United Kingdom Employment Appeal Tribunal

Appeal No. UKEAT/0209/15/MC

 

 

EMPLOYMENT APPEAL TRIBUNAL

FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8AE

 

 

                                                                                                             At the Tribunal

                                                                                                             On 13 November 2015

 

 

 

Before

HER HONOUR JUDGE EADY QC

(SITTING ALONE)

 

 

 

 

 

 

2 SISTERS FOOD GROUP LTD                                                                            APPELLANT

 

 

 

 

 

MS S ABRAITYTE & OTHERS                                                                        RESPONDENTS

 

 

Transcript of Proceedings

 

JUDGMENT

 

 

 

 

 

 

 

 

 

 

APPEARANCES

 

 

 

 

 

For the Appellant	MR DAVID READE (One of Her Majesty’s Counsel) and MR DALE MARTIN (of Counsel) Instructed by: Freeths Cumberland Court 80 Mount Street Nottingham NG1 6HH
For the Respondents	MS DAPHNE ROMNEY (One of Her Majesty’s Counsel) and MR PHILLIP ENGELMAN (of Counsel) Instructed by: Leigh Day Solicitors Priory House 25 St Johns Lane London EC1M 4LB

 

 

SUMMARY

PRACTICE AND PROCEDURE - Amendment

EQUAL PAY ACT - Equal value

 

Equal Pay - Equal Value Claims - Application to Amend

The ET had allowed the Claimants to amend their equal value claims (i) to add new comparator roles, and (ii) to change and/or add the to the roles carried out by the Claimants themselves.  On the new comparator roles, the ET had proceeded (pursuant to the Claimants’ concession) on the basis that the amendments gave rise to new claims, brought out of time.  It had not adopted that course in respect of the amendments to the Claimants’ roles.

 

On the Respondent’s appeal.

Held, allowing the appeal:

The ET had been wrong to proceed on the basis that the amendments to change/add to the Claimants’ roles did not give rise to new claims, potentially brought out of time.  By analogy with the approach adopted by the EAT in Prest and ors v Mouchel Business Services Ltd [2011] ICR 1345, where a Claimant in an existing equal value claim sought to rely on different work she had undertaken during her employment, that gave rise to a different claim from that originally pursued and the ET should have seen it in context.

 

More generally, whilst not accepting the Respondent’s objection that the ET had failed to have regard to the time limit issues raised by the amendments in terms of the additional comparators, the reasoning did not disclose that it had done so in the cases of the amendments to individual Claimants’ roles and it was unclear whether it had fully engaged with all the issues thus raised when considering whether to allow the amendments; specifically the ET’s Reasons failed to disclose full engagement with the widened scope of comparisons required by the amendments (when both the comparator and Claimant role amendments were considered together).  This was a matter that was relevant to the ET’s exercise of discretion in considering whether to allow the amendments and the apparent failure to have regard to it rendered the decision unsafe.

 

In the circumstances, the appropriate course was for the matter to be remitted to the ET for reconsideration.

 

HER HONOUR JUDGE EADY QC

 

Introduction

1.                  I refer to the parties as the Claimants and the Respondent as below.  The appeal is that of the Respondent against a Judgment of the East London Employment Tribunal (Employment Judge Laidler, sitting alone at a Preliminary Hearing on 14 May 2015; “the ET”), sent to the parties on 9 June 2015, by which the ET, relevantly, granted the Claimants’ application to amend their claims.  Representation before the ET was as before me today.

 

Background

2.                  These proceedings relate to three “multiple” equal pay claims lodged in February and June 2014 by some 66 Claimants (34 women and 32 men), all formerly employed by the Respondent at a factory that closed on 29 November 2013 and whose employment was thus (in almost all cases) terminated on or before that date.  The men’s claims, which are contingent on those of their former female colleagues, have been stayed and do not concern me at this stage.

 

3.                  The first ET1 did not provide Particulars of the work undertaken by the Claimants; a defect subsequently made good pursuant to ET Order of 1 May 2014 (see the table attached to the Further Information of 19 May 2014).  The other ET1s attached that information at the outset.  In any event, each of the three ET1s included a paragraph 14 that reads as follows:

“Stable working relationship

14. In addition to the job titles provided, this grievance relates to any jobs that the claimants have held in the past 6 years that form part of a stable working relationship.”

 

4.                  At around the time the ET proceedings were commenced, those acting for the Claimants served an equal pay questionnaire on the Respondent, which included questions relating to potential comparator job roles.  A Response was served on 17 April 2014, after the first two ET1s had been lodged but before the third. 

 

5.                  As originally lodged, the ET claims relied on three comparator job roles, all in dispatch: dispatch operative, dispatch controller and dispatch supervisor.

 

6.                  Each of the Respondent’s ET3s sought further information, most relevantly as follows:

“26. The [Claimants’] representatives have failed to provide, in respect of each individual Claimant, the following information:

(b) Specific / accurate job-title;

(c) Specific terms and conditions (i.e. which terms it is asserted were less favourable than the comparators, and why);

(d) Specific comparator (i.e. which comparator relates to the Claimant’s role, and why); and

(e) Details of the basis on which it is asserted that the Claimant’s role and the comparator role are of “equal value”.”

 

7.                  The ET’s Order of 1 May 2014 required the Claimants to provide that further information.  That led to the response of 19 May with the table of Claimants’ roles.  The Respondent took the view, however, that this was still insufficient and, by letter of 29 October 2014, asked that the Claimants provide Particulars of:

“(a) … all jobs in respect of which the claims are being brought by each claimant in the six year period prior to presentation of the claims. …” (original emphasis)

and:

“(b) Specification of each and every comparator job role relied upon for each claimant job role in respect of which each female claimant advances a claim. …”

 

8.                  Those acting for the Claimants responded making clear their position that these Further Particulars could best be provided once the Respondent had given disclosure and itself responded to a request for further information made by the Claimants. 

 

9.                  The dispute between the parties in that regard came before the ET at a Preliminary Hearing (also before Employment Judge Laidler) on 6 March 2015.  The ET then ordered the Respondent to provide further information, albeit still in respect of the three comparator roles identified above (see the Order sent to the parties on 24 March 2015, specifically paragraph 15 thereof).  At paragraph 16 of the ET’s March 2015 Order it was recorded as follows:

“16. The Tribunal has concluded that the issue of the additional comparators and whether the Claimants need leave to amend can be left in abeyance pending the provision of the additional information by the Respondents.  The Claimants could then be required to make their position clear with regard to the additional comparators.  If they intend to rely on some or all of them and the Respondent still takes the point, then the Claimants should submit an application for leave to amend in case the Tribunal determines that such is required and that could be determined at the next preliminary hearing.”

 

10.              As far as the Claimants’ roles were concerned, the ET ordered that once the further information had been received from the Respondent:

“2. By 28^th April 2015, the Claimants shall specify in relation to each claimant:

a. Each job title in respect of which a claim is being made;

b. In respect of which of the three current comparators a claim is made in relation to each job of each claimant and

c. In respect of each claimant job and comparator job combination the terms and conditions as to which it is asserted that they are less favourable and why.”

 

11.              By letter of 28 April 2015, as the ET’s March 2015 Order had anticipated, those acting for the Claimants made an application to amend the claims to add further comparators.  They also provided the Further Particulars required by the ET’s Order.  They undertook this exercise by providing a global amended Particulars of Claim and Schedule.

 

12.              A further Preliminary Hearing had been listed for 14 May 2015.  Written submissions for that hearing were apparently exchanged between counsel the evening before.  Although opposition to the amendment to add comparators had been expected, Ms Romney QC tells me that it was only at that stage that the Claimants appreciated that the Respondent was also objecting to the amendments relating to the Claimants’ roles.  Her skeleton argument had not anticipated that point.  That background may assist in understanding why the application to amend (recorded by the ET in summary form) only set out the position so far as the comparator roles were concerned (see paragraph 3 of its Reasons).  In that respect, the Claimants were seeking to add some comparators who were lower paid than the original comparators relied on.

 

13.              On the amendment to add new comparators, the Respondent contended it was first necessary to consider evidence as to whether there was a difference between the jobs of the original comparators and those who were sought to be added.  That went to the question whether the amendment was such as to amount to a new cause of action and needed to be determined before the ET could decide whether or not to permit the amendment (when it would need to consider questions of time limits and the arrears date).  For the Claimants, it was argued it was unnecessary to consider evidence at that stage; it would be a duplication of effort, costs and time and contrary to the overriding objective.  For the purposes of the application to amend, they accepted the addition of new comparators amounted to a new cause of action, brought out of time.  No such concession was made in respect of the Claimants’ job roles amendment. 

 

14.              The ET rejected the suggestion that the point required it to hear evidence (which the Respondent had estimated would require a further two-day Preliminary Hearing): it was neither proportionate nor in accordance with the overriding objective to do so and the time limit and arrears issues did not have to be determined at that stage.  The ET took the view that although relevant to the exercise of its discretion, the time issue was not an absolute bar to allowing the amendment.  In the relevant circumstances, the Claimants had not unduly delayed in making the application.  The amendments arose from information provided by the Respondent.  In respect of the new comparator roles, although some of the male Claimants had carried out two of the roles, the ET accepted - not least due to language difficulties - that the relevance of these roles would not have been apparent to the Claimants until they received the further information from the Respondent.  The ET did not accept the Respondent would be substantially prejudiced by permitting the amendments, whereas the Claimants would be if their original comparisons were not upheld and they were not permitted to rely on the alternative comparators.  Accepting that the factory at which the Claimants had been employed was no longer in existence, that gave rise to no actual prejudice to the Respondent in dealing with the matters raised by the amendments.

 

15.              On the application to add or make changes to the roles that the Claimants themselves undertook, the ET rejected the contention that this gave rise to a new cause of action brought out of time.  The original claims had been issued in time.  The Respondent had subsequently provided further information, stating that the Claimants also did these additional jobs, and it was in response to that that the Claimants had applied to amend.  Applying the guidance laid down in Selkent Bus Co Ltd v Moore [1996] ICR 836, the ET was satisfied that these were still the same sort of claim but in relation to a different role performed by the Claimants. 

 

16.              Making clear it was not determining any time points in respect of the additional comparators amendment, the ET permitted the application for leave to amend.

 

Submissions

The Respondent’s Case

17.              The appeal was pursued under eight headings.  First, the ET wrongly failed to consider whether the claims sought to be added by way of amendment were out of time.  It was relatively easy to see the point: the factory had closed, and all employment ended nearly 18 months before the applications to amend.  If the ET had considered the question, it would have focused attention on the fact that the new claims were all over a year out of time and many of the additions related to jobs the Claimants had not undertaken for many years (in a minority of cases, even prior to the six-year arrears window).  Time limits were a relevant factor (see Moore; see also the ET England and Wales Presidential Guidance - General Case Management of 2014 (“the ET Presidential Guidance 2014”), in particular paragraph 11(2)).  The approach adopted by the ET (paragraph 16) was unduly generous to the Claimants, not least as once an amendment was granted that might have the effect of backdating it to the date of the claim and thereafter a Respondent would be prevented from taking the point (Rawson v Doncaster NHS Primary Care Trust UKEAT/0022/08), albeit if the Claimants were accepting that it only had effect from the date of the amendment that raised different issues.

 

18.              There were a number of potential additional matters raised by the amendments both in terms of time limits and comparisons.  Whilst the ET did not have to resolve all those issues at the Preliminary Hearing, it needed to be rigorous in identifying the issues and exercising its case management discretion properly in the light of that assessment.  On the time limit question, the ET first needed to determine what the amendment was; secondly, to identify which of the amendments identified new causes of action; and thirdly, to ask when that cause of action crystallised.  Whilst it was not impermissible to leave the answer to the third question to a later hearing, that would only be so if the ET had properly identified the cause of action and if the amendment did not compromise the time issue.  The ET failed to separate out the issues in this way and failed to approach the questions before it with the rigour required.  Even when proceeding on the basis of the concession that the comparator amendments were new causes of action brought out of time, it failed to engage with the issues to which that gave rise. 

 

19.              Second, and related to the first ground, the ET had wrongly classified the nature of the amendment for Moore purposes.  The Claimants having accepted that the additional comparator roles amounted to new causes of action, the ET was wrong to see the application to amend as not raising of new factual allegations changing the basis of the existing claim.  Specifically, new factual issues arose when considering the question of time limits, for example whether gaps in the Claimants’ employment histories meant they could not rely on a stable employment relationship extending over the different jobs but also in respect of the comparisons that would need to be made for the purposes of assessing equal value.

 

20.              Third, and separately, the ET was wrong to hold that an application to add a new Claimant role (with its own set of comparators) would not amount to a new cause of action and/or the alleging of new facts.  It was insufficient to simply see all as equal pay claims and thus not adding a new cause of action.  The question was whether the factual basis for the claim was different such that a new cause of action based on new facts was being brought.  Even if paragraph 14 of the ET1s had initially identified that claims were being pursued for the six years preceding the claims, the Claimants’ Further Information then specified the roles in respect of which they brought their claims, and the Respondent had not understood they were reserving the right to add yet further roles.  An equal value claim looks at the work done not just by the comparator but also that of the Claimant.  Changing the way the case was put in terms of the Claimants’ roles was putting the case on a new basis; it was a new cause of action.

 

21.              Fourth, the ET was wrong not to permit the Respondent to present evidence as to the differences in the job roles.  Whilst allowing the ET had wide case management discretion, this would have enabled it to understand the nature of the additional matters requiring determination as a result of the amendments and to form a view on the time limit question.

 

22.              Fifth, the ET appeared to misunderstand the submissions as to the relevance of time.  It focused on the arrears question; the more important issue was that the claims were advanced out of time for no good reason.

 

23.              Sixth, specifically, there was no discretion to extend time in an equal pay case, and that was a relevant issue when considering whether to permit an amendment that was on its face significantly out of time (Newsquest (Herald and Times Ltd) v Keeping UKEATS/0051/09, especially at paragraphs 21 to 23 and 33).

 

24.              Seventh, the ET misunderstood or failed to address the reasons why the application to amend was made late.  The information supplied by the Respondent (relied on to craft the amendments) had been provided in the responses to the pre-action questionnaires, sent to the Claimants in April 2014.  The information supplied pursuant to the subsequent ET order had only related to the comparators that were already the subject of the claims.

 

25.              Eighth, the ET had failed to determine the exact of the amendment being allowed.

 

26.              On the question of disposal, if the appeal were permitted, the Respondent took the view that the court would need to refer this matter back to the ET to carry out the requisite assessment; properly, that should be undertaken by a different Employment Judge.

 

The Claimants’ Case

27.              The starting point was the guidance in Moore, albeit that case had not had to address the particular complexities of equal value claims such as those arising on the time point.  That was why it was all the more important for this question to be seen as a matter of discretion for the individual ET.  It was important to have in mind time limits and possible extensions of time, but ultimately it had to be a matter for the ET in any individual case as to how best to approach this task, given the nature of the case and the application before it.  That was all the more so when facing an equal value case with the specific procedural Rules that would then apply.  What the Respondent had requested - first raised in its skeleton argument served the night before the hearing - was for the ET to consider evidence and effectively to engage in the exercise it would undertake at the Stage Two hearing.  Just as it was rare to determine a continuing act at a Preliminary Hearing in a discrimination case, it would not be appropriate to seek to determine all time issues in an equal value case at such a Hearing.

 

28.              The Respondent seemed to see the issue of time as having greater weight than any other, whereas it was just one of the relevant factors.  The paramount question was hardship and the balance of prejudice.  It was two years since the factory had closed and 18 months since the claims were lodged.  These claims were still not even at Stage One of the equal value procedure.  The Respondent had the relevant information in its possession.  It could easily have provided the information about the Claimants’ jobs earlier.  It was only after obtaining that information as to the detail of the Claimants’ jobs that they were in a position to carry out the assessment of the appropriate comparator roles.  The ET was entitled to see that as a relevant factor; it properly approached this question and did not err.

 

29.              As a matter of fact, all of the female Claimant roles fell under three heads: production operative, hygiene operative and team controller.  Production operatives and hygiene operatives had the same comparator: dispatch operatives.  They had sought to add two comparators: oven operatives and ground services.  Team controllers had compared themselves to three dispatch roles, albeit dropping dispatch operatives subsequently; they had only sought to add machine operatives.  So, the amendment did not add new female Claimant roles but specifically added specific individual Claimants under the existing roles relied on.  Moreover, the oven operative roles were already in play, because there were male Claimant oven operatives.  Allowing that any equal value assessment would look at the job role not the individual, as a matter of reality there were very few additional exercises in comparison required as a result of the amendments. 

 

30.              The Claimants had not understood there to have been an issue about the amendments to their roles prior to the hearing.  There had been a dispute about what was needed to in terms of providing Particulars of the roles in question, and the Claimants had been required to provide Further Information in that respect.  They could simply have relied on paragraph 14 of the claims and provided the additional information in Schedule form, but that would not have been a convenient way of completing the exercise.  Putting the material in by way of amended Particulars was the appropriate way of dealing with it.  That was not conceding that this was a new basis of claim but even if it was, the Claimants could rely on a stable employment relationship.  That argument could still be had; the ET had left that to another time.

 

31.              If it was not right that the new Claimant roles were simply provided by way of the giving of Further Particulars, there was no authority that this question must be seen as giving rise to a new cause of action or new basis of claim.  When a Claimant claims equal pay she is claiming against the comparators in respect of all of her work in the six years preceding the ET1.  By referring to the different roles they had previously carried out, the Claimants were not changing the basis of the claims.  The only objection might be when no initial reference to the entirety of the work done in that period had been made and the position might have been harder if the Claimants had not included paragraph 14 originally.  Even if there were a new claim, however, there was no significant difference in the factual and legal issues and no substantive change.  In those circumstances, time became much less of an issue.  Even if the Court was against the Claimants on these points, it remained a matter of discretion for the ET, which had adequately had regard to the relevant factors.

 

32.              Turning to the specific grounds of appeal.  On ground 1, there was an overemphasis in on the issue of time.  Ground 2 was really a duplication of ground 1.  On ground 3 - as to the effect of the amendments in terms of the Claimants’ roles and the new comparisons - the Claimants did not accept these gave rise to new causes of action.  As for the comparisons, whilst new evidence would be necessary in respect of (for example) the ground services comparator, others would be dealt with in any event as male Claimant roles.  Even if new evidence was required, it was simply a matter for the ET to look at in the balance.  On ground 4 - whether the ET should have permitted the Respondent to call evidence - that was a matter of case management.  The Respondent needed to show perversity, and it could not.  On ground 5 - as to whether the ET had understood the Respondent’s submissions on time - if the Respondent were to fail on the earlier grounds, this point took the matter no further.  As for ground 6 - the suggestion that greater weight needed to be given to the time issue in equal pay claims - that was simply wrong (and see the Judgment of the EAT in Walsall Metropolitan Borough Council and Anor v Birch and Ors UKEAT/0376/10).  On ground 7, it was wrong to say that the ET had misunderstood the reasons why the amendment was made late; it was entitled to take the view that any delay had at least arisen in part from the Respondent’s late provision of information.  This issue had to be seen in the context of the history of the proceedings, the additional information on the Claimants’ jobs and the need for that to be provided before the Claimants could form a view as to the comparators.  In any event, even if there had been no explanation for the delay, that need not have been fatal.  Finally, on ground 8 - whether there had been defects in the amended grounds - these had either been resolved at the hearing itself or related to the male Claimants’ cases, which had been stayed.  There was no issue of substance.

 

The Respondent in Reply

33.              The Claimants were now putting their case differently from below, now emphasising paragraph 14 of the ET1s, which had not been relied on before the ET (that could be seen from how the ET had understood the argument, see paragraphs 22 to 24 of its Reasons).  Certainly, the ET seemed to have understood the Claimants to be advancing a new case, albeit not then seeing it as giving rise to a new cause of action.  The Claimants might be able to rely on paragraph 14 below, but the assessment that would follow would be a matter for the ET. 

 

34.              On the explanation for the timing of the application the Claimants, there was no good answer as to why the Claimants had not sought to amend to add comparators before, on the basis of the information in the equal value questionnaire. 

 

35.              On the question of whether there was a different approach to be taken in equal pay cases on amendment, whilst that should still be dealt with in terms of Moore principles, the approach to time limits in equal pay cases had to be a point the ET should take into account. 

 

36.              Finally, on the errors in the amendment, it was not satisfactory that it had been dealt with at the hearing and left to be addressed in the male comparator claims.

 

The Relevant Legal Principles and the Approach

37.              As the parties agree, the starting point when considering the application to amend is provided by the guidance laid down by Mummery P (as he then was) in Moore.  Recognising that the discretion of an ET to regulate its own procedure must include a discretion to grant leave for the amendment of the originating application, Mummery P emphasised that, whenever the discretion to grant an amendment is invoked, the ET should take all relevant circumstances into account and should balance the injustice and hardship of allowing the amendment against the injustice and hardship of refusing it.  The Judgment in Moore then continues:

“(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.

(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 Regulations of 1993 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.”

 

38.              In the present case, the ET proceeded on the basis of a concession that the comparator amendments constituted new causes of action and as such were brought out of time.  No such concession was made in respect of the amendments to the roles undertaken by the Claimants.  The Respondent contends those ought also to have been characterised as new causes of action.

 

39.              There is no authority specifically on this point.  What can constitute a new cause of action or new claim in the equal pay context was, however, considered by the EAT in the case of Prest and Ors v Mouchel Business Services Ltd [2011] ICR 1345.  The particular issue raised in Prest was how the arrears date in a standard case was affected by the amendment of the in order to change the comparator and whether the six-year arrears period had to be calculated by reference to the presentation of the original ET1 or the subsequent amendment.  Underhill J (as he then was) concluded that the answer to that question depended on:

“23. … whether the work said to be being done by the new comparator is different from that said to be being done by the comparators originally named.  It is only if it is indeed different that a substantially new claim is being advanced …”

 

40.              It is, in any event, common ground before me that it is not fatal that a proposed amendment gives rise to a new cause of action that is out of time: it is a relevant consideration but not determinative of the application.  Even if the amendment adds a new basis of claim that goes beyond a mere re-labelling of the facts, an ET retains discretion to decide whether or not it should be permitted, see Transport and General Workers Union v Safeway Stores Ltd UKEAT/0092/07 at paragraph 13.  The point was considered further in Evershed v New Star Asset Management UKEAT/0249/09, when the proposed amendment was to add a claim of automatic unfair dismissal by reason of a protected disclosure (section 103A of the Employment Rights Act 1996 (“ERA”)) to an existing unfair dismissal (section 98 ERA) claim.  That was a new basis of claim, but, as Underhill J observed:

“15. … The weight to be attached to that fact depends on the extent of the difference between the original and the new bases of claim.  It is well-established that a “mere re-labelling” is much more likely to be permitted than an amendment that introduces very substantial new areas of legal and factual inquiry …”

 

41.              This recognition of the relevance of the question whether the amendment would raise new factual allegations went on to inform the Court of Appeal’s approach on the further appeal in Evershed ([2010] EWCA Civ 870; see the Judgment of Rimer LJ at paragraph 50).

 

42.              The position of amendments that add new claims for equal pay - where there is no discretion time to extend time and arrears are limited to a period of six years - was specifically considered by the EAT in Birch, where the EAT (HHJ Richardson presiding) held that equal pay claims were not in a special category because they were subject to immutable time limits whether as to the commencement of the claim or the period of time over which arrears might be claimed.  Specifically, the EAT there rejected the argument that this gave rise to a special consideration in equal pay cases; it remained neutral (see paragraph 37). 

 

43.              All that said, the Respondent contends that the case law makes clear that it is mandatory that an ET considers whether or not a new claim raised by way of proposed amendment is in fact in time (see Moore and also Keeping).  The Respondent further relies on the EAT Presidential Guidance 2014, which provides (paragraph 11(2)) that, if a new complaint or cause of action is intended by way of amendment, the ET must consider whether the complaint is out of time.  See further where the guidance specifically refers to the special time limits in equal pay claims at paragraph 11(3)(d).  The Respondent further argues that the requirement to consider the question of time limits in equal pay cases is rendered all the more important given the absence of any discretion to extend time. 

 

44.              I am not persuaded on that last point.  As the guidance laid down in Moore makes clear, the issue of any relevant time limit will be a material consideration to which an ET should have regard.  That is so where there is a discretion to extend time whether on the basis of reasonable practicability or more broadly because it would be just and equitable to do so or not.  Identifying the point from which time runs, whether the new claim added by amendment would have been out of time or whether where there is such a discretion time should be extended can involve complex, fact specific issues.  My reading of Moore is that it allows that this relevant factor should be considered as part of the mix in all cases but it is for the ET to decide what weight to give it.  Inevitably, that will include considering the nature of the claim in question, but there is no rule that a different approach is dictated by a particular statutory basis of claim.

Discussion and Conclusions

45.              Against that discussion of the approach, I turn to the issues raised by this appeal.  The first question for the ET was what was the nature of the amendments the Claimants sought to make?  This was twofold.  First, the Claimants sought to add different comparator roles. 

 

46.              For the purposes of this application to amend, it was accepted that the addition of new comparators amounted to new causes of action that, on their face, were brought out of time.  Given the concession, the ET proceeded on that basis.  The Respondent says that was not enough: the ET was obliged to approach more rigorously the specific question as to how out of time the new claims were.

 

47.              In this regard, if it was solely relating to the comparator amendments, I think the Respondent protests too much.  The ET was aware when the factory closed and would have thus have had in mind the starting point from which time was likely to run.  Allowing for some differences in the specific termination dates of the Claimants’ employments, the range of relevant dates was not that great.  It was, further, aware when the claims had originally been lodged.  I do not infer that it proceeded without any regard to the chronology; indeed, it specifically referred to matters arising from the history when dealing with the issue of delay (see for example at paragraph 21).  It proceeded on the basis that the new comparator amendments gave rise to new claims brought out of time.  It was aware that it was dealing with equal pay claims, where there was no discretion to extend time.  It reminded itself, however, that this was just one factor and then proceeded to consider the other relevant factors. 

 

48.              It is, however, undoubtedly the case that the ET did not adopt the same approach in respect of the amendments to add or change the job roles relied on as undertaken by the Claimants; the second type of amendment.

 

49.              Turning to this second form of amendment, in so proceeding, I accept (albeit somewhat reluctantly) that the ET did not understand the Claimants’ position to be simply that they had already made clear their basis of claim by virtue of paragraph 14 of the original ET1s.  It understood their position to be that they were adding to or changing their roles (paragraph 22).  If that was the Claimants’ position before the ET, was that a new basis of claim? 

 

50.              It was and remains common ground that there is no authority precisely on this issue.  The Respondent relies on Prest: the work being done by the Claimants in the other roles was different to that done in the roles originally identified, and thus a new claim was being advanced.  The Claimants argue otherwise: while adding comparators might be to change the basis of claim, when making a claim of equal pay a Claimant is asserting a basis of claim covering all the work she has undertaken in the preceding six years (although it is fair to say that that was not a point that Ms Romney QC put with great force, recognising it would be a hard argument to pursue if it had not been anticipated in the original claim).

 

51.              On this point I think one has to go back to the statutory basis of the claims.  Section 65(6) of the Equality Act 2010 provides:

“(6) A’s work is of equal value to B’s work if it is -

(a) neither like B’s work nor rated as equivalent to B’s work, but

(b) nevertheless equal to B’s work in terms of the demands made on A by reference to factors such as effort, skill and decision-making.”

 

52.              The claim is thus that a Claimant’s work is of equal value to that of her comparator.  Just as if she seeks to rely on the different work undertaken by a different comparator, if the Claimant relies on different work that she also carried out, why is that not a new claim?  It seems to me that the correct answer is that, contrary to the approach adopted by the ET, that is changing the basis of the claim being made.  To that extent, therefore, I consider the ET’s reasoning flawed.

 

53.              The next question that arises is whether that is fatal in this instance.  Here, paragraph 14 of the original ET1s had made clear that the Claimants were claiming equal pay in respect of all roles that they had carried out in the six years before their claims.  Ms Romney QC was thus not forced to argue her case on the more difficult basis. 

 

54.              The problem I face, however, is that this is not how the ET understood the issue.  Whether that was because the issue had not been properly identified sufficiently in advance of the hearing or for whatever other reason, it does not seem that paragraph 14 was the subject of any attention at this hearing.  Had it been, Mr Reade QC makes the point that the Respondent would have objected that the Claimants had since narrowed the basis on which they put their claims in the earlier Particulars they provided.  I am not entirely persuaded by that.  It seems to be certainly arguable that the Claimants were earlier simply addressing the simple requirement to state their roles at the time of making the claims, and the Respondent’s later request, made in October 2014, showed it still understood there remained the potential for other roles to be relied on, and hence it required the Claimants to provide yet Further Particulars.  On the other hand, I can see that the argument Mr Reade QC raises is not irrelevant: the ET needed to consider the nature of the amendment in the light of the original pleading and what had happened since.  I do not consider that this was properly done.

55.              Although (given the further delay it will cause) I am reluctant to refer this matter back to the ET, I have been unable to convince myself that there is only one answer to the point, and I think it has to be resolved before it can be seen how that might impact on the other issues raised by the Respondent, both as to possible time issues and as to the scope of the factual analysis and assessment required as a result of the amendment. 

 

56.              That latter question brings back into play the question of the amendments in respect of the comparator roles.  The changes to the job roles on both sides have to be considered in terms of the factual enquiry that will be required and the scope of the comparative assessments (and the ET’s Reasons do not show full engagement with these questions, considering the comparator and Claimant role amendments in the round).  All that must be for the ET, to be properly considered in the exercise of its discretion, and that is where I remit this question, and thus do not address in more detail the other issues raised by the appeal.