SUMMARY
PRACTICE AND PROCEDURE – Amendment
The decision by an Employment Judge to refuse permission to amend
an ET1 could not be faulted, as it was a decision well within the ambit of her
discretion and she had made no error of law.
HIS HONOUR JUDGE SEROTA
QC
Introduction
1.
This is an appeal by the Claimant from a decision of the Employment
Tribunal at Watford (Employment Judge Lewis) that was sent to the
parties on 22 February 2012. This is not intended to be a criticism,
but at a Pre-Hearing Review (PHR) I note that the decision is barely two‑and‑a‑half
pages long.
2.
The appeal was referred in part to a full hearing by
HHJ McMullen QC on 13 April 2012. The grounds permitted to
go to a full hearing relate to the Employment Judge’s decision to refuse to
allow an amendment to the ET1.
3.
I heard the appeal on 27 June 2012 and then informed the
parties that the appeal would be dismissed but I would hand down my full reasons
later, as I now do.
The relevant background
4.
On 18 August 2011 the Claimant presented his ET1. He claimed he
used to undertake ad hoc work for the Respondent as a “worker” within the
meaning of section 230(3) of the Employment Rights Act 1996
(ERA) and had suffered a detriment by reason of having made protected
disclosures.
5.
On 15 May 2011 he complained to the Respondent’s manager, Adrian
Camm, that he had been subject to bullying and that caused him stress and chest
pains. He also referred in that email to the shift pattern and allocation of
shifts which he claimed was operated to his disadvantage. This part of the
email is relevant to the application to amend; see page 92.
6.
On 18 May 2011 he sent a further email to Adrian Camm in which
he raised the possibility of a terrorist threat, allegedly made by a member of
the Respondent’s traffic staff towards colleagues, as a matter that should be
reported to the police. In another email of 18 May (he seems to have sent
a number of lengthy emails on that day) he stated that he was unhappy about
working with a colleague; the prospect of working closely with her led him to
get chest pains and attend A&E. On 19 May he sent a further email
referring to allocation of shifts on the casual rota and asking:
“Why do you express to me no interest whatever in the nature of
terrorist threats I hear have been made against the BBC by a serving member of
staff under your direct control? Sir, what do you have to hide?”
7.
All of these emails are said to contain qualifying disclosures within
the meaning of section 43B of the ERA 1996 in that they tend to
show that the health and safety of any individual has been, is being or is
likely to be endangered; see section 43B(1)(d). The individual whose
health and safety was endangered is said to be the Claimant.
8.
The Claimant asserts that he suffered a detriment as a result of making
these disclosures in that he was not allocated further work. He also argued
that he suffered age discrimination, but this claim was struck out as having no
reasonable prospects of success at a Pre‑Hearing Review before
Employment Judge Lewis on 4 January 2012. There was an
application to strike out the claims of PID detriment at the PHR, but the
Employment Judge declined to strike those claims out. The PHR was immediately
followed by a case management discussion, also before Employment
Judge Lewis.
9.
At no stage during the PHR or the CMD did the Claimant indicate that he
might seek to rely upon further incidents of PID detriment (which would
necessitate an amendment of his ET1 and particulars of claim). On
30 January 2012 he made that application.
10.
The case was fixed for a three‑day hearing commencing on
15 April at the CMD on 4 January 2012. I understand that by
reason of this appeal the hearing has been adjourned.
11.
The Claimant unsuccessfully sought a review of the decision that is the
subject of this appeal on 3 April 2012.
12.
The Respondent in relation to the pleaded allegations denied that the
Claimant had made protected or qualifying disclosures and also denied that he
had suffered any detriment.
13.
The amendment sought to raise two new grounds of PID detriment: firstly,
that the Respondent had breached a legal obligation in his contract by the
unfair allocation of shifts favouring other “workers”; and secondly, an
assertion that the Respondent breached a legal obligation in his contract by
delaying an investigation into a grievance that he had raised regarding
bullying.
14.
The Employment Judge directed herself by reference to the authority of Selkent Bus Co Ltd v Moore [1996] ICR 586, which set out the key principles relating to amendments in
the Employment Tribunal; I shall turn to this authority in due course. The
Employment Judge noted that the amendments were neither minor nor were they the
re-labelling of existing allegations. She considered that they introduced
completely new protected disclosures and an entirely new theory of what had
upset the Respondent. She noted that the primary time limit for commencing
proceedings was 19 August 2011, so, in a sense, they were made six
months out of time; see paragraph 7. She noted that time might be
extended if it had not been reasonably practicable to bring the claim in time.
The Claimant was represented by solicitors and there was no evidence of any
difficulty in presenting the claim in time. She added:
“The Claimant knew the facts. Indeed, he had written numerous
emails at the time regarding shift allocation and that was one of his main
concerns.”
15.
She went on to note at paragraph 8 that the time limit was not
determinative of the application to amend; it was only one factor. It was
particularly relevant to consider the balance of hardship between the parties.
On the one hand there would be hardship for the Claimant in not being permitted
to argue a case that theoretically may have better prospects of success than
those that were currently claimed; moreover, the Claimant was no longer able to
argue his age discrimination case. But on the other hand, the Claimant still
had a whistleblowing case that was in time and that he could argue, and that
reflected what she had to assume was what he originally considered to be the
cause of the termination of his employment.
16.
The Employment Judge then at paragraph 9 went on to consider the
prejudice that the Respondent might suffer by having to face the additional
claim:
“Regarding the respondents, the question is what prejudice they
would suffer over and above having to face an additional claim which might
succeed where others have failed. I believe there is such prejudice. The
respondents have prepared their defence to date on the basis of a different
case. Although there is an overlap of facts, there are also substantial
differences. The proposed amendment casts the net much wider in terms of the
content of the claimant’s emails. The respondents’ solicitors may need to re-interview
witnesses whom they have already spoken to. They may wish to amend their ET3.
The respondents requested and prepared for the pre‑hearing review on the
basis of the claim as pleaded. They took it most seriously. They were
represented by counsel. They produced written submissions and witness
statements. They did not have the opportunity to seek strike out or a deposit
order regarding the two new proposed amendments. To do so now would require a
further PHR with all the costs entailed. Moreover, the listing of the case for
three days is unlikely to be sufficient with the additional claims. A
postponement and relisting is likely to lead to a longer delay in hearing the
case than it had originally been listed for a longer period.”
17.
The Claimant has seized upon the language used in paragraph 9 that
the Respondent’s solicitors “may” need to interview witnesses and they “may”
wish to amend their ET3. At paragraph 10 the Employment Judge noted that
the Claimant had the opportunity at any time prior to the PHR and CMD to seek
permission to amend but he gave no hint of any amendment to come. He always
knew he had been complaining to the Respondent about shift allocation and delay
in handling his grievance:
“10. He chose to select out two other sources of complaint as
the protected disclosures founding his whistleblowing claim. It cannot be
right that the claimant is permitted to change tack as he goes along regardless
of the impact on the respondents in terms of extra time and costs.
11. Balancing all these various considerations, the amendment is
not allowed.”
18.
I should also note in relation to the application to review a letter
from the Employment Tribunal dated 3 April 2012 at page 91 of
the bundle, which contains the following:
“The Judge has already explained her reasoning for refusal of
leave to amend. The use of the word ‘may’ in paragraph 9 of the Judgment
was perhaps infelicitous, but the Judge intended to convey that she accepted
the respondents’ evidence in their letter of 2 February 2011 that they
would need to amend their ET3 and prepare more detailed witness statements if
the amendments were allowed.”
The Notice of Appeal and submissions in support
19.
I note that the Notice of Appeal was seven pages long and the skeleton argument
five pages long. It was firstly submitted that the amendments did not seek to
add a new cause of action; it was, therefore, not out of time, and it was
inappropriate of the Employment Judge to consider the time limits for
commencing proceedings. I observe that in their letter seeking permission for
the amendment the Claimant’s solicitors stated:
“We must, of course, acknowledge that these proceedings
commenced on 18 August 2011 and that, accordingly, the proposed amendment
would be considerably out of time.”
20.
It was submitted that the proposed amendments merely supplemented the
existing claim that the Claimant had suffered a PID detriment within the
meaning of section 48 of the ERA 1996.
21.
Mr Dutton, who appeared on behalf of the Claimant, drew attention
to a relevant extract from Harvey on Industrial Relations and Employment Law
at division P1 at paragraphs 311‑312. I shall return to this in due
course.
22.
Mr Dutton suggested that the Employment Judge had fallen into error
in making findings of fact in relation to the effect of any amendment based on
speculation rather than evidence. He suggested in his submissions there was no
evidence of “enormous expense” that might be incurred by the Respondent were
the amendments to be granted. He submitted that if expense were to be taken
into account, there had to be evidence of at least “considerable expense”. In
fact, the prejudice to the Respondent would be minimal both in relation to
further interviews of witnesses and amending the ET3 response.
23.
Mr Dutton went on to submit, without there being evidence to
support this particular submission, that the cost to the Respondent would be
modest as it was represented by its own in‑house solicitors. Further,
there was little expense as there was little overlap between the existing and
the proposed new claims. Reference would be made to the same emails. It was
likely that the Respondent would rely on the same arguments in relation to the
new allegations as to the existing allegations. It would rely on the same
arguments as to absence of good faith and causation, and its case on the
allocation of shifts had been set out in the email correspondence.
24.
So far as the loss of a potential application to strike out was
concerned, such an application was unlikely to succeed because the application
to strike out the existing grounds relating to public interest disclosure (as
opposed to age discrimination) had failed. The Employment Judge should have
considered whether to allow the amendment subject to a possible costs order in
favour of the Respondent.
The Respondent’s submissions
25.
Mr Coghlin’s skeleton argument runs to some 13 pages. I have
considered a bundle containing approximately eight authorities. Mr Coghlin
submitted that the decision of the Employment Judge was a case management
decision and that case management decisions of Employment Judges should be
respected and supported. He drew my attention to authorities I shall refer to
shortly, such as Gayle v Sandwell & West Birmingham Hospital
NHS Trust [2011] IRLR 810, Noorani v Merseyside TEC
Ltd [1991] IRLR 84, The Housing Corporation v Bryant
[1998] ICR 123 and X v Z Ltd [1997] ICR 43.
Mr Coghlin referred to the chronology and the delay and characterised the
amendments as being a weak attempt to dress up allegations as disclosures of
information, thus the assertion of a contractual right was not a disclosure of
information; in this regard, he relied upon the decision in Cavendish Munro Risks Management Ltd v Geduld
[2010] ICR 525. The same applied to the alleged delay in considering his
grievance; this, again, was an allegation, not a disclosure of information.
26.
Further, and in any event, in relation to the “disclosure” of the
failure to investigate a grievance Mr Coghlin observed that the Claimant
faced an insuperable difficulty in that he could not have a reasonable belief
that the Respondent had delayed in investigating his grievance or was likely to
do so, certainly to the extent of being in breach of contract. His email was
sent at 2.02pm on 19 May, less than two hours after he had set a deadline
for reply of “end of working hours on Monday”, i.e. 22 May 2011.
Given that the grievance had been raised only a few days before and his self‑imposed
deadline was still over three days away, Mr Coghlin submitted there were
no reasonable grounds for him to believe that the Respondent had or was likely
to commit a breach of a legal obligation by unreasonably delaying in resolving
his grievance; be that as it may.
27.
Mr Coghlin submitted that the Employment Tribunal was entitled to
conclude that the proposed amendment was not minor, it introduced new allegations
of protected disclosures and put an entirely different theory for what it was
done by the Claimant that had upset the Respondent. It was therefore entitled
to conclude that time limits were relevant because it was in essence a new
claim even if linked to and arising out of claims already pleaded. The time
limits were relevant to the issue of delay, for which there was no good reason,
and the failure to show that it was not reasonably practicable to have made the
amendments earlier was, of course, relevant. Delay in making an amendment was
a significant factor to be considered following the decision in Selkent v
Moore.
28.
In the particular case the Employment Judge clearly drew the inference
that at the CMD and PHR the Claimant was well aware of the need to amend his
claim but had deliberately chosen not to at that stage. The Employment Judge
was correct to have regard to the balance of hardship, including the loss of
the hearing date, and she was best placed to say if the hearing might be
extended or not and consequently the date lost. In so far as her assessment of
work that would need to be undertaken by the Respondent’s solicitors, this was
a matter of impression for her. She had the benefit of knowledge of employment
law and practice and of this particular case, because she had conducted the CMD
and the PHR, and was familiar with how litigation progressed in Employment
Tribunals and how a Respondent might have to respond in detail to the points
raised by the amendment.
29.
He submitted that were the amendments to have been allowed the
Respondent would have to re‑interview witnesses about a wider array of
emails than those specifically referred to (it appears that the Claimant sent a
large number of emails). It would be necessary to amend the ET3 response and
to re‑examine the factual background, focussing on the reasons why the
Claimant’s fellow “workers” were said to have received a more generous
allocation of shifts. There would also have to be further investigation on the
issue of causation.
30.
Mr Coghlin answered the submission that there was no hard evidence
as to the expense that might be caused by the amendment. He noted that the
Employment Judge in the review application had accepted the Respondent’s case
that the Respondent would need to amend its ET3 and prepare more detailed
witness statements. She was entitled to use her own knowledge of the case and
assess the likely expense and extent of further work based upon what she had
seen of the case, her own knowledge of litigation in the Employment Tribunal
and the state of its lists. So far as a costs order was concerned,
Mr Coghlin submitted that this might not be of any value. It would be
necessary for him to show that the Claimant had acted unreasonably, and also
his ability to pay an order for costs would have to be considered as being
possibly relevant to the decision to order payment of costs.
31.
Mr Coghlin again stressed the importance of respecting the
discretion of the Employment Judge in relation to matters she had taken into
account. Her decision was nowhere near perverse; Mr Coghlin referred to
the well‑known authority of Yeboah v Crofton
[2002] IRLR 63, which required the Claimant to make out an “overwhelming” case.
32.
Overall, Mr Coghlin submitted, the Employment Judge came to a permissible
conclusion weighing up all relevant factors and the decision could not possibly
be characterised as perverse.
The law: protected and qualifying disclosures
33.
Regarding protected and qualifying disclosures section 43A of the Employment
Rights Act 1996 provides:
“In this Act, “a protected disclosure” means a qualifying
disclosure (as defined by s.43B) which is made by a worker in accordance with
any of ss.43C to 43H.”
Section 43B(1) provides [so far as relevant to this case]:
“In this Part, a “qualifying disclosure” means any disclosure of
information which, in the reasonable belief of the worker making the
disclosure, tends to show one or more of the following:
...
(d) that the health or safety of any individual has been, is
being or is likely to be endangered.”
34.
An employee who has been subjected to a detriment by reason of having
made a protected disclosure (see section 47B) may make complaint to the
Employment Tribunal pursuant to section 48. The Employment Tribunal can
grant various remedies, including compensation.
The approach to decisions of the Employment Tribunal
35.
In Canadian Imperial Bank of Commerce v Beck [2009] IRLR 740, Wall LJ helpfully set out the principles that apply when challenging
a discretionary decision of an Employment Tribunal:
“23. As to the correction of an error of law committed by a
judge who is exercising a judicial discretion, the law is equally clear. The
leading case is G v. G [1985] 1 WLR 647, which contains references to
the well-known judgment of Asquith LJ in Bellenden (formerly Satterthwaite)
v Satterthwaite [1948] 1 All ER 343 at 345. For an appeal to succeed, the
exercise of discretion which is challenged must, in Asquith LJ's words:
"exceed the generous ambit within which reasonable disagreement is
possible".
There is no particular magic in the fact that we are here
dealing with an appeal from the ET to the EAT and then to this Court. G v G
principles apply in the instant case as they would apply to any other appeal
which involves the exercise of a judicial discretion.”
36.
In the Judgment of Longmore LJ in Chief Constable of Lincolnshire Police v Caston [2010] IRLR 327:
“29. I agree and would only reiterate the importance that should
be attached to the EJ's discretion. Appeals to the EAT should be rare; appeals to
this court from a refusal to set aside the decision of the EJ should be rarer.
Allowing such appeals should be rarer still.”
37.
Particular care must be taken when case management decisions are
concerned; the matter was put well by Lawrence Collins LJ in Wallbrook Trustee (Jersey) Ltd v Fattal [2008] EWCA Civ 427 at paragraph 33:
“These were case management decisions. I do not need to cite
authority for the obvious proposition that an appellate court should not
interfere with case management decisions by a judge who has applied the correct
principles and who has taken into account matters which should be taken into
account and left out of account matters which are irrelevant, unless the court
is satisfied that the decision is so plainly wrong that it must be regarded as
outside the generous ambit of the discretion entrusted to the judge.”
38.
Mummery LJ made the same point specifically in relation to Tribunal
decisions in Ma v Merck Sharpe and Dohme Ltd
[2008] EWCA Civ 1426:
“I am also of the view that this court should not be
hyper-critical or over-analytical in its treatment of tribunal decisions which,
even if not themselves technically discretionary case management issues, are
closely connected to the practical management of complex or intractable litigation.
After all it is the ET and not the Court of Appeal that is going to try the
case. That said, however, there are features in the present case that have led
me to the conclusion that a question of law does arise from the decision of
the ET to limit or exclude from the substantive hearing on time limit grounds
some of Dr Ma’s complaints and evidence of them, and that there should be some
variation in the ET’s order.”
39.
For the sake of completeness I refer to two authorities cited by
Mr Coghlin. Firstly, in Gayle Mummery LJ said at
paragraph 21:
“If the ETs are firm and fair in their management of cases
pre-hearing and in the conduct of the hearing the EAT and this court should,
wherever legally possible, back up their case management decisions and rulings.”
40.
In X v Z [1998] ICR 43 Waite LJ stressed
the importance of respecting decisions of Employment Judges:
“The case provides a salutary example of the value of the rule
that the tribunals themselves are the best judges of the case management
decisions which crop up every day as they perform the function, an important
but seldom an easy one, of trying to do justice with the maximum of flexibility
and the minimum of formality to the problems that arise from the employment
relationship and its termination. Decisions of the kind that the chairman was
required to make in this case frequently call for a balance to be struck
between considerations of time, cost and convenience as well as fairness to the
parties, and in the vast majority of cases can and should be left to the
tribunals to resolve for themselves without interruption from the appellate
process.
41.
This dictum was applied by Buxton LJ in the Court of Appeal in the
case of an application to amend; see Bryant v Housing Corporation
[1999] ICR 123.
42.
The Appeal Tribunal’s Practice Direction at 11.6.2 draws attention to
the potential difficulties in appealing against case management decisions:
“11.6.2 The EAT recognises that employment judges and Employment
Tribunals are themselves obliged to observe the overriding objective and are
given wide powers and duties of case management (see Employment Tribunal
(Constitution and Rules of Procedure) Regulations 2004 (SI No 1861)), so
appeals in respect of the conduct of Employment Tribunals, which is in exercise
of those powers and duties, are the less likely to succeed.”
Perversity
43.
The principle in Yeboah is well known. Mummery LJ
said at paragraph 93:
“Such an appeal ought only to succeed where an overwhelming case
is made out that the Employment Tribunal reached a decision which no reasonable
tribunal, on a proper appreciation of the evidence and the law, would have
reached. Even in cases where the Appeal Tribunal has "grave doubts"
about the decision of the Employment Tribunal, it must proceed with "great
care", British Telecommunications PLC –v- Sheridan [1990] IRLR 27
at para 34.”
Principles applicable to granting permission for amendments
in the ET
44.
The leading authority is Selkent v Moore (Mummery J,
as he then was, in the EAT). The headnote is as follows:
“In deciding whether to exercise its discretion to grant leave
for amendment of an originating application, a 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.
Relevant circumstances include: the nature of the amendment, the applicability
of statutory time limits and the timing and manner of the application.”
45.
Mummery J pointed out that if the amendment seeks to raise a new
cause of action, consideration must be given to the questions of time limit,
because if application is made to amend outside the relevant limitation period,
the Employment Tribunal by analogy with the principles of application for the
commencement of proceedings out of time should only grant permission if it
would be either “just and equitable” or it had not been “reasonably
practicable” to commence proceedings within time, as the case may be. That is
not to say, however, that time is irrelevant, because the reasons for and the
extent of any delay in making the application were highly relevant.
46.
Employment Tribunals should take account of all relevant circumstances;
Mummery J continued at paragraph 21:
“21.
(4) 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.
22
(a) The
nature of the amendment
Applications to amend are of many different kinds, ranging, on
the one hand, from the correction of clerical and typing errors, the additions
of factual details to existing allegations and the addition or substitution of
other labels for facts already pleaded to, on the other hand, the making of
entirely new factual allegations which change the basis of the existing claim.
The tribunal have to decide whether the amendment sought is one of the minor
matters or is a substantial alteration pleading a new cause of action.
(b) The
applicability of time limits
If a new complaint or cause of action is proposed to be added by
way of amendment, it is essential for the tribunal to consider whether that
complaint is out of time and, if so, whether the time limit should be extended
under the applicable statutory provisions, eg, in the case of unfair dismissal,
s.67 of the 1978 Act.
23
c) The
timing and manner of the application
An application should not be refused solely because there has
been a delay in making it. There are no time limits laid down in the Rules for
the making of amendments. The amendments may be made at any time – before, at,
even after the hearing of the case. Delay in making the application is,
however, a discretionary factor. It is relevant to consider why the application
was not made earlier and why it is now being made: for example, the discovery
of new facts or new information appearing from documents disclosed on
discovery. Whenever taking any factors into account, the paramount
considerations are the relative injustice and hardship involved in refusing or
granting an amendment. Questions of delay, as a result of adjournments, and
additional costs, particularly if they are unlikely to be recovered by the
successful party, are relevant in reaching a decision.”
47.
The relevant passage from Harvey that I mentioned earlier in this
Judgment is to be found at division P1 commencing at
paragraph 311.03:
“A distinction may be drawn between (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.
[312]
Amendments
falling within category (i) are not affected by the time limits, as the nature
of the original claim remains intact, and all that is sought to be done is
change the grounds on which that claim is based. (It is to be noted that, when
determining whether the proposed amendment falls within the existing claim as
pleaded, or constitutes an entirely new claim, regard is to be had to the whole
of the ET1, and not just to the general description of the complaint in box 1: Ali v Office of National Statistics [2004] EWCA Civ 1363, [2005] IRLR 201 at para 39.) Thus, in an equal pay claim, the
substitution of one comparator for another is treated as an amendment to an
existing claim, rather than an application to raise a new claim in the same
proceedings (Smith v Gwent District Health Authority
[1996] ICR 1044, EAT).
In unfair dismissal cases, a claimant may seek to amend his complaint to
include a new basis for alleging that the dismissal was unfair. The new ground
will not be time-barred because no separate cause of action is being added, but
again whether the amendment is allowed will depend on factors such as hardship
and delay. Selkent Bus Co v Moore is illustrative of
the problems faced by a claimant who seeks to amend at a late stage. A
fortnight before the date fixed for the hearing, the claimant applied to amend
his unfair dismissal complaint to allege, in addition to the existing claim
that his dismissal was unfair on general principles, a fresh allegation that
the dismissal related to his trade union membership or activities and so was
automatically unfair. The tribunal allowed the amendment but its decision was
overturned on appeal. The factors which influenced the EAT in refusing the
amendment were (a)
the delay in making the application to amend, coupled with a lack of
explanation from the claimant as to why the new grounds, which must have been
known to him at the time, had not been put forward in the original application;
(b) the
absence of hardship to the claimant as his case would in any event proceed on
the original basis; and (c)
the greater risk of hardship to the respondents if the amendment were allowed,
resulting from an adjournment of the proceedings and a longer hearing, with a
concomitant increase in costs that would not be recoverable.”
The distinction between disclosures of information and making
an allegation
48.
In Geduld (Slade J in the EAT) a distinction is drawn
between disclosure of information that must be proved for the purposes of making
a qualifying disclosure under section 43B(1) of the ERA and simply making
an allegation that would not fall within that definition. Slade J
observed, “The ordinary meaning of giving ‘information’ is conveying facts”.
Conclusions
49.
Generally, I prefer Mr Coghlin’s submissions. It is simplistic to say
that the proposed amendment was simply an amendment to the existing claim and
just another example of PID victimisation merely designed to alter the basis of
the existing claim. It was a wholly new allegation even if it could be said to
arise out of matters already pleaded, and it raised a new distinct head of
complaint and was not simply a re-labelling exercise of facts already pleaded.
However, I do not believe it is contended that it is a wholly new claim or
cause of action that was not connected to the original claim at all such as to
require the Employment Judge to consider time limits as such and consider by
analogy with applications to extend time whether or not it was reasonably
practicable to have made the application within the appropriate limitation
period. I note in passing the somewhat unwise statement of the Claimant’s
solicitors’ letter that the application was “out of time” at page 71. I
cannot say whether or not this may have influenced the language used by the
Employment Judge.
50.
In the circumstances of this case, it was necessary for the Employment
Judge, as she directed herself, to apply the principles set out in Selkent
v Moore and to consider the extent and reasons for the delay, as explained
in that case, when weighing up the necessary factors for the exercise of her
discretion. I am satisfied in this case that the Employment Judge did not
consider that the new claim was one that added or substituted a wholly new
claim or cause of action that was not connected to the original claim at all
such that she had to consider the effect of time limits, as though the case
were in category 3 referred to in Harvey. She was, however, entitled to use
the time limits for bringing proceedings as a yardstick to measure the
Claimant’s delay. It is unlikely having directed herself to Selkent v Moore that she would have considered the proposed amendments in this case to be in
Harvey’s category 3.
51.
However, it is inevitable that even if an amendment is not such a case,
the more factual or legal issues the amendments add to the existing claim the
greater the risk of prejudice to the other party by reason of having to
undertake additional research and preparation and answer fresh allegations. I
reject the submission that the Employment Judge based her decision on the
exercise of her discretion on speculation. She was familiar with the case, she
was familiar with litigation in Employment Tribunals, and she would know the
likely expense and work required to prepare for trial when a new factual point
is raised shortly before the hearing and to have regard to that in weighing up
the relevant prejudice. She was also in the best position to know the effect
of the amendment on the estimated length of the case and whether she believed
it might well lead to an adjournment of the hearing. I reject the submission
that the cost to the Respondent would be significantly less because it used in‑house
solicitors rather than instructing outside solicitors. There is no evidence to
support that suggestion.
52.
Even though there may have been some overlap between the Respondent’s
defences to the original allegations and to those sought to be introduced by
the amendment, the Employment Judge was entitled to conclude that the amendment
would require further investigation by the Respondent as to the fairness and
reasons for shift allocations and whether the Respondent had acted in a
discriminatory manner in relation to shift allocations.
53.
In the circumstances the Employment Judge was entitled, if not bound, to
have regard to the delay on the part of the Claimant, as the Respondent
submitted. The amendment was not minor; it introduced new protected
disclosures and put an entirely different theory for what had upset the Respondent.
I also agree that the Employment Judge evidently drew an inference that the
Claimant was aware at the time of the PHR and the CMD of the need to amend but
he chose not to, for unexplained reasons. The Employment Judge was also
entitled to have regard to the balance of hardship that might be caused by the
loss of the hearing date, and, as I have said, she was best placed to say
whether the hearing might have to be extended and the trial date lost. Her
knowledge of the case was extensive because she had also conducted the PHR and
the CMD.
54.
In relation to the argument that the amendment would not necessarily
cause expense because the Tribunal had said that the Respondent “may” need to
interview witnesses again or amend the ET3, in the review application at page 91,
to which I have already drawn attention, the Employment Judge accepted the
Respondent’s case that it would need to amend the ET3 and prepare more
detailed witness statements.
55.
The Employment Judge was entitled to use her own knowledge of the case and
assess the effects of granting the amendment on the basis of what she had seen
of the case. I accept the Respondent’s submission that were the amendments to
have been permitted and the new case raised they would have had to consider
with witnesses a much wider array of emails than those specifically referred to
as well as having to amend the ET3. Even if the witnesses called would be the
same, it would be necessary for there to be an examination of the factual
background focussing on the reasons why the Claimant’s colleagues were
allocated more shifts than he was allocated and the causation issue, namely
whether the Claimant’s complaints led to his being denied further work.
56.
I did not see any suggestion in the Judgment, as the Claimant submitted,
that “considerable and excessive time and costs” would be incurred by the
Respondent. The Employment Judge (paragraph 9) merely referred to the
need to re‑interview witnesses and amend the ET3, and possibly make a
further application to strike out or for a deposit as well, possibly, as the
costs of the delay and a longer hearing.
57.
The Respondent in its submissions to the Employment Tribunal did not
make an allegation that its costs would be considerable and excessive.
58.
I accept an application for a costs order might provide little comfort
to the Respondent. It is by no means a foregone conclusion that such an order
would have been granted, and the Respondent would have to show that the
Claimant had not only acted unreasonably but there would have to be a consideration
of his ability to pay costs.
59.
The Claimant is in essence challenging the Employment Judge’s assessment
of the effect of the amendment, which seems to me to be well within the scope
of proper findings that she might make both as to the extent to which it might
overlap existing proceedings and to the extent to which it would cause
additional delay and expense.
60.
At the end of the day, this is a classic case of an Employment Judge
exercising a discretion, and it is very far from a case where her exercise of
discretion was plainly wrong or otherwise flawed. As I said in the brief
reasons at the conclusion of the hearing, I have come to the clear conclusion
that the decision to refuse permission to amend was a discretionary decision
well within the generous ambit of the Employment Judge’s discretion, and it is
clear from the authorities that the Employment Appeal Tribunal cannot interfere
with such an exercise of discretion. The decision was very far from perverse,
and the Claimant has failed to cross the high threshold referred to in Yeboah.
61.
I add, without deciding the point, that the Respondent’s case that the
amendment raises a weak case because the Claimant was making allegations rather
than disclosing information seems to have substance.
62.
In the circumstances, the appeal stands dismissed.-‑‑half‑Hal
