FAIR EMPLOYMENT TRIBUNAL
CASE REFS: 48/13 FET
CLAIMANT: Daniel Brzezinski
RESPONDENTS: Alan, Lee and Dale Edgar, t/a Edgar Contracts
DECISION ON A PRE-HEARING REVIEW
The decision of the Tribunal is to grant leave to the respondents to amend the respondents' response form in accordance with the terms of the draft response attached to the respondents’ representative’s letter dated 23 August 2013, as amended and the response is now amended accordingly.
Constitution of Tribunal:
Chairman (sitting alone): Mr N Drennan QC
The claimant was represented by Mr J McDonald, Barrister-at-Law, instructed by Babington & Croasdaile, Solicitors.
The respondents were represented by Ms A Matthews, Barrister-at-Law, instructed by John J Roche, Solicitors.
1.1 It was agreed, at the outset of the hearing, having regard to the terms of Rule 16(2) of the Fair Employment Tribunal Rules of Procedure 2005, that the respondents’ application for leave to amend its response form should be determined by the Tribunal at a pre-hearing review, rather than at a Case Management Discussion. The representatives, having regard to the terms of the overriding objective, properly consented to short notice of the pre-hearing review.
1.2 By a decision on a review, the response of the respondents received by the Tribunal on 30 May 2013 was accepted by the Tribunal. However, by an application to the Tribunal, by letter dated 23 August 2013, the respondents’ representative then made an application to amend the said response, in accordance with a draft attached to the said letter. During the course of this hearing, this draft was further amended by the respondents’ representative, without objection. The claimant’s representative strongly objected to the application for leave to amend the said draft response. The claimant’s counsel helpfully provided to the Tribunal, in advance of the hearing, a skeleton argument in relation to his said objection to the application for leave to amend the response, which referred to the legal authorities, relevant to the said application.
1.3 The claimant’s representative properly did not focus his objection to that part of the application to amend the response which was to enable the respondents to now admit that the claimant was dismissed. The focus of his objection related to the proposed amendments to Paragraph 6.2 of the response form. It was recognised and accepted by the representatives that this Tribunal, at this hearing, was not determining the merits of the claimant’s claim or the respondents’ defence to the claimant’s claim. It was also accepted and recognised by the representatives that, even if the Tribunal was to grant leave to amend the response form, the claimant’s representative, in the course of the substantive hearing, would be able to raise issues, if appropriate, in relation to the terms of the amendments that have now been made to the said response form, the timing of same and/or issues relating to the credibility of the respondents, arising from the necessity for the respondents to make the said amendments.
2.1 As stated in Tolley’s Employment Handbook, 27th Edition, Paragraph 18.10:-
“It is open to any party to apply for permission to amend his or her claim or, as the case may be response [Tribunal’s emphasis]. Amendments may be necessary to correct or clarify details of the particulars already given, or to add information about a claim; sometimes amendments seek to go further, and to add to the claim, or put forward a new or different reason for resisting the claim. In practice it is not uncommon that ‘additional information’ provided by a party, voluntarily or in response to a request, raises new allegations or heads of claim : in such cases the principles applicable to amendments apply. The same principles apply, with any necessary modifications, to applications by respondents to amend their response, for instance by adding a new ground of resistance [Tribunal’s emphasis] to the claim or taking a point as to the Tribunal’s jurisdiction.
The leading case on the principles applicable is Selkent Bus Company Ltd v Moore  ICR 836. In this case Mummery J set out general principles both as to the procedure to be followed in relation to amendments and the criteria governing the Tribunal’s exercise of discretion whether to allow the amendment … In relation to discretion, Mummery J emphasised that the Tribunal : ‘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’
The relevant circumstances are likely at least to include the nature of the amendment, the applicability of time-limits (which is not applicable to the present proceedings) and the timing and manner of application. You should not generally be denied punitively where no real prejudice will be done by them being granted : Sefton NBC v Hincks  ICR 1357. When considering an amendment, a Tribunal should consider all the circumstances and carry out the balancing exercise identified in Selkent or risk making an error of law (see E G Thomas v Samurai Incentives and Promotions Ltd [UKEAT/0006/13].”
In the recent case of Glasgow City Council v Fox Cross & Others [UKEATS/0004/13], Langstaff P approved the earlier decision of the Employment Appeal Tribunal in Ladbrokes Racing Ltd v Lawrence Stephen Traynor [UKEATS/0067/06] where the Tribunal had stated:-
“20 When considering an application for leave to amend a claim, an Employment Tribunal requires to balance the injustice and hardship of allowing the amendment against the injustice and hardship of refusing. That involves it considering at least the nature and terms of the amendment proposed, the applicability of any time-limits and the timing and the manner of the application. The latter will involve it considering the reason why the application is made, at the stage that it is made and why it was not made earlier. It also requires to consider whether, if the amendment is allowed, delay will ensue and whether there are likely to be additional costs whether because of the delay or because of the extent to which the hearing will be lengthened if the new issues are to be raised, particularly if they are unlikely to be recovered by the party who incurs them. Delay may, of course, in an individual case, have put a respondent in a position where evidence relevant to the new issue is no longer available or is of a lesser quality than it would have been earlier. These principles are discussed in the well-known case of Selkent Bus Company Ltd P/A Stagecoach v Moore  ICR 661. Further, as was also observed by Mummery J, as he then was, in Selkent at Paragraph 26 :
‘ … an application for amendment made close to a hearing date usually calls for an explanation as to why it was being made then, and was not made earlier, particularly when the new facts alleged must have been within the knowledge of the applicant at the time he was dismissed and at the time when he presented his originating application.’
21 Even more it must be the case that an application to amend in the course of a hearing calls for a full explanation as to why it was not made earlier.”
2.2 Having considered the terms of the amendments sought in relation to Paragraph 6.2 of the response form, I am satisfied that the proposed amendments are not minor amendments as they deal, at least in greater detail and/or for the first time, with the reasons now relied upon by the respondents for the dismissal of the claimant. It is correct that there has been some earlier delay by the respondents in this matter. Indeed, as set out previously, the response received by the Tribunal on 30 May 2013, out of time, was only able to be accepted following a review. It is unfortunate that at the time of the said review of the response received by the Tribunal on 30 May 2013 that it was not drawn to the attention of the Tribunal that the said response, then accepted, required to be further amended. The respondents’ counsel informed me that it was only after the response had been accepted, on foot of the Tribunal’s decision, that she had had a real opportunity to consider all the papers in this matter and, in particular, to obtain all relevant instructions from her clients. I accept that at the time of the review hearing, the main focus by the respondents’ counsel was on the reasons for the failure by the respondents to present to the Tribunal the said response in time, which had been drafted some time earlier by the respondents’ solicitor. As set out in the said decision on the review accepting the said response, a Discrimination Case Management Discussion was then arranged by the Tribunal in accordance with its normal practice. A letter informing the parties of the Discrimination Case Management Discussion was issued to the parties on 10 September 2013. Prior to that date, by letter dated 23 August 2013, the respondents’ representative had made the application to amend the said response. This was some two days after the said decision formally accepting the response had been issued to the parties. Thus, I accept that this application has been made by the respondents’ representative at the earliest opportunity.
2.3 I am satisfied that the issues raised in the proposed amendments to the response will be required to be considered and determined by the Tribunal at the substantive hearing. Indeed, not to have sought to amend the response until the substantive hearing would inevitably have led to an adjournment and additional costs and expenses to the parties. Despite the submissions of the claimant’s counsel, I could find no real prejudice to the claimant by granting leave to the respondents to amend the response as set out above. Balancing the injustice and hardship of allowing the amendment against the injustice and hardship of refusing it, I had no doubt that the greater injustice and hardship would be to refuse the said application to amend the response.
3.1 In the circumstances, therefore, I decided that the respondents’ application for leave to amend the response in the terms set out above, should be granted and the response is amended accordingly.
Date and place of hearing: 2 October 2013, Belfast
Date decision recorded in register and issued to parties: