of substance which the tribunal considers could reasonably be opposed by the other side, the tribunal may then ask the other party whether they consent to the amendment or whether they oppose it and, if they oppose it, to state the grounds of opposition. In those cases the tribunal would make a decision on the question of amendment after hearing both sides. The party disappointed with the result might then appeal to this tribunal on one or more of the limited grounds mentioned in (a) above.**

(c) In other cases an industrial tribunal may reasonably take the view that the proposed amendment is not sufficiently substantial or controversial to justify seeking representations from the other side and may order the amendment ex parte without doing so. If that course is adopted and the other side then objects, the industrial tribunal should consider those objections and decide whether to affirm, rescind or vary the order which has been made. The disappointed party may then appeal to this tribunal on one or more of the limited grounds mentioned in (b) above.

**(4) Whenever the discretion to grant an amendment is invoked, the tribunal should take into account *all* of the circumstances and should balance the injustice and hardship of allowing the amendment against the injustice and hardship of refusing it.**

(5) What are the relevant circumstances? It is impossible and undesirable to attempt to list them exhaustively, but the following are certainly relevant:

*

(a) The nature of the amendment*

Applications to amend are of many different kinds, ranging, on the one hand, from the correction of clerical and typing errors, the additions of factual details to existing allegations and the addition or substitution of other labels for facts already pleaded to, on the other hand, the making of entirely new factual allegations which change the basis of the existing claim. The tribunal have to decide whether the amendment sought is one of the minor matters or is a substantial alteration pleading a new cause of action.

*

(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, eg, in the case of unfair dismissal, s.67 of the 1978 Act.

*

(c) The timing and manner of the application*

An application should not be refused solely because there has been a delay in making it. There are no time limits laid down in the Rules for the making of amendments. The amendments may be made at any time - before, at, even after the hearing of the case. Delay in making the application is, however a discretionary factor. It is relevant to consider why the application was not made earlier and it is now being made: for example, the discovery of new facts or new information appearing from documents disclosed on discovery. Whenever taking any factors into account, the paramount considerations are the relative injustice and hardship involved in refusing or granting an amendment. Questions of delay, as a result of adjournments, and additional costs, particularly if they are unlikely to be recovered by the successful party, are relevant in reaching a decision."

1. It seems to me clear that this proposed amendment came within the second category identified by Mummery LJ, namely it was one that was arguable and of substance and it could reasonably be opposed on various grounds by the Respondent, London Borough of Sutton. Among those grounds are those I have explored this morning, namely that some of the claims may be hopeless but it needs a little further analysis before one can say for sure that they are.

1. In such a case Mummery LJ indicates that the proper procedure is to ask the other party - the Respondent - whether they consent to the amendment or whether they oppose it and if they oppose it to state the grounds of opposition and then to make a decision either taking into account the written submissions only or arranging a hearing for the purpose and having a proper argument about whether the amendment should be allowed.

1. So far as the appeal is concerned, the London Borough of Sutton have indicated they do not oppose it and are not represented today at this hearing. It seems to me clear on the material I have that the Tribunal Judge fell into error in failing to see that this was a proposed amendment that was substantial and arguable. Although there may be points that the London Borough of Sutton would want to make, it is by no means clear that the proposed new claims were out of time or hopeless, and the proper process was therefore to invite Sutton's representations and take it from there.

1. So I allow the appeal and I remit the question of amendment back to the Tribunal to consider in accordance with Mummery LJ's guidance, taking account of all the circumstances. I am told that there was a preliminary hearing arranged on the question of whether the Appellant was or was not an employee as opposed to a contract worker. That hearing was apparently put off in the light of this appeal. It seems to me it would be very sensible, if the amendment is to be resisted in whole or in part by the London Borough of Sutton, if the question - the preliminary issue - about employee status and the question of amendment and how much amendment should be allowed were resolved at one directions or case review hearing so that the case can then be put in order so that the substantive merits can be resolved at another hearing where everybody knows what claims are to be resolved.