United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	Mr Paul Rose (One of Her Majesty's Counsel) Instructed by: Messrs Thompsons Solicitors 18 Lawford Street Bristol BS2 0DZ
For the Respondent	Mr Andrew Stafford (One of Her Majesty's Counsel) Instructed by: Messrs Gordons Solicitors Riverside West Whitehall Road Leeds LS1 4AW


 


SUMMARY

Practice and Procedure – Amendment

Safeway closed a depot, leading to a large number of redundancies. The Union alleged that consultation was inadequate. Proceedings were initially commenced claiming only for unfair dismissal. The Union subsequently applied to include claims under s. 189 of the 1992 Act and reg. 11 of TUPE. The Tribunal refused the application because the time limits for such claims had passed, apparently on the basis that in such a case it had no jurisdiction to permit amendment unless it could be characterised as a "mere re-labelling" of facts already pleaded. Appeal allowed on the basis that the Tribunal had a discretion to allow the amendment notwithstanding that the claims were out of time and that in the particular circumstances of the case it was proper to allow the amendment. Discussion of the effect of British Newspaper Printing Corporation (North) Ltd v Kelly [1989] IRLR 222, Selkent Bus Co Ltd v Moore [1996] ICR 836 and Harvey v Port of London (Tilbury) Ltd [1999] ICR 1030.

Circumstances considered in which the EAT can decide an interlocutory issue under s. 35 of Employment Tribunals Act 1996 without remission.
 


THE HONOURABLE MR JUSTICE UNDERHILL

1. These proceedings arise out of the decision of Safeway Stores Ltd. ("Safeway"), which is the Respondent to this appeal, to close its depot at Cribbs Causeway in Bristol following its acquisition by Wm. Morrison Supermarkets plc ("Morrisons"). The closure led to over 600 redundancies. The Transport & General Workers Union ("the Union") wishes to advance claims under s. 189 of the Trade Union and Labour Relations (Consolidation) Act 1992 and reg. 11 of the Transfer of Undertakings (Protection of Employment) Regulations 1981 ("TUPE") alleging that Safeway failed to comply with its consultation obligations under s. 188 of the 1992 Act and reg. 10 of TUPE respectively (to which I will refer compendiously as "the statutory consultation obligations"). But no such claim was included in the original claim form, and by a decision sent to the parties on 5 December 2006, a Chairman sitting in the Bristol Employment Tribunal refused an application by the Union for permission to amend in order to introduce such a claim. The Union appeals. It has been represented before me by Mr. Paul Rose Q.C. Safeway has been represented by Mr. Andrew Stafford Q.C.
2. The way in which the claim was originally presented can be summarised as follows:

(1) The claim form, in standard ET1 format, was signed on 13 April 2006 and presented on that date or shortly afterwards. In section 1 the claimant is identified as the Union. In section 2 three respondents are named - Safeway, Morrisons and a company called Exel Logistics Ltd. (The claims against Exel have since been withdrawn.)

(2) In the part of the ET1 intended to set out the nature of the claim, sections 5.1 ("unfair dismissal or constructive dismissal"), 8 ("other payments you are owed" – the "box" which is ticked being "other unpaid amounts") and 9 ("other complaints") are completed by the typing in of the words "see attached".

(3) The attachment consists of a nine-page pleading headed "boxes 5.1, 8 & 9" and is an apparently full and thorough statement of the case being brought.

(4) Para. 1 of the pleading reads as follows:

"Claims are brought by former employees of the First Respondent ("Safeway") or Second Respondent ("Morrisons") following their dismissal for reason of redundancy. The Claimants were each members of the TGWU and were employed within either the warehouse or transport departments of the Safeway Depot at Cribbs Causeway, Bristol. The names of all those Claimants appear in Schedule "A" attached to this application."

I have not seen Schedule A but I am told that it contains the names of over 600 individual employees. It does not identify the Union as a claimant.

(5) Para. 2 of the pleading reads as follows:

"The following claims are brought by each of the Claimants against Safeway and/or Morrisons:-

2.1 Unfair Dismissal

2.2 Wrongful Dismissal/Breach of contract/Unlawful deduction of wages."

There is no reference to any claim for breach of the statutory consultation obligations.

(6) The remainder of the pleading goes on to plead the facts relating to the closure (at paras. 3-14) and then to make submissions in relation to the unfairness of the dismissal (paras. 15-22) and the claims for "wrongful dismissal/breach of contract/unlawful deduction of wages" (paras. 23-28). There is (at paras. 16-19) an allegation of failure "to consult with the Claimants, through their trade union", but it comes under the heading of "unfair dismissal" and is not expressed to be an allegation of breach of the statutory obligations owed to the trade union; it is, rather, one of the particulars of breach of the procedural requirements of a fair dismissal for redundancy as considered in a long line of cases starting with Williams v Compair Maxam Ltd. [1982] ICR 156. There is, it is true, an allegation, at para. 18.3, that "there was no day to day consultation within the 90 day consultation period": what exactly that means is not clear, but it is clear both from its own terms and from the context that it cannot fairly be construed as an allegation of a breach of the statutory consultation obligations.

3. When the claim first came before a Chairman for a case management discussion on 28 June 2006 he asked why the Union was named on the ET1 as a party to the claim (see para. 2 (1) above). The query was plainly justified, since all the pleaded claims were vested in the individual employees named on the schedule and could not be brought by a trade union on their behalf. He was apparently told that it was because the Union was making a claim under s. 189. Although I have no formal record of the Chairman's reasons on that occasion, it is plain that he took the view that no such claim was pleaded, and he directed that an amended pleading be lodged setting out any claims advanced by the Union in its own right. An amended pleading was duly lodged incorporating a new para. 19.4, which pleads – claiming, somewhat cheekily in the circumstances, that it does so "for the avoidance of doubt" - that "the TGWU and/or the Claimants" contend that the failures of consultation already pleaded constitute breaches of the statutory consultation obligations. Safeway objected to the amendment, and the objection was in due course upheld (by a different Chairman) following a hearing on 20 November 2006 - that being the decision now under appeal.
4. The starting-point for an analysis of the issues raised by this appeal is that both Chairmen were in my view clearly right to take the view that no claim for breach of the statutory consultation obligations was included in the original claim. Mr. Rose submitted – though he did not press the submission very hard – that such a claim could be inferred from the facts that the Union was named as the claimant in the body of the ET1 (which would only make sense if breach of the statutory consultation obligations was alleged) and that section 9 of the ET1 was one of the sections completed with a cross-reference to the pleading (which suggests some further head of claim over and above those actually pleaded, which otherwise belong in sections 5 and 8) and from the reference to "the 90-day consultation period" in para. 18.3 of the pleading. Those points may indeed be evidence that the Union or those advising it intended to include a s. 189 claim and/or a reg. 11 claim – it would indeed be very odd if they had not – but they are in my judgment quite inadequate by themselves to constitute the raising of such a claim; and I certainly do not see how they could be said to do so where a detailed pleading is supplied which is explicitly said to set out the claims being made and which fails to allege any breach of the statutory consultation obligations.
5. It follows that this case is one in which a previously unpleaded "cause of action" is sought to be added in existing proceedings outside the time limit in which it could have been advanced as a free-standing claim. S. 189 (5), adopting the familiar formulation from the unfair dismissal legislation, provides that

"An employment tribunal shall not consider a complaint under this section unless it is presented to the tribunal—

(a)     before the date on which the last of the dismissals to which the complaint relates takes effect, or

(b)     during the period of three months beginning with that date, or

(c)     where the tribunal is satisfied that it was not reasonably practicable for the complaint to be presented during the period of three months, within such further period as it considers reasonable."

The time limit for complaints of breach of the obligations under reg. 10 of TUPE is identically expressed, save that the three months are to run from the date on which the relevant transfer was completed: see reg. 11 (8). Those "primary" limits had expired, in relation to both claims, prior to the lodging of the amended pleading relied on in this case. It is not contended that the Union can rely on the "not reasonably practicable" extension.

6. Apart from authority, it might have been thought that there was a strong case for disallowing as a matter of law any amendment which would allow a claimant to bring a fresh claim outside the time within which he could have brought it in free-standing proceedings. Although rule 10 (2) (q) of the Employment Tribunal Rules gives tribunals a general discretion to allow the amendment of a claim form, it might be thought to be wrong in principle for that discretion to be used so as to allow a claimant to – in effect – get round the statutory limitation period. It is true that in the High Court amendment to introduce a new claim for which the statutory period of limitation has expired is permissible where the claim in question "arises out of the same facts or substantially the same facts" as a claim already pleaded – see CPR 17.4 (2); but that depends on express statutory provision (see s. 35 (2) of the Limitation Act 1980) of a kind not replicated in the legislation applying to Employment Tribunal proceedings. All, or almost all, of the relevant statutory provisions (or regulations) conferring the various jurisdictions enjoyed by the Employment Tribunal require that claims be presented within the specified time limits (subject to the applicable power of extension), and those limits have always been regarded as going to jurisdiction: as Lindsay P. pointed out in Harvey v Port of London (Tilbury) Ltd [1999] ICR 1030 (which I discuss more fully in para. 12 below), it is hard to see why claims presented by way of amendment are not as much subject to that restriction as claims presented by way of originating process.
7. But, however attractive that line of argument may be to a purist, the cases appear to be against it. The position on the authorities is that an Employment Tribunal has a discretion in any case to allow an amendment which introduces a new claim out of time. Mr. Stafford in his oral submissions before me accepted that, and accordingly I need not analyse the authorities in exhaustive detail. However, it was not his position before the Tribunal, and it is Mr. Rose's case that the Chairman was, wrongly, persuaded to treat the fact that the claim was out of time as an absolute bar. I therefore still need to say something about the relevant case-law.
8. The relevant line of authority starts with the decision of the National Industrial Relations Court in Cocking v Sandhurst (Stationers) Ltd [1974] ICR 650. That was concerned with a case of misnomer, but Sir John Donaldson in the judgment of the Court enunciated some general propositions – set out as seven steps - about the correct approach in cases of amendments "changing the basis of the claim or … adding or substituting respondents". He said, as "step (7)", that a tribunal in considering whether to allow such an amendment "… should … have regard to all the circumstances of the case … [and] … consider any injustice or hardship which may be caused to any of the parties … if the proposed amendment were allowed, or as the case may be, refused" (p. 657C). Although the application in Cocking was out of time, the judgment does not explicitly consider that aspect. However, in the subsequent cases to which I refer below the very broad test propounded in it – "the Cocking test" - has been expressly held to be applicable in out-of-time cases.
9. The question of amendment to include out-of-time claims was first expressly addressed in British Newspaper Printing Corporation (North) Ltd v Kelly [1989] IRLR 222. In that case a group of employees had brought proceedings which appeared (though there was some ambiguity) to be intended as claims for redundancy payments. More than three months after the effective date of termination they sought to amend to plead alternative claims for unfair dismissal. The Industrial Tribunal refused permission because the time limit for bringing fresh unfair dismissal claims had passed. The Court of Appeal, agreeing with the Employment Appeal Tribunal, held that the Tribunal had given undue emphasis to the expiry of the time limits. Although the reasoning in the judgment of Lord Donaldson MR is fairly shortly stated, the Court clearly endorsed Cocking – described in para. 9 as "the leading case on this subject" - as showing the right approach in such a case: see para. 12, where the Cocking test is re-stated in terms of the balance of hardship or injustice that would be suffered by either party if the amendment were or were not allowed. The argument that the primary statutory time limits should be treated as decisive is rejected in para. 10, where Lord Donaldson observes:

"Now, it is quite true to say that Parliament has laid down rules covering the lodging of applications to Industrial Tribunals but it has not laid down rules for time limits in relation to amending applications which have already been made."

It is important to note that counsel for the employers submitted that the addition of a claim for unfair dismissal went beyond "a purely labelling or re-labelling exercise" (see para. 8); and one can indeed see that although the factual background to the two claims was likely to be the same, the detailed issues that would call for investigation as between a claim for a redundancy payment and an unfair dismissal claim would be distinct. Lord Donaldson acknowledged that that might be so (loc. cit.), but he plainly did not regard it as fatal to the application.

10. The issue was revisited in Selkent Bus Co Ltd v Moore [1996] ICR 836, where an employee who had made a claim for "ordinary" unfair dismissal sought leave, more than three months after the effective date of termination, to amend his originating application to include a claim for "automatic" unfair dismissal on the basis that he had been dismissed because of his membership of, or activities on behalf of, a trade union. The Employment Tribunal granted leave. The Employment Appeal Tribunal allowed an appeal. Mummery P. gave some general guidance as to how applications for leave to amend, including applications for amendments raising a new cause of action, should be approached. Somewhat surprisingly, the Appeal Tribunal does not appear to have been referred to Kelly. Point (4) in Mummery P.'s guidance (p. 843F) was put as follows:

"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."

That is, of course, the Cocking test. He continued:

"(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 addition 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, e.g., in the case of unfair dismissal, section 67 of the Employment Protection (Consolidation) Act 1978 [now s. 111 (2) of the Employment Rights Act 1996].

(c) The timing and manner of the application …".

Point (b) might, if taken out of context, be read as implying that if the fresh claim is out of time, and time does not fall to be extended, the application must necessarily be refused. But that was clearly not what Mummery P. meant. As Waller LJ observed in Ali v. Office of National Statistics [2005] IRLR 201, at para. 3, point (b) is presented only as a circumstance relevant to the exercise of the discretion; and the reasoning of the Appeal Tribunal on the actual facts of the case clearly turns on the exercise of a "Cocking discretion" rather than the application of an absolute rule (see in particular points (3) and (4) at pp. 844-5). (This was indeed also how the case had been put by the employers (see p. 841 B-E).) Thus the reason why it is "essential" that a tribunal consider whether the fresh claim in question is in time is simply that that is a factor – albeit an important and potentially decisive one - in the exercise of the discretion.

11. The approach set out in Kelly and Selkent has been followed in several further cases in this Tribunal. I have been referred to Fairhurst v Northumberland County Council [1997] UKEAT 1333 (Judge Clark), Swiss Re Life and Health Ltd. v. Kay UKEAT/0680/01 (Mr. Recorder Langstaff QC) and Lehman Brothers Ltd. v. Smith UKEAT/0486/05 (Judge Clark). I have no doubt that it represents the orthodox position on the authorities. I have also been referred to two decisions of the Court of Appeal – Housing Corporation v. Bryant [1999] ICR 123 and Ali (see above). In neither of these was the correct approach in a case like the present directly in issue, but in the former Kelly was cited without disapproval, and in the latter – Ali – Waller LJ, said (at para. 40):

"There are, as Mummery J said in Selkent, many different circumstances in which applications for leave to amend are made. One can conceive of circumstances in which, although no new claim is being brought, it would, in the circumstances, be contrary to the interests of justice to allow an amendment because the delay in asserting facts which have been known for many months makes it unjust to do so. There will further be circumstances in which, although a new claim is technically being brought, it is so closely related to the claim already the subject of the originating application, that justice requires the amendment to be allowed, even though it is technically out of time [emphasis supplied]."

12. There is one significant exception to this consistent line of authority. In Harvey v. Port of London (Tilbury) Ltd (above) an employee who had brought proceedings for unfair dismissal sought leave to amend his originating application to add a claim that his dismissal had been on the grounds of a disability and accordingly constituted discrimination contrary to the Disability Discrimination Act 1995. The Employment Tribunal refused leave, at least in part on the basis that the employee was out of time to bring a free-standing claim under the 1995 Act. The Employment Appeal Tribunal dismissed the appeal. Lindsay P. held that the fact that the claim was out of time was not simply an important factor in the exercise of the Tribunal's discretion but was an absolute bar to the claim being added by way of amendment. In essence he took the purist approach adumbrated in para. 6 above. He referred to para. 3 (1) of Schedule 3 to the 1995 Act, which provides that an industrial tribunal shall not consider a complaint of disability discrimination unless it is presented before the end of the period of three months beginning when the act complained of was done (subject to a "just and equitable" exception); and he held that that bar must apply equally whether the claim is presented by way of originating application or by way of amendment. He acknowledged that this conclusion appeared inconsistent with the decision of the Court of Appeal in Kelly. He was critical of the reasoning in Kelly^[1]; and he felt able to distinguish it, principally – as I read it – on the basis that the relevant provisions of the 1995 Act (identified above) were in different terms from those of the unfair dismissal legislation: see at pp. 1039H-1040A. (He also referred to the fact that Cocking had been concerned with misnomer rather than "the introduction of a new form of claim", but that would not be a ground for distinguishing Kelly.) I am bound to say that I am very doubtful whether it is possible to distinguish Kelly on that basis, because I can see no material difference between the wording of the time bar provisions in the relevant Acts. But even if it is possible to do so, no such argument is available in the present case since the wording of s. 189 (5) of the 1992 Act and reg. 11 (8) of TUPE on the one hand and of s. 111 (2) of the 1996 Act on the other hand is substantially identical. Mr. Stafford did not seek to rely on Harvey.
13. I should also refer to the discussion of this issue in Section T of Harvey on Industrial Relations and Employment Law, since this was relied on by the Chairman in his Judgment. At paras. 311.03-312.06, the editors adopt a threefold categorisation of proposed amendments which "alter existing claims or add new claims" –

"(i) amendments which are merely designed to alter the basis of an existing claim, but without purporting to raise a new distinct head of complaint;

(ii) amendments which add or substitute a new cause of action but one which is linked to, or arises out of the same facts as, the original claim; and

(iii) amendments which add or substitute a wholly new claim or cause of action which is not connected to the original claim at all".

The discussion which follows points out that there is no difficulty about time limits as regards categories (i) and (ii), since (i) does not involve any new cause of action and (ii), while it may formally involve a new claim, is in truth no more than "putting a new 'label' on facts already pleaded" (see para. 312.01). Cases in category (iii) are discussed at para. 312.04, where the editors say:

"In that situation, the tribunal must consider whether the new claim is in time and, if it is not, whether time should be extended to permit it to be made (Selkent Bus Co Ltd v Moore [1996] ICR 836 at 843H)."

The paragraph goes on to discuss precisely how the line between a "wholly new claim" and a mere "change of label" is to be drawn. Although not explicit, the implication of the passage as a whole is that if the out-of-time claim cannot be categorised as a mere re-labelling of facts already pleaded then as a matter of law the amendment cannot be permitted. If that is indeed its effect, I agree with Mr. Rose that it goes too far. I do not wish to cast any doubt on the proposition that amendments that involve mere re-labelling of facts already fully pleaded will in most circumstances be very readily permitted: there is plenty of authority to this effect, fully cited in Harvey. But, as I have sought to show, Kelly and Selkent are inconsistent with the proposition that in all cases that cannot be described as "re-labelling" an out-of-time amendment must automatically be refused: even in such cases the Tribunal retains a discretion. No doubt 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, but that will be a discretionary consideration and not a rule of law.

14. The Chairman's self-direction on the law is to be found at paras. 4 and 5 of her Judgment. She does not explicitly state the approach which she proposes to follow. However, she refers generally to the decisions in Selkent and Ali and to "the relevant paragraphs of Harvey" (being a reference, of course, to Harvey the book not Harvey the case). She then proceeds to set out the passages from the judgment of Mummery P. in Selkent which state the Cocking test and which require the tribunal to consider "the nature of the amendment" – i.e. points (4) and (5) (a) (see para. 10 above). Somewhat oddly, however, she does not set out the immediately following passage from Selkent – point (5) (b) - dealing with "the applicability of time limits". Instead, she says simply:

"It is only when the tribunal comes to a conclusion that a new cause [of] action is being pleaded, that the applicability of time limits kicks in."

She then proceeds at paras. 6 to 9 to consider the precise nature of the original pleading, demonstrating – what is in truth not in doubt – that there is no claim for breach of the statutory consultation obligations. She concludes:

"Therefore, taking all the above into account I find that the application to amend the claim to add a protective award amounts to a substantial alteration, pleading a new cause of action. It is more than an addition or substitution of another label for facts already pleaded."

On that basis she concludes that the application must be dismissed.

15. That reasoning is in my judgment deficient. There is no attempt to apply the Cocking test, as endorsed in Kelly (to which, indeed, there is no reference). Specifically, there is no review of all the circumstances including the relative balance of injustice. I think it likely that the Chairman in fact regarded the only issue requiring to be decided as being whether the claim for breach of the statutory consultation obligations was more than a "re-labelling" of a claim based on facts already pleaded. That was the approach being urged on her by Mr. Stafford, whose submissions focused squarely on the issue of "jurisdiction"; and it is likely to have appeared to be supported by the passage in Harvey to which she referred.
16. Since I have reached the conclusion that the Tribunal made an error of law it is necessary for me to consider whether I should simply remit the issue for determination applying the correct test or whether I should substitute my own decision, using the power conferred by s. 35 (1) (a) of the Employment Tribunals Act 1996.  Mr. Stafford invited me to take the former course and Mr. Rose the latter.  I see no need to remit the issue.  There is no need for any further factual investigation.  This a purely interlocutory decision, albeit an important one.  The relevant factors are clear and I am as well placed as the Chairman to make a decision.  I appreciate that there are several decisions, both of this Tribunal and of the Court of Appeal (see most recently Bennett v. London Borough of Southwark [2002] ICR 881, per Sedley LJ at paras. 30-33 (pp. 892-3); also Marks & Spencer plc v. Martins [1998] ICR 1005, per Mummery LJ at p. 1021 D-F), to the effect that even in such a case the only proper course for this Tribunal is to remit the decision to the Employment Tribunal unless the case is one in which there was only decision open to the Tribunal in law.  But I can see no such restriction in the express terms of s. 35 of the 1996 Act, and the authorities generally (though subject to the possible exception referred to below) appear to treat it as a rule of practice, based on the desirability of the Tribunal deciding all factual matters as an "industrial jury", rather than a matter of jurisdiction.  If that is right, practice can change.  The relevant decisions all pre-date the coming into force (with effect from 1 October 2004) of rule 2A of the Employment Appeal Tribunal Rules 1993, which introduces the overriding objective.  There will be many cases, of which the present case is a good example, where the operation of a rule of automatic remission will not conduce to a case being dealt with expeditiously and fairly – rather the reverse - and will lead to costs being unnecessarily increased, thus conflicting with the requirements of both sub-para. (2) (c) and sub-para. (2) (d) of rule 2A.  And the policy reasons for allowing decisions of fact to be made by the industrial jury have little application to the case of an interlocutory decision taken by a Chairman sitting alone.  I would prefer therefore to regard myself as free to decide for myself whether the Union should have leave to amend, without having to undertake the exercise of considering whether my view of the proper outcome is the only one to which a reasonable tribunal could have come.  However, I have to accept that Sir John Donaldson MR in O'Kelly v. Trusthouse Forte plc [1983] ICR 728 did appear, albeit very shortly and arguably not by way of majority ratio, to found the automatic remission rule on his construction of what is now s. 35 (see p. 764 at D-E), and that Sedley LJ may be taken to have accepted that in Bennett; and if that were right the adoption of the overriding objective could not impact on the effect of the statute.  I must therefore recognise that my preferred approach may be heterodox; and I would accordingly if necessary say - assuming in the interests of duty the risk of appearing arrogant - that the conclusion expressed in the following paragraphs is in my judgment the only conclusion to which the Chairman, if she had properly directed herself, could have come.     
17. In my view the proposed amendment should be allowed. I believe there will be a greater injustice to the Union – or, more accurately, to the employees in respect of whom it is recognised – if the amendment is refused than there will be to Safeway if it is allowed. Mr. Stafford submitted to me that the balance was essentially even, because the hardship to the Union of not being able to pursue its claim was balanced out by the hardship to Safeway of being exposed to a claim to which it would otherwise have had a limitation defence. That is true up to a point: I agree, for example, that any argument based on the potential value of the claims, which is on any view very large, is self-cancelling: the bigger the potential loss to the employees, the bigger also the potential saving to Safeway. But the problem with Mr. Stafford's argument is that if those were the only factors to be put in the balance that would apply in every case of an amendment to introduce a new claim out of time and would render the Cocking test largely empty. It is necessary, and appropriate, to bring other factors into the equation. Those which weigh most with me are as follows.
18. First, although, as already established, the claim for breach of the statutory consultation obligations is unquestionably a new claim, it is very closely related to the claim originally pleaded. Both claims depend centrally on the allegation of defective consultation, and all, or almost all, the facts which will be material to the new claim will already have been in play in the old. I am not sure that I would describe it as a mere "re-labelling" of the facts already pleaded: though that is in one sense true, it tends to gloss over the fact that, as the Chairman rightly decided, the claim for breach of the consultation obligations is a claim of a different nature to the claim already pleaded, with different (and additional) consequences. But whether or not it is right to describe the new claim as "mere re-labelling" is not decisive. The important point is that it depends on facts which are, substantially, already alleged. If these proceedings were in the High Court, an amendment to add the new claim would have no difficulty satisfying the requirements of CPR 17.4 (2).
19. Secondly, a claim by the Union for breach of the statutory consultation obligations would reasonably have been anticipated by Safeway as the natural, one might almost say inevitable, concomitant of any individual claims for unfair dismissal based on deficiencies in consultation. It must have been a considerable, though of course welcome, surprise to Safeway and its advisers to find that no such claim was included in the claim form. They will almost certainly have been puzzled by its absence, particularly given that the Union was, anomalously, named in the ET1as the primary claimant. I was told by Mr. Rose - and I readily accept, since it seems the only possible explanation - that in fact it was always intended on the part of the Union to include such a claim and that it was only omitted as the result of some unspecified mistake or failure of communication within the legal team. (Indeed I think it very likely - though this is not necessary to my reasoning – that Safeway itself will have suspected from the start that the omission was simply a mistake.) In these circumstances, for the employees to be deprived of their claim through a lawyers' blunder seems peculiarly unjust, and the cliché'd description of the benefit to Safeway as a windfall seems peculiarly apt. This is not a case where the new claim was one which will have been unexpected. Mr. Stafford made the point that if this was indeed a lawyers' mistake, any employees who lost out as a result would have a good claim in negligence. I will assume that to be so (although it is not inconceivable that there might be arguable defences), but I do not regard it as a reason for not taking the more straightforward course of permitting the amendment if it would otherwise be fair to do so. As is well-recognised in the authorities relating to the extension of time limits for personal injury claims, a remedy against the claimant's solicitors is not equivalent to the primary remedy which would be lost if time were not extended, and its potential availability is not necessarily decisive against granting such an extension (see, e.g., Hartley v. Birmingham City Council [1992] 1 WLR 968).
20. Thirdly, the application was made reasonably promptly. Safeway was on notice of the intended claims within two or three months of the presentation of the ET 1. It cannot in those circumstances point to any particular prejudice caused to it by the late amendment, over and above the inherent prejudice of being exposed to a claim which could not otherwise have been brought.
21. For those reasons I allow the appeal and permit the Union to amend its pleading in the manner proposed.

Note 1    I should note that Mr. Rose submitted that in one respect at least Lindsay P’s criticism of the reasoning in Kelly was demonstrably wrong. At p. 1038 Lindsay P. analyses the guidance in Cocking and detects an inconsistency with the approach taken in Kelly. Mr. Rose (following Judge Clark in Lehman Brothers (above)) submits that there is no such inconsistency and that Lindsay P. had misunderstood the effect of “Cocking step (3)”. I think Mr. Rose is right about this, but the point is not of importance in the present context.     [Back]