1. It is the Claimant's case that the ET's determination was fundamentally undermined by its failure to find the date of the transfer. Unless and until there was a transfer the Claimant had no cause of action against the Second Respondent; it only became liable on the point of transfer. If the transfer had taken place after 4 July 2014, joining the Second Respondent would have been premature. Even if the claim against it was pursued out of time, the complexity of knowing the true position was (and note the differing views of the Respondents on this) was a relevant consideration, as EJ Heap had previously accepted.

1. Further, the ET reached its decision assuming a delay was of 57 days (from the EDT until the joinder application); that was wrong: it failed to take account of the statutory extension by reason of the ACAS EC procedure, which meant the delay was only 21 days after the time period expired. Although the Claimant had not made this point below, the ET had the EC certificate on file and should not have calculated the period of delay without reference to it. More generally, the ET failed to apply Selkent principles and/or reached a perverse conclusion: (a) because it incorrectly held there was no explanation for the delay when a proper reason - the lack of clarity as to whether/when a transfer had occurred - was advanced by the Claimant (an explanation accepted by EJ Heap); (b) because it gave undue prominence to the expiry of the primary limitation periods; (c) because it failed to recognise the delay was 21 days not 57; and (d) because it failed to appreciate the application to amend was made at an early stage.

1. Finally, the conclusion on hardship was perverse. The Second Respondent suffered no injustice or prejudice other than not being able to run a limitation defence. The Claimant had lost any right to bring a claim under Regulations 4 and 7 of TUPE. Hardship was all one way.

1. None of the points raised by the cross-appeal had been taken below, and the Second Respondent should not be permitted to run them now.

(1) The Procedural Points

1. Specifically, on the question of EC compliance, there was a particular difficulty in determining whether there had been compliance for the purposes of the original ET1; the EAT did not know what had happened below, albeit it could assume the ET must have taken the decision not to reject the claim. That decision was not the decision that was the subject of the current appeal and so could not constitute a valid cross-appeal (Weerasinghe). Any right of challenge by way of appeal would have arisen at an earlier stage and was out of time.

1. Even if the Second Respondent was entitled to raise the issue by way of cross-appeal, its argument seemed to be that the ET was unable to correct or overlook any error in naming or specifying the address of a Respondent on an EC certificate and that Rule 12(2A) of the ET Rules 2013 could only relate to the naming of the Respondent in the ET1. That could not be right, as it would mean there was no means of correcting errors in the EC certificate.

1. As for the issue of compliance with EC requirements in respect of the Second Respondent, assuming the original ET1 had been validly lodged and not rejected there was no requirement for the Claimant to comply with the EC procedure when applying to join the Second Respondent, thus no question arose as to whether the Second Respondent had been correctly identified on the EC certificate (although the Claimant contended she had done sufficient in her notification to ACAS on 1 September 2014 in any event). The question of amendment to add the claim against the Second Respondent was, by analogy with Science Warehouse, one for the ET's discretion; there being no difference between joining a Respondent and adding a new claim for these purposes. A prospective Claimant was someone who has yet to bring a claim; this Claimant had already done so. Whether she had previously named the proposed new Respondent in her EC notification might be relevant if the ET considered she was amending rather than commencing a new claim on tactical grounds, but it was hard where that went in terms of Selkent discretion. In any event, that was not this case.

(2) The TUPE Regulation 4(3) Point

1. This had not been put in issue below; the ET was entitled to assume liabilities transferred to the Second Respondent.

(3) The TUPE Regulation 15, Joint-and-Several-Liability point

1. It was accepted the ET erred in assuming liability for breach of any consultation requirements under TUPE had transferred entirely to the Second Respondent. Regulation 15(9) makes plain that the transferor and transferee are jointly and severally liable. The ET had not been obliged to deal with this point and it remained open to the Second Respondent to contend that liability under Regulation 15 lay with the First Respondent.

1. The ET had reached a permissible decision that the application to add claims against the Second Respondent should not be permitted. Lack of clarity as to the transfer date was irrelevant; the trigger for all but the Regulation 15 claim was the EDT. Although the ET failed to address the relevance of the transfer date for the Regulation 15 claim, this case had still been brought against the First Respondent in time; lack of clarity as to the date of the transfer could not explain why it had not also then been brought against the Second Respondent. More generally, the earlier view of EJ Heap was irrelevant; this ET was considering the issue afresh and concluded the Claimant could have joined the Second Respondent from the outset notwithstanding any lack of clarity as to the transfer date since she believed TUPE applied and knew the Second Respondent was to be the transferee: this was the whole thrust of the ET1, which was drafted by solicitors. The absence of explanation for failing to lodge any claim against the Second Respondent in time was a relevant consideration; the ET was entitled to conclude that no good explanation had been provided.

1. The ET was, further, correct in not having regard to an extended period by operation of ACAS EC as the Claimant had not validly complied with the EC process in respect of the Second Respondent. It correctly assumed a 57-day delay: the period the Second Respondent had calculated in its ET3 and to which the Claimant had not objected. The ET also correctly concluded there was no basis for an extension of the primary time limit. It did not give undue prominence to the point; it was a relevant factor to which it was entitled to have regard.

1. On hardship, the Claimant was in reality pursuing a perversity appeal. The ET correctly considered the relative hardships, including the extent to which the Claimant would be deprived of a remedy if the Second Respondent was not a party to the proceedings, but that was not the only issue. The ET was also bound to consider the hardship suffered by the Second Respondent, albeit that was limited to its being denied the right to rely on the time limit.

(1) The Procedural Points

1. Even if the appeal were allowed, the decision should be upheld because the Claimant had failed to comply with the EC procedure. Accepting these were not matters argued by either Respondent before the ET; as made clear in Cocking, if the original claim did not comply with the requirements of the ET Rules there would be no power to then permit an amendment. Under the current regime, that meant, where the proposal was to add a new Respondent, section 18A ETA had to be satisfied both in respect of the original claim and also in relation to the new Respondent. On the original claim there was an error on the EC certificate, in naming the First Respondent, which was incapable of rectification; Rule 12(2A) ET Rules 2013 could not assist the Claimant on this point; it did not permit the rectification of the EC certificate.

1. In any event, the importance of correctly naming the Respondent was such that an error in this respect was not minor. This was consistent with the requirement in the EC Rules for a separate EC certificate for each prospective Respondent. Requiring a Claimant to comply with EC when seeking to add further Respondents was consistent with the language of section 18A, and the EAT's Judgment in Science Warehouse did not rule otherwise. Even if not determinative of the application, the question of EC compliance was a relevant matter in the exercise of the ET's discretion to permit an amendment.

(2) The TUPE Regulation 4(3) Point

1. The ET had erred in holding that the Claimant's employment and pre-transfer liabilities transferred from the First to the Second Respondent. Such a conclusion would require the ET to first determine whether the Claimant had been employed by the First Respondent immediately before the relevant transfer (or would have been if not dismissed in circumstances described in Regulation 7(1) TUPE, as to which the Claimant had put no positive case). The ET made no finding as to date of transfer; so, the Claimant could not rely on that as supporting a case that she was employed immediately before the transfer.

(3) The TUPE Regulation 15 Joint-and-Several-Liability Point

1. The ET erred in concluding Regulation 15 liability had passed to the Second Respondent; any such liability would be held jointly and severally by the two Respondents.

1. Although the Second Respondent's cross-appeal is contingent upon the success of the appeal, in explaining my reasoning, it is convenient that I address it first.

(1) The Procedural Points

1. By its first ground of cross-appeal the Second Respondent contends the ET had no jurisdiction to consider the proposed amendment because the original claim did not comply with the mandatory requirements of EC procedure and/or it had not been validly complied with in respect of the Second Respondent, which meant that the amendment could not be permitted. Alternatively, these were potentially relevant factors, to which the ET failed to have regard. In turn, the Claimant questions whether this point is even open to the Second Respondent by way of cross-appeal: as the name suggests, a cross-appeal should challenge the same decision as that put in issue by the appeal (and see paragraph 15 Weerasinghe, supra).

1. On the original claim - brought against the First Respondent alone - the Second Respondent questions whether the EC procedure was validly complied with as the certificate did not give the correct name for the prospective Respondent. Accepting Rule 12(2A) ET Rules 2013 permits an Employment Judge to decide not to reject an ET claim, where there is a minor error in naming the Respondent on the EC certificate and ET1, this cannot help the Claimant if she failed to comply with the requirement to include the prospective Respondent's name and address for the purposes of Rule 2(2)(b) of the EC Rules. Ms Masters did not shrink from the implication of this argument: if a prospective Claimant makes an error in notifying ACAS of the prospective Respondent's name and or address - no matter how minor the error and regardless of any explanation (which might include entirely reasonable bewilderment as to the correct legal title or full address of the prospective Respondent in a TUPE context) - there is no means by which the ET can correct the error; the Claimant has failed to comply with EC requirements and any subsequent ET claim must be rejected, no matter when the point is raised.

1. If that is correct, EC risks giving rise to the kind of technical legal arguments that beset the abandoned statutory discipline and grievance pre-action requirements under the Employment Act 2002. It is therefore worth spending a little time considering whether the approach urged by the Second Respondent really has any merit before returning to the question whether it is a point that can even be taken on this appeal.

1. It is right that section 18A ETA requires that a prospective Claimant must provide prescribed information to ACAS before presenting an application to the ET. This will include the prospective Respondent's name and address (see Rule 2(2)(b) EC Rules; Rule 3(1)(b), if the information is given orally). The requirement is not for the precise or full legal title; it seems safe to assume (for example) that a trading name would be sufficient. The requirement is designed to ensure ACAS is provided with sufficient information to be able to make contact with the prospective Respondent if the Claimant agrees such an attempt to conciliate should be made (EC Rules, Rule 5(2)). I do not read it as setting any higher bar.

1. At times in oral argument, Ms Masters suggested this requirement is to protect the Respondent's right to engage in the EC process, although, when questioned, she accepted that would be putting it too high. I would go further and suggest that such a characterisation of the position would demonstrate a fundamental misunderstanding of the EC process. EC builds in an opportunity for pre-claim conciliation, but, other than the acknowledgement of that opportunity by means of the notification requirements, it does not oblige a prospective Claimant to engage with the process in any substantive sense, still less does it give any rights to the prospective Respondent (notably, any contact with the prospective Respondent is conditional upon the Claimant's consent; the Respondent has no "right" to EC as such). The minimal notification requirements, as I read them, are thus consistent with the general aims of EC. There is no suggestion that the process was intended to set any greater threshold for a Claimant before she can lodge ET proceedings. Indeed, the absence of the relevant information does not even result in an immediate rejection of the prospective Claimant's notification: ACAS may reject such a notification (EC Rules, Rule 2(3)), or it may contact the prospective Claimant to obtain any missing information. That would suggest that, if ACAS considers it has sufficient to permit it to make contact with the prospective Respondent (should the Claimant be amenable to that), it may equally choose not to reject the notification simply because there is a non-material error in providing the prospective Respondent's name and address.

1. In this case, ACAS did not reject the Claimant's first notification, and the ET apparently accepted the EC certificate as conclusive of her compliance with the requirements of section 18A; at least, it did not reject the ET1 under Rule 10(1)(c) ET Rules 2013. Should the Second Respondent now be permitted to go behind that? There is no suggestion that the Claimant was intending to mislead, and any error in identification of the First Respondent was plainly minor in nature; it certainly gave rise to no objection by the First Respondent itself. On the face of the EC certificate, the information provided to ACAS was sufficient for it to make contact with the First Respondent. In those circumstances, I consider that the ET was entitled to treat the EC certificate as conclusive in terms of the Claimant's compliance with her section 18A obligations. Had it thereby erred, the First Respondent might have objected when it was served with the ET1. It did not do so, apparently accepting the ET's decision not to reject the claim.

1. Even if that analysis is incorrect in any respect, the ET decision in issue would be the decision not to reject the claim. That is not the decision under appeal, and it is not open to the Second Respondent to seek to challenge it by way of this cross-appeal.

1. The next point arising from this ground of cross-appeal is whether the original claim failed to comply with the requirements of the ET Rules 2013 because the name of the Respondent given in the ET1 differed from that on the EC certificate. Again, however, if this point had any validity it should have been taken at an earlier stage. Rule 12(2A) ET Rules 2013 permits that an Employment Judge can decide that a claim should not be rejected where there is a difference in the details given for the Respondent in the ET1 as compared to the EC certificate where the Employment Judge considers the error is minor and it would not be in the interests of justice to reject the claim. This is not a point that was investigated before the ET (which further demonstrates why it is wrong for the Second Respondent to take it now), but I have no reason to think such a decision was not taken: there was a difference in the identification of the First Respondent, but it was plainly minor and there is no suggestion that the interests of justice would dictate that the claim should have been rejected. If the ET's decision not to reject the claim was to be challenged, it should have been done at a far earlier stage; again, this ground of cross-appeal does not relate to the decision under challenge on the appeal.

1. Even if unable to object to the validity of the initial claim the Second Respondent argues that the Claimant failed to comply with EC requirements in respect of the Second Respondent itself: although she did make a notification to ACAS on 1 September 2014, she did not then use the Second Respondent's correct title, referring instead to its address, Newholme Hospital. Does that matter? In my view, it does not. Primarily that is because I do not think that the Claimant was required to undertake EC in respect of her application to amend to include a claim against the Second Respondent. In respect of the relevant proceedings, the Claimant was no longer a "prospective Claimant". She had already presented her claim form; she was now asking the ET for leave to amend it. The question was thus entirely for the ET.

1. That approach has the attraction of being consistent with Rule 34 ET Rules 2013, which specifically addresses the addition or substitution of parties in ET proceedings without reference to any further EC requirements. It also gives effect to the overriding objective by allowing the ET to deal with the case before it in a proportionate manner, avoiding unnecessary formality, seeking flexibility in the proceedings and avoiding delay and expense.

1. Was this, in any event, a relevant matter to which the ET should have had regard in the exercise of its discretion in these circumstances? Before the ET the Second Respondent apparently did not consider it was: it was not a point taken below and I am not persuaded that the ET would have erred in overlooking a minor error in the identification of the prospective Second Respondent in an EC certificate that was (on my view) unnecessary in any event. Again, I take comfort from the fact that this would also be consistent with any sensible reading of Rule 34 ET Rules 2013 and is in keeping with the overriding objective.

1. Should I be wrong in my view as to the lack of any EC requirement upon a Claimant when seeking to join additional Respondents to existing ET proceedings, I am not persuaded it would make any difference. For the reasons I have already given, I do not consider that such an error in the naming of a prospective Respondent means ACAS has to reject the notification. It will be a matter for the EC officer, who, on my reading of Rule 2(3) EC Rules, is entitled to accept the notification notwithstanding some of the relevant information being missing. Similarly, the ET would not itself be bound to reject the claim against the Second Respondent because the name given on the amended claim form was not the same as that on the EC certificate and EJ Heap (who clarified the Second Respondent's name) plainly did not do so; a course to which the Second Respondent raised no objection when it entered its response.

1. For all those reasons, I reject the first ground of cross-appeal.

(2) The TUPE Regulation 4(3) Point

1. The Second Respondent argues that, in any event, the ET erred in concluding that the Claimant's employment transferred from the First to the Second Respondent. That could only be the case if the Claimant had been employed by the First Respondent immediately before the transfer, or would have been so employed unless dismissed in the circumstances described by Regulation 7(1) TUPE. For her part, the Claimant argues this was not an issue identified before the ET and the Second Respondent should not be permitted to raise it now.

1. The difficulty with the Claimant's objection, as I see it, is that the point arises because the ET failed to determine the date of the transfer (an issue expressly raised before it). That was crucial, because liability for the Claimant's employment would only transfer to the Second Respondent as transferee if the Claimant was employed by the First Respondent and assigned to the organised grouping of employees subject to the relevant transfer immediately before the transfer (or would have been so employed if not dismissed in the circumstances described by Regulation 7(1)); see Regulation 4(3) TUPE. That, as I understand the parties' respective cases before the ET, was at least partly why the date of any transfer had been put in issue. Specifically, as counsel then acting for the Second Respondent characterised the point in her written submissions before the ET (at paragraph 35):

"(d) If there was a transfer it did not take place until June/July or later in 2014 …

(e) The Claimant was not therefore employed by the Second [sic] Respondent immediately before the transfer (she resigned on 10th April 2014) and accordingly pursuant to Regulation 4(3) TUPE did not apply."

1. As this went to the question of relative hardship (the Claimant would not have suffered any particular hardship if it was found that liability for her employment had not transferred), it was plainly a relevant question for the ET to determine. The cross-appeal makes a valid point: without properly engaging with this question, the ET erred in assuming liability necessarily transferred to the Second Respondent. I allow the cross-appeal on this ground.

(3) The TUPE Regulation 15 Joint-and-Several-Liability Point

1. The Second Respondent further contends the ET erred in assuming liability for breach of any TUPE consultation requirements transferred entirely to it when Regulation 15(9) makes plain that transferor and transferee are jointly and severally liable. The Claimant agrees the ET erred in making this assumption but contends it is a point that could be taken later by the Second Respondent; it was unnecessary for the ET to determine it at this preliminary stage.

1. Again I disagree with the Claimant. The point went to relative hardship; the fact that the liability was shared between the two Respondents was a relevant matter for the ET when considering this application to amend. I also allow the cross-appeal on this ground.

1. Turning then to the appeal, as a preliminary observation, I note that the ET's Judgment does not make entirely clear how it was approaching its task: was it doing so as a reconsideration of EJ Heap's earlier Order, or did that Order (which joined the Second Respondent to the proceedings) stand but with an outstanding question arising as to whether the application to amend (to pursue the actual complaints against the Second Respondent) should be permitted? Whilst it would have been preferable if the ET's reasoning made clear how it had approached its task, it is common ground before me that no issue arises. Both parties agree the ET was properly engaged in an exercise of judicial discretion as to whether or not the claim should proceed against the Second Respondent. Whether under Rule 34 or Rule 29, the test is essentially the same, as are the limitations on any challenge by way of appeal. Further, albeit subject to the Second Respondent's EC point on the cross-appeal (as to which, see above), the parties agree that the ET's exercise of discretion was governed by the principles laid down in Selkent. Both equally agree that the relative injustice and hardship in refusing or granting an amendment must be paramount, although there are other relevant factors, namely the timing and manner of the application, the extent to which the amended claim is out of time and the explanation for the delay. Where the application is to add a claim otherwise out of time, they further concur that there is no rule of law that an ET cannot permit such an amendment; it is a relevant but not determinative manner (Selkent; Walsall).

1. Equally, both parties are in agreement that, in this case, the Claimant's failure to provide an explanation was only one factor and, by itself, could not be determinative. That said, it is the Claimant's case that the ET ought not to have found that she did fail to provide an explanation. Her explanation was that the position regarding the existence of any transfer was complicated and she should not be criticised for failing to include the Second Respondent from the outset.

1. Whilst I appreciate the difficulty facing the Claimant - she was not given a very clear picture of what had taken place and may not have known the precise date of any transfer - I do not think the ET can be criticised for failing to find that the complexity of the position was the explanation for her failure to include a claim against the Second Respondent from the outset. On the contrary, as the ET found:

"28. … the ET1 does everything to involve the Second Respondent as transferee save for actually adding them as a Respondent."

1. Given how the Claimant put her case in her ET1, that was a permissible conclusion. Although the Respondents may have found the point difficult to concede, the Claimant seems to have been clear that there was a TUPE transfer. Moreover, having seen the First Respondent's ET3 it is hard to see how that meant that the Claimant was then better informed as to the possibility of a TUPE transfer to the Second Respondent than she had been when originally submitting her ET1. Whatever the complexity of the position, the ET was entitled to find that this did not explain why the Claimant had not brought her claim against the Second Respondent in time, and I would not allow this appeal on the basis that the ET erred in this regard.

1. The Claimant next complains that the ET erred in determining that her delay was of 57 days. Relying on the extension to the time limit as a result of EC, the Claimant says it was significantly less than that. That, of course, would assume there was an obligation on the Claimant to engage in the EC process in respect of the Second Respondent. For the reasons I have already given in relation to the cross-appeal, I do not accept there was. That being so, I cannot see there would be any further extension of time. In any event, however, I cannot see where the point goes. The ET expressly found the delay (even if 57 days) was not significant. That was not the basis for its decision; the appeal in this respect is academic.

1. What the appeal really comes down to is the Claimant's contention that the ET failed to apply the Selkent principles and/or reached a perverse conclusion, in particular in giving undue prominence to the expiry of the primary limitation periods, failing to acknowledge that the application was made at an early stage, and failing to properly assess the balance of hardship.

1. It is fair to say that much of the focus of the ET's reasoning is on the Claimant's failure of explanation for not including the Second Respondent from the outset. For the reasons I have explained, I do not think it erred in concluding there was a lack of explanation. The difficulty is that the ET seems to elevate this to being determinative as to how its discretion should be exercised, and, as the parties before me agree, that would be putting the point too high.

1. It is, however, also fair to recognise that the ET's reasoning does not stop with the question of explanation. Thus, for example, having observed there was no explanation for the delay in seeking to join the Second Respondent, the ET went on to make clear that the delay itself gave rise to no particular hardship; it was not a significant factor (see paragraph 35). More specifically, the ET expressly went on to address the question of relative hardship. On its (albeit erroneous; see my consideration of this point on the cross-appeal above) approach to the question of the Second Respondent's potential liability under TUPE, by refusing to permit the amendment, the ET understood that it was shutting the Claimant out of otherwise valid claims relating to the termination of her employment. On the other hand, as Ms Masters accepted in oral argument, the only hardship identified in respect of the Second Respondent was that it would not be able to take a point on the limitation period. On that basis, and allowing that balancing of respective prejudice must be paramount, the ET's refusal to permit the amendment does seem perverse and thus invites further scrutiny.

1. On undertaking that more detailed analysis, the ET's error becomes apparent. The flaw in its reasoning is that it permits the time limit issue - the only matter the Second Respondent could point to as giving rise to any potential hardship - to outweigh all other factors, including the denial of any determination of the merits of the Claimant's claims. That approach privileges the issue of time above any other consideration; it makes it determinative. There may be cases where the time limit issue has greater weight because that delay otherwise causes prejudice to the Respondent. That, however, is not (on the ET's findings) this case. The erroneous approach adopted by the ET in this regard may also explain why its formal Judgment stated its conclusion as being to strike out the Claimant's claims against the Second Respondent (as having been brought out of time), rather than allowing the Second Respondent's application for a review of EJ Heap's Order and/or refusing the Claimant's application to amend.

1. In my judgment, the ET's conclusion on the application to amend thus cannot stand: it erroneously permitted the time limit issue to outweigh the injustice it had found would be suffered by the Claimant, who would be denied the ability to pursue otherwise legitimate (on the ET's findings) complaints against the Second Respondent. I therefore allow the appeal.

1. Having permitted the appeal to succeed, I return to the points raised by the cross-appeal. Given what I have found to be an erroneous assumption on the part of the ET in terms of the Second Respondent's potential liabilities under TUPE, that plainly raises relevant considerations going to the question of relative prejudice on the application to amend. Adopting a proportionate approach, I consider that the appropriate course at this stage is to permit the parties a further 21 days from the handing-down of this Judgment to lodge written representations on the question of disposal (if unable to agree) and I shall then determine that issue on the papers unless it appears necessary to list a further hearing on this point.