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Appeal No. UKEATS/0051/09/BI

EMPLOYMENT APPEAL TRIBUNAL

52 MELVILLE STREET, EDINBURGH, EH3 7HF

At the Tribunal

On 12 March 2010

Before

THE HONOURABLE LADY SMITH (SITTING ALONE)

NEWSQUEST (HERALD AND TIMES) LIMITED (APPELLANT)

KEEPING (RESPONDENT)

Transcript of Proceedings

JUDGMENT

For the Appellant
MR D FAIRLEY (Advocate)

Instructed by:
Messrs Levy & McCrae, Solicitors
266 St Vincent Street
Glasgow
G2 5RL

For the Respondent
MR P O'DONNELL (Solicitor)
Thompsons, Solicitors.
Berkeley House
285 Bath Street
Glasgow
G2 4HQ

Employment Judge allowed claimant to amend claim form to introduce fresh equal pay claim. Held that Employment Judge had erred in law in failing to appreciate that time bar was an issue in the sense that had the claim been presented independently of the ongoing proceedings, it would have been time barred. No explanation for the lateness having been tendered and no grievance in respect of the new claim having been intimated, the amendment clearly ought to have been refused and decision to that effect substituted.

INTRODUCTION

1. Ms Keeping was a Deputy Multi Media Editor. She worked for Newsquest (Herald and Times) Limited in that role from 1 September 2008 until 27 February 2009. She considers that, during that time, she was underpaid because one of the other Deputy Multi Media Editors was paid more than her. That editor was a man and her complaint is, accordingly, that she did not receive the equal pay that she is entitled to under the provisions of the Equal Pay Act 1970.

1. Ms Keeping presented a complaint to the Employment Tribunal on 4 February 2009 naming Newsquest as respondents and setting out the above complaint. She names Christian Cooksey as her comparator, he being the Deputy Multi Media Editor in receipt of a higher salary than hers. That was, accordingly, plainly a claim that she had received unequal pay for the period 1 September 2008 to 27 February 2009. Mr O'Donnell submitted, in the appeal hearing, that there was more to it than that. It also incorporated a case that the claimant suffered unequal pay prior thereto, a submission which I did not accept, as explained below. Since the argument was advanced I should, however, note that paragraph 6.2 of the ET1, in addition to specifying that the claimant asserted that she should have but had not received equal pay to Christian Cooksey when working as a Multimedia Editor, states that in June 2007 she was earning "around £20,000 per year less than other heads of department" (who are not specified as being men) and at the end of paragraph 6.2 adds: "The company has continually ignored my demands to be paid equally to my male peers". That sentence follows a reference to her equal pay claim in which she compares herself to Christian Cooksey.

1. I will continue to refer to parties as claimant and respondents.

1. At a Case Management Discussion on 1 May 2009, the claimant's solicitor, Mr O'Donnell, said that the claimant also sought to pursue an equal pay claim in respect of an earlier period when she was employed by the respondents as Acting Picture Editor. The note of that discussion records what Mr O'Donnell told the Employment Tribunal at paragraph 5:

" ..what is not clear from the ET1 is this; in addition to the above claim, she had a claim against the respondent for equal pay in respect of her earlier role as Acting Picture Editor when she was paid less than other editors."

1. The respondents made their position clear; the claimant was seeking to introduce a new cause of action, amendment was required and a time bar issue might arise. It is not surprising that, in the light of the expressed position of the claimant and the issue raised on behalf of the respondents that the Employment Judge also recorded, in the Case Management Discussion note:

"In these circumstances I concluded that the claimant was seeking to pursue a new claim, albeit some of the facts in support have already been alleged in the claim form."

1. The period when the claimant worked as Acting Picture Editor was from 4 June 2007 to 31 August 2008.

1. On 22 May 2009, the claimant's representative submitted an application to amend the claim. By agreement, the amendment application was dealt with on the basis of written submissions. The Respondents' solicitor objected to the amendment. It was, however, allowed.

1. This is, accordingly, an appeal at the instance of the respondents from the allowance of that amendment by the Employment Tribunal sitting at Glasgow, Employment Judge, Mrs J Cape.

THE AMENDMENT

1. **The amendment clearly proposed to add a fresh claim. It related to an earlier period (4 June 2007 to 31 August 2008) than did the ET1, a period when the claimant was carrying out a different job and during which time she asserts that she was doing like work with two named comparators, Douglas Saltieri and John Young, Picture Editors.

1. In the amendment , she also asserts that she was carrying out like work as compared with four men employed as News Editor, Sports Editor, Features Editor and Business Editor, namely Calum McDonald, Donald Cowey, Mark Smith, and Ian McConnell. The comparators were, she asserts, all paid a higher salary than her.

1. I am not persuaded that paragraph 6.1 of the ET1 is sufficient to cover an equal pay claim relating to the period prior to 1 September 2008. On any fair reading of it, it is plain that the only claim that is advanced is in respect of the period thereafter. It is disingenuous to suggest otherwise particularly when it was stated on behalf of the claimant at the Case Management Discussion that the ET1 did not set out a case in respect of the earlier period which was to be "in addition" to the claim that was stated.

THE CLAIMANT'S CASE FOR AMENDMENT

1. In his written submission to the Tribunal, the claimant's solicitor said that the Tribunal should take account of all the circumstances, balance the injustice and hardship of granting the amendment against that of refusing it, that there was no time limit for making an application to amend, that the claimant's change of job did not mean that the time limit provisions of the Equal Pay Act were triggered on 1 September, and that it was relevant to consider whether the complaint underlying the claim remained essentially the same. He referred to Selkent Bus Company, t/a Stagecoach Selkent v Moore [1996] IRLR 661, Cocking v Sandhurst (Stationers) Ltd [1974] ICR 650, Ketteman v Hansel Properties Ltd [1987]'. AC 189, 212, Highland Council v TGWU [2008] IRLR 272, British Newspaper Printing Corporation (North) Ltd v Kelly [1989] IRLR 222, Cannop & Others v Highland Council [2008] and Suffolk Mental Health Partnership NHS Trust & Others v Hurst & Others [2009] EWCA Civ 309, in support of his submissions.

1. As to facts, the claimant's solicitor submitted that the amendment did not set out a new cause of action; it provided only further particularisation, the claimant's grievance had set out essentially the same complaints, the case was at an early stage, no substantive hearings had been fixed or contemplated, he had given notice of the intention to rely on the earlier period as soon as he had received instructions to do so, there was no prejudice to the respondents and the amendment sought would not cause significant delay to the proceedings.

THE RESPONDENTS' OPPOSITION TO AMENDMENT

1. The respondents' solicitor submitted that the issue raised in the amendment was a new cause, no grievance had been raised concerning it, the case concerning the period prior to 1 September 2008 was a substantial alteration to the claimant's claim, any grievance concerning it would be out of time and any claim in respect of it presented in a fresh ET1 in at the time of the Tribunal's consideration of the application to amend, would have been time barred.

THE TRIBUNAL'S DECISION AND REASONING

1. The Employment Judge allowed the amendment. Her reasoning was as follows.

1. The Employment Judge notes that the time limit for presentation of a complaint to the Tribunal in respect of the claimant's position as Picture Editor, which continued until 31 August 2008, expired on 28 February 2009. However, she continues, at paragraph 19:

"The claim was presented on 4 February 2009. There is therefore no issue of the expiry of the time limit."

1. At paragraph 26, she returns to the matter and states:

"There is no issue of time as the claim was presented within six months of the change in role."

1. The Employment Judge refers to the narrative in the ET1 and to it referring to the claimant earning less than other heads of department and to the fact that the issue of amendment arose at a Case Management Discussion about 2½ months after presentation of the claim and comments that lapse of time was not significant. She adds that the respondents had not pointed to any hardship arising but if the amendment was not allowed the claimant would suffer the injustice and hardship of her claim not being tried. If it was allowed the respondents would potentially face liability for an additional claim. Specifically, at paragraph 22 she states:

"If the amendment is not allowed, then the claimant will suffer the injustice and hardship of her claim not being tried. If it is allowed, the respondent will potentially face liability for an additional claim."

1. The Employment Judge then concluded that the balance favoured the claimant. She added that the grievance issue matter was arguable and should be determined by a Tribunal. Thus she seemed to accept that as regards the equal pay claim for the period prior to 1 September 2008, there was a stateable argument that there had not been compliance with the requirements of s.32 of the Employment Act 2002.

RELEVANT LAW

1. The starting point is to recognise that the Tribunal had a discretion under rule 10(2)(q) of the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2004. Like all discretions, however, it required to be exercised judicially and that involves careful analysis, taking account of all relevant factors, not taking account of relevant factors and reaching a decision which, in the light of the whole facts and circumstances, was one which was open to a reasonable Employment Tribunal.

1. The matter of particular significance in this case was that of time limits. If the respondents are correct in their assertion that the amendment contained a fresh claim, it was one in which a previously unpleaded cause of action was sought to be added in existing proceedings outside the relevant time limit for it being advanced as a free standing claim. Under the provisions of the Equal Pay Act 1970, a claimant has six months from the end of the relevant employment to present her claim (section 2ZA(3)). The Employment Judge noted that the six month period for any equal pay claim by the claimant in respect of the period during which she was employed as Picture Desk Deputy began to run on 1 September 2008 and expired on 28 February 2009 and it does not appear to have been suggested to her on behalf of the claimant that she was wrong about that. Any attempt by the claimant after that date to present a fresh ET1 containing a claim in respect of the period she worked in that role would have been prima facie time barred.

1. The fact that to allow an amendment would, in effect, enable a claimant to elide a statutory time bar does not necessarily prevent an Employment Tribunal granting the application. It does not operate as an absolute bar. That that is so is clear from the authorities: see Cocking, British Newspaper Printing Corporation (North) Ltd v Kelly [1989] IRLR 222, Selkent, and Ali v Office of National Statistics [2005] IRLR 201. It is, however, as I said in the case of Argyll and Clyde Health Board v Foulds & Others UKEATS/0009/RN, a highly relevant factor. In the case of Cocking, it was identified as a factor which was "essential" for the Tribunal to consider (paragraph 5(b)). Underhill J referred to it as "potentially decisive" in TGWU v Safeway Stores Ltd UKEAT/0092/07/LA at paragraph 10. Furthermore, a Tribunal requires to consider why the application was not made at an earlier date, why it is being made at that point in time and what are the whole circumstances of the lateness (as referred to in Cocking at paragraph 5 and as discussed at paragraph 40 in Argyll and Clyde Health Board). The overall task of balancing the injustice and hardship that will result from granting the amendment against that which will result from refusing it, must , in the case of an amendment to introduce a fresh claim which would be time barred if presented independently , be carried out in that context.

1. It is trite that the question of whether a new cause of action contained in an application to amend would, if it were an independent claim, be time barred, falls to be determined by reference to the date when the application to amend is made not by reference to the date of presentation of the ET1 in the complaint which the claimant seeks to amend.

THE APPEAL

1. In a clear submission for the respondents, Mr Fairley moved that the appeal be allowed and that for the Tribunal's decision to allow the amendment there be substituted a decision that it be refused.

1. There was, in Mr Fairley's submission, no doubt that the amendment sought to introduce a new claim. The Tribunal had erred in failing to appreciate that if that claim, which was contained in paragraphs 1-8 and 14 of the application to amend (the paragraphs that related to the issue of whether the claimant received unequal pay in her role as Acting Picture Editor prior to 1 September 2008) had been brought as a fresh claim, independent of the present proceedings, it would have been time barred. That was a fundamental misdirection and meant that the Employment Judge had failed to have regard to a highly relevant matter. It meant that she failed to have regard to the relevant authorities as to the correct approach where time bar is an issue in the context of amendment. Mr Fairley referred to the above authorities in that regard.

1. It was also of relevance, he submitted, that not only would the fresh claim have been time barred but no grievance had been taken in respect of that complaint either prior to 1 September 2008 or since.

1. For the claimant, Mr O'Donnell, having wisely departed from a suggestion that the grounds of appeal amounted to a new case not previously foreshadowed submitted that the amendment did not seek to advance a new claim. Indeed, he read the Employment Judge's reasons as showing that she had been satisfied that that was so. Time bar did not, accordingly, arise. The Employment Judge, must, in the circumstances, have decided that it was not a new claim. In that event, there could be no relevant attack on her exercise of discretion. In any event, the fact that an amendment sought to introduce a claim that would, if independently presented, have been time barred, was not an absolute bar to allowing the amendment. He referred to Argyll and Clyde, UCATT and TGWU in that regard.

1. Mr O'Donnell submitted that if I was minded to allow the appeal there should be a remit. That would be for the purpose of allowing a fresh argument to be run to the effect that this was a "stable employment" case (see: s.2ZA(2) of the Equal Pay Act 1970). He accepted, however, that the onus had been on the claimant and that no such case had previously been advanced.

1. Mr O' Donnell did not offer any explanation for the timing of the amendment even on an esto basis that it was a late claim. He rested his submissions on the proposition that time bar was not an issue.

Discussion and Decision

1. I am readily persuaded that the Employment Judge fell into error.

1. Firstly, I cannot accept the claimant's submission that the Employment Judge is to be read as having determined that an equal pay claim relating to the claimant's employment as Acting Picture Editor prior to 1 September 2008 was covered by the ET1 presented on 4 February 2009. Had that been her position she could not have concluded, as in the Case Management Discussion note she did (at paragraph 10), that it was a "new claim". Nor would there have been any place for her comments in paragraph 22 of the reasons of 7 September that the claimant's claim would not be tried if the amendment was not allowed and that the respondents would, if the amendment was allowed "face an additional claim."

1. Nor, I would add, was it open to the Employment Judge so to conclude. As I have indicated, on any fair reading of the ET1, the complaint is confined to an equal pay claim relating only to the period when the claimant worked as a Multimedia Duty Editor as from 1 September 2008.

1. Secondly, I agree with Mr Fairley that the Employment Judge erroneously concluded that no time limit issue arose. She looked at the wrong date. The date she should have had in mind was 22 May 2010, being the date that the application to amend was made. She should then have compared that date to the date at which, as she rightly observed, the time bar would have expired in respect of an independent claim for the pre 1 September 2008 period, namely 28 February 2009. Had she done so she would have noticed that a period of almost three months had passed since the time bar. She would then have required to bear in mind the guidance as to the importance of having regard to time limits where allowing an amendment would enable a claimant to, in effect, elide a statutory time bar, as discussed in the above authorities. She required then to consider whether the claimant had provided an explanation for the lateness and consider its merit. Had she done so she would have observed, as is the case, that no explanation was provided at all in the written application to amend. It would also have been incumbent on her to take note of the fact that it was not suggested that this new matter had ever been the subject of a grievance.

1. In summary, had the Employment Judge correctly analysed matters and observed that a time bar issue did arise, she could only have refused the application to amend, in my view. The onus was on the claimant to satisfy her that it was appropriate to allow the amendment. It was significantly "out of time". No explanation was given as to why it was late. It was not said (nor, it seems, was it the case) that it had been the subject of any prior grievance. In these circumstances, the balance could only have favoured the respondents.

Disposal

1. In these circumstances I will pronounce an order upholding the appeal. I am not persuaded that there should be a remit. The only basis on which it was suggested that that would be an appropriate course of action was so as to allow the claimant to present a case of "stable employment". Such a case would be wholly new and would fly in the face of the Employment Judge's finding that the relevant date for time bar in respect of the disputed part of the amendment was 28 February 2009. No cross appeal was lodged. In these circumstances, remit is not the appropriate course of action. I will include in my order that the claimant's proposed amendment be refused except for paragraphs 9, 10, 11 12 and 13, all of which relate to the original claim.