United Kingdom Employment Appeal Tribunal

Appeal No. UKEAT/0251/15/BA

 

 

EMPLOYMENT APPEAL TRIBUNAL

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

 

 

At the Tribunal

On 11 December 2015

 

 

 

Before

THE HONOURABLE MR JUSTICE SINGH

(SITTING ALONE)

 

 

 

 

 

 

BRITISH TRANSPORT POLICE AUTHORITY APPELLANT

 

 

 

(1) MR J HILL

(2) MR N MORGAN

(3) MR J WILLIAMS RESPONDENTS

 

 

Transcript of Proceedings

 

JUDGMENT

 

 

 

 

 

 

 

 

 

 

APPEARANCES

 

 

 

 

 

For the Appellant	MR JOHN MEHRZAD (of Counsel) Instructed by: Messrs Simons Muirhead & Burton Solcitors 8-9 Frith Street London W1D 3JB
For the Respondents	MS LOWRI WYNN-MORGAN (of Counsel) Instructed by: Richards Thomas LLP 14 The Strand Ferndale Rondda Cynon Taff CF43 4LY

 

 

SUMMARY

PRACTICE AND PROCEDURE - Amendment

 

The Claimants brought claims for pre-termination detriments that were alleged to have been imposed as a result of their making protected disclosures.  After they had lodged their claims they resigned and wished to claim for constructive dismissal as well.  The Employment Tribunal permitted them to amend their Particulars of Claim to permit that claim and directed that there should also be a Scott Schedule giving Further Particulars of matters that were set out in very general terms in the original pleading.  Later the Employment Tribunal conducted a Preliminary Hearing, at which the Employment Judge decided (1) that it was not necessary to give permission for a further amendment to be made in relation to the constructive dismissal claim; (2) that permission was required to amend the pre-termination detriments part of the claim but that, since those matters would very largely be before the Employment Tribunal in any event because of the constructive dismissal claim, there would be no prejudice to the Respondent and permission should be granted.

 

Held, allowing the appeal, the Employment Tribunal had erred in law as to the approach to be taken to the exercise of its broad case management discretion in the circumstances of this case.  The Particulars of Claim, even after amendment, did require further amendment if reliance was to be placed on a great many allegations of fact which had not been pleaded to date.  Further, that error of law then tainted the Employment Tribunal’s exercise of discretion in relation to the pre-termination detriments part of the case.  Accordingly, the matter would be remitted to a different Employment Judge to decide in accordance with the Judgment of the Employment Appeal Tribunal.

 

THE HONOURABLE MR JUSTICE SINGH

 

Introduction

1.                  This is an appeal against the Order made by Employment Judge Cadney, sitting alone in the Employment Tribunal at Cardiff, on 8 April 2015.  That was an Order made after a Preliminary Hearing that took place in person.  The Reasons for the decision were sent to the parties on 7 May 2015.  For convenience I will refer to the parties as the Claimants and Respondent as they were below, although the present appeal is brought by the Respondent.

 

Factual Background

2.                  The Claimants started work with the Respondent on 29 April 2013.  They were employed as Management of Police Information (“MOPI”) Reviewers within the Information Management Department of the British Transport Police at Cardiff.  On 29 September 2014 their claim was presented in the Employment Tribunal.  Attached to the form ET1 was the original Particulars of Claim.  At that time, the Claimants were still employed by the Respondent although suspended; therefore, there was no claim at that time for unfair dismissal.  The claim was brought in respect of detriments alleged to have been suffered by reason of the Claimants’ making protected disclosures (colloquially known as whistleblowing).  The legislation that was said to be relied upon was incorrectly said to be section 103A of the Employment Rights Act 1996 (“ERA”), although nothing turns on that point; subsequently, that was corrected to the right provision, which was section 47B of the same Act, and also by reference to section 43.

 

3.                  In essence, the allegation in the Particulars of Claim was that the Claimants were required pursuant to their job description to undertake a review of the Respondent’s records in accordance with guidance furnished by the Association of Chief Police Officers on the management of police information so as to ensure that the records remain necessary for a policing purpose, are adequate, up to date and compliant with relevant legislation minimising the risk of reputational damage.  There appears to be a typographical error in the spelling of “reputational”, but that does not matter.  The MOPI reviewers’ duties were to obtain, verify and research information stored to ensure that the records met operational and national requirements, thereby upholding the integrity of the Respondent and avoiding litigation liabilities against it.  This included assessing risk and wider compliance with the data protection principles.

 

4.                  It was alleged in the Particulars of Claim that the Claimants became aware of personal data that was retained by the Respondent on the force intelligence system but which had persistent and recurring failings.  It was further alleged that:

“The Claimant [sic] brought these failings to the attention of his [sic] superiors on numerous occasions, but they were not addressed.”

 

5.                  I should interpose at this stage that the Particulars of Claim were and remain somewhat difficult to understand because at times they use the singular to refer to one Claimant and at other times refer to the Claimants in a plural form.  Certainly, there were before the Employment Tribunal and are before this Appeal Tribunal three Claimants, as I understand it.  In any event, the Particulars of Claim went on to make allegations about a meeting that was held on 8 April 2014 and also said that matters came to a head in July 2014 when there was a further meeting.  It was then alleged that as a result of this disclosure (in July 2014, that must be, although again there is a typographical error in the pleading there):

“… the claimant complied with [the Respondent’s] policy, following the [Respondent’s] whistle blowing procedure … and the Public Interest Disclosure Act, and made a Public Interest Disclosure to Her Majesty’s Inspectorate of Constabulary.”

 

6.                  Then there appeared a heading in the pleading “Detriment Caused”.  Under that heading it was alleged that the Claimant was subjected to six specific detriments arising from the protected disclosure.  They were then numbered in Roman numerals (i) to (vi).  One of those, at (v), was that on 14 August 2014 the Claimants were formally issued with a notice of suspension in relation to an investigation.

 

7.                  There was filed in response to the claim a form ET3 by the Respondent.  At paragraph 5 of that document under the heading “Preliminary Issues” it was said:

“The Respondent contends that the Claimants have not properly particularised their claims.  In particular, the Claimants have not set out the details relating to the protected disclosure(s) relied upon for the purposes of their whistleblowing claim; they have not stated what qualifying disclosure they made, when they made it, to whom it was made, and by what means. …”

 

8.                  It was then agreed that there should be an agenda for a Preliminary Hearing.  That agreed agenda included at section 2 the following.  At box numbered 2.1 it was made clear that the claims for detriments were made pursuant to section 47B of the ERA 1996.  At box numbered 2.2 it was made clear that the Claimants wished to amend their claims to include a claim for constructive dismissal.  That was because in the meantime on 24 October 2014 the Claimants had resigned.  They assert that those resignations were in response to the conduct of the Respondent.  They submit that their resignations amounted to constructive dismissal and further that those dismissals were automatically unfair because they were taken for reasons that are prohibited by the legislation on protected disclosures.  At box numbered 2.3 it was said that the Claimants needed to set out additional information about both the protected disclosures relied upon and the detriments caused:

“… [The Claimant] is [sic] requested to provide the information below in advance of the PH so issues can be agreed.”

 

9.                  Those were as to the alleged protected disclosures, and there then followed a series of six questions.  It was also asked in relation to the alleged detriments what the answers were to a series of some three questions.

 

10.              The issues were set out at box numbered 4.1 so far as it was possible at that time to do so, but it was made clear that there were going to be further issues in the light of the further information to be provided.  Again, at box numbered 4.2 it was said on behalf of the Respondent that it could not be determined now which preliminary issues could be added at this stage because the Claimants’ claims were said not to be clear and not to be properly particularised.

 

11.              The first telephone Preliminary Hearing took place on 1 December 2014 and was conducted by Employment Judge Davies.  At paragraph 2 of the notes of that hearing it was recorded that the Claimants complained of detriment on the grounds of public interest disclosure under section 47B of the 1996 Act.  It was said that the claims “require some further particularisation”.  It was noted at paragraph 3 that the Claimants had made an application to amend to include claims of automatic constructive unfair dismissal under section 103A of the 1996 Act.  No objection was made to that application, which was made within time.  Therefore, the claims were amended to include those claims.  It was also said at paragraph 4 that the matter would not be listed for hearing until the claims had been further particularised to enable identification of relevant witnesses.  It was said, “At present it is estimated that a 5-6 day hearing will be required”.  Then at paragraph 5 some directions were made, which were themselves numbered:

“1. No later than 15 December 2014 the claimants to serve an amended ET1 which identifies (by means of strike out and/or underline) the amendments made to the document.

2. No later than 15 December 2014 the claimants to provide “Scott Schedules” in respect of their detriment (s47B ERA) and constructive unfair dismissal (s103A ERA) claims.  The Scott Schedules must include the information specified at point 2.3 on the agreed agenda for this preliminary hearing [which I have already mentioned but which needs to be read in full in conjunction with this Judgment] as well information [sic] relevant to the s 103A ERA claims (ie details of the nature of the breach of contract relied upon).

…”

 

12.              Following that Preliminary Hearing, on 12 December 2014 solicitors acting for the Claimants sent by email what they described as a response to the Respondent’s request for additional information “as per our agreed agenda and court order”.  In fact, it would appear that it was not as per the Order of the Employment Tribunal.  It certainly did not take the form of the Scott Schedule that had been required.  It set out a number of matters that the Claimants asserted, including allegations of fact going well back in time, much earlier than the specific matters that had been set out expressly in the Particulars of Claim going back to 2013.  That document was clearly drafted by counsel, whose name appeared at the end of it.

 

13.              Subsequently, on 16 December 2014 - not quite within the time specified in the Tribunal’s directions - the solicitors acting on behalf of the Claimants emailed amended Particulars of Claim and a Scott Schedule.  The amended Particulars of Claim included the claim for constructive dismissal, clearly underlined as required by the Employment Tribunal’s directions.  The section on “Protected Disclosure” was left unamended.  It still included the sentence:

“The Claimant [sic] brought these failings to the attention of his [sic] superiors on numerous occasions, but they were not addressed.”

 

14.              The section on “Detriment Caused” was amended, again with appropriate underlining, to make it clear that there were two further sub-paragraphs with Roman numerals (vii) and (viii) added.  Unsurprisingly, these were properly amendments to the earlier Particulars of Claim because they concerned events that had not then taken place; namely an interview under caution on 23 September 2014 and the resignations on 24 October 2014 that I have mentioned.  There then appeared a new heading, “Constructive Dismissal”, in which it was alleged that:

“The detriment as particularised above caused the Claimant [sic] to reasonably believe that continuation of employment is impossible, and as a result he [sic] handed in his [sic] resignation on the 24th October 2014.

The Claimant [sic] will say that his [sic] resignation was as a direct result of a breach of the implied term of trust and confidence between the respondent and the claimant [sic], caused by his [sic] whistleblowing, and the conduct of the respondent towards him [sic] in the months that followed.”

 

In conclusion, this passage said:

“Accordingly the Claimant [sic] also claims that he has [sic] been constructively dismissed by the respondent.”

 

15.              In my judgment, it is clear on the face of the Particulars of Claim even as amended that what was being relied upon as the events that led to the Claimants’ resignations and therefore the alleged constructive dismissal was the matters that had been expressly pleaded in that document itself, hence the use of the words “as particularised above”.  It is also to be noted that what was said was that the Claimants resigned as a direct result of a breach of the implied term of trust and confidence “caused by his [sic] whistleblowing, and the conduct of the respondent towards him [sic] in the months that followed”.  As I have already said, the section of the Particulars of Claim headed “Protected Disclosure” did not appear in any amended form.

 

16.              There was at the same time served a document that purported to be a Scott Schedule.  This was a document that in section B, which was headed “Chronology of Disclosures”, made a number of allegations going back at least to June 2013.  A number of specific events were then described, none of which had been mentioned as such in the Particulars of Claim either as originally drafted or as amended.  In any event, as was subsequently conceded on behalf of the Claimants, the Scott Schedule in its original form was in the wrong format and had to be redone.

17.              On 26 January 2015 the second telephone Preliminary Hearing in this case took place, this time before Employment Judge Harper.  In fact, it was not possible to make any useful progress at that Preliminary Hearing in view of the way in which the Claimants had up to then set out their case (see paragraph 2 of the Reasons sent to the parties on 30 January 2015).  The outcome was that there was directed to be a further telephone Preliminary Hearing in the week commencing 9 March 2015 at which the items to be considered would include the Claimants’ proposed application for permission to amend the claims.  It was also ordered that the Claimants were to serve an amended Scott Schedule and any application to amend on the Respondent with a copy to the Tribunal by 9 February 2015.  At paragraph 1 of his Reasons Employment Judge Harper said:

“1. … The Scott Schedule which has been prepared by the claimants is woefully inadequate and does not follow the normal format … In addition in the ET1 only two disclosures are relied upon whereas the purported Scott Schedule prepared relies on substantially more allegations without any application for leave to amend having been made.”

 

18.              Those two disclosures, as I understand it and as in my view is plain from the terms of the Particulars of Claim even as amended, related to the events alleged to have taken place in April and July 2014.  It was for that reason, no doubt, and, in my judgment, entirely correctly, that Employment Judge Harper took the view that the purported Scott Schedule relied on substantially more allegations and yet there was no application for leave to amend, which had yet to be made.

 

19.              On 9 February 2015 the Claimants or their representatives purported to send the relevant documents, but in fact neither was received by the Respondent or the Employment Tribunal.  In any event, on 10 February 2015 a revised Scott Schedule was served.  This was in the usual landscape format with a number of columns across the page.  The Respondent has criticised it before me as still being confused, confusing and inadequately particularised.  Further, the Respondent submits that a number of items are mentioned in it that were not even flagged previously in the document in December 2014 that purported to be a response to the Respondent’s request for additional information.

 

20.              On 9 March 2014 the third telephone Preliminary Hearing took place in this case, this time before Employment Judge Beard.  Again, it was not possible to make substantial progress, in particular because it was accepted by counsel on behalf of the Claimants that the application to amend that she prepared on 9 February 2015 had not been sent to either the Tribunal or the Respondent.  Issues as to what should happen to the wasted costs then arose; those need not be rehearsed here and are not the subject of the present appeal, although Orders were made in relation to wasted costs by Employment Judge Cadney in the decision that is otherwise under appeal on 8 April 2015.

 

21.              In the Order made by Employment Judge Beard it was directed that there should be a Preliminary Hearing, this time in person, in the week of 8 April 2015.  Directions were also made that by 16 March 2015:

“2. … the claimants are, if so advised, to serve upon the tribunal and respondent any application to amend their claims (confined to matters already set out in the Scott Schedule exchanged on 9 February 2015) and supported by a summary of the argument that will be advanced individually for each of the items set out in the Scott schedule, save for items 13 and 19 which the respondent accepts do not require amendment.  If the claimant contends [sic] that any particular item is already part of the pleaded case and does not require an amendment, the same should be made clear as part of the summary argument.”

 

22.              In the body of his reasoning in support of that Order Employment Judge Beard said:

“… I am of the view that the claimants’ application to amend requires a substantive deliberation.  The prejudice to the claimants is that significant aspects of their case could be lost if they do not have the opportunity to argue for their inclusion.  The prejudice to the respondent, if the claimants are correct and they have been aware of the detail of the amendment and the fact that it forms part of the claimants’ cases for some time, is one of additional cost.  Further, it may be that some of the matters set out in the Scott Schedule are already parts of the pleaded case.  This will be so if the response to the request for further information is, properly considered, an expansion on existing information within the ET1.  For all of those reasons I consider that it may cause an injustice to the claimants if they were not allowed to pursue an amendment argument.  Conversely any injustice to the respondent can be met by costs or wasted costs order if it is appropriate to make one. …”

23.              The Claimants through counsel then served a skeleton argument in respect of proposed amendments to the claim dated 16 March 2015.  They set out some of the procedural history.  At paragraph 4 the skeleton argument said that following the aborted hearing on 26 January 2015 the Scott Schedule was redrafted and served on 9 February, and it was said that that Scott Schedule contained the information set out in the response to additional information dated 5 December 2015 and the original albeit inadequate Scott Schedule.  I accept the Respondent’s submission, having been shown some of the detail comparing those respective documents, that that statement was not entirely accurate.  In particular, the revised Scott Schedule contains some matters that were new and had not been foreshadowed in the response to additional information document.  The skeleton argument continued at paragraph 5 that:

“… as the information was requested by the Respondents in November, provided to them in December and was the subject of an order of the Tribunal to be put into a Scott Schedule, it is submitted that the contents of the schedule should be treated as an expansion of the pleaded case, and that an application to amend is not required.”

 

24.              However, as a fallback position should that submission be rejected, the Claimants’ skeleton argument submitted at paragraph 7 that the application they made was to amend the Particulars of Claim “to include and adopt in detail the instances of Protected disclosures set out in the Scott Schedule”.  It was submitted that these were not new claims but went to the clarification of the assertion in the original Particulars of Claim, which I have already quoted, that the Claimants “brought these failings to the attention of the Respondent’s [sic] on numerous occasions”.  The Claimants’ skeleton argument referred in terms to the Judgment of this Appeal Tribunal in Selkent Bus Co Ltd v Moore [1996] ICR 836 (see paragraph 8 of the skeleton argument).

 

 

 

The Employment Tribunal’s Decision

25.              I come now to the decision of the Employment Tribunal that is under appeal.  For relevant purposes, there were two decisions in the Order made by Employment Judge Cadney on 8 April 2015 that are now under appeal.  The first Order was that no further order or permission was necessary for the Claimants to rely upon the matters set out in the Scott Schedule in support of their claims for constructive dismissal.  The second Order was that permission was granted to the Claimants to amend their claims to rely on the matters set out in the Scott Schedule in support of their claims for public interest disclosure pre-termination detriment.

 

26.              The procedural history was set out in the course of the Employment Judge’s Reasons.  At paragraph 10 it was said by way of summary of the Claimants’ submissions:

“10. The claimant’s [sic] primary position is that no application for permission to amend is required, that all that the Scott Schedule seeks to do is to provide clarification and detail of a claim which is already before the tribunal and in particular the claimant points [sic] to the sentence referred to … in it’s [sic] Particulars of Claim “The claimant [sic] brought these failings to the attention of his [sic] superiors on numerous occasions but they were not addressed”.  The claimant submits [sic] therefore that it is apparent from the existing pleadings that there were further disclosures which were not explicitly and individually identified in the pleadings and that all that the Scott Schedule does is to make explicit what is implicit, that there were further disclosures and that therefore no amendment is required.”

 

27.              At paragraph 11 it was recorded that the Respondent’s submission was that that sentence in the Particulars of Claim was insufficient to bear the weight that the Claimants sought to place upon it and that in fact a Scott Schedule that identified some 22 specific disclosures, had increased the number of detriments from six to nine and covered a period of some 18 months as opposed to the original six months bore no relation to the factual basis set out in the original claim.  It was therefore submitted on behalf of the Respondent that there had to be permission to amend the Particulars of Claim if the case were to proceed.

 

28.              At paragraph 12 Employment Judge Cadney said that he was going to approach the question slightly differently from the way he had been addressed by either of the parties.  He said, “The first question appears to me to be what is it that requires amendment?”  Since they are central to the present appeal, it is necessary now to set out the following two paragraphs in the Employment Judge’s reasoning in full.  First, paragraph 13 relates to the claim for constructive dismissal:

“13. Referring back to the order of Employment Judge S Davies of 1^st December 2014, she firstly gave permission to amend the claims to include claims under section 103a [sic] in respect of the constructive dismissal claims, and secondly … gave specific directions that the Scott Schedule itself should include the information relevant to the section 103 ERA claims i.e. details of the nature of the breach of contract relied upon.  It was clearly perfectly sensible in December for that constructive dismissal claim to be presented by way of amendment to the existing claim, although had objection been made it could clearly have been presented as a new claim as it was obviously in time.  It was and it is in my judgment eminently sensible for it to be directed that details of the basis of that claim be set out, and well within the employment judge’s discretion to direct that that should be done in the form of a Scott Schedule.  It appears to me therefore that in relation to the constructive dismissal claim, no question of amendment arises.  All that has happened is that permission to amend has been granted, directions as to the particularisation of that claim have been given and that particularisation has been provided.  Looked at the other way, if this claim had been presented by the claimant [sic] as a new claim, what power would the tribunal have to artificially limit the basis of that claim and to prevent the claimants from relying upon all the matters they seek to rely upon in support of that claim.  It appears to me that the tribunal would have no such power if this were presented as a new claim, and I can see no basis for saying that the tribunal does have such a power simply on the basis that it was added by way of amendment.”

 

Secondly, paragraph 14 relates to the other aspect of this case, the pre-termination detriments alleged:

“14. It appears to me therefore that the only claim which could possibly require amendment is the claim for pre-termination detriment and that it follows automatically that the question for amendment in respect of pre-termination detriment must be considered in a slightly different light from that which the parties advanced before me.  If I am correct that the constructive dismissal claim did not require any further amendment or any further permission other than that given by Employment Judge Davies, it follows that the context in which any application to amend the pre-termination detriment claim is that all of the matters relied upon as pre-termination detriments will already be before the tribunal as part of the constructive dismissal claim, they will need to be met by the respondent in any event and therefore allowing the amendment will in fact add nothing to the claims which are already before the tribunal.  It follows that in my judgment on that basis there can be little prejudice to the respondent in allowing the amendment, which I accept is necessary as I accept the respondents submissions [sic] that the original pleading is not capable of bearing the weight the claimants seek to place upon it.  In the circumstances given that there can be little or no prejudice to the respondent in allowing the amendment, in my judgment the amendment in relation to the pre-termination detriment claims should be allowed and that the permission will be given for the claim to be amended in the form of the existing Scott Schedule.”

 

29.              At this stage it can be seen that two things are clear from the terms of paragraph 14: first, that it was a premise of the reasoning in that paragraph that the Employment Judge was correct in relation to the constructive dismissal claim:

“… If I am correct that the constructive dismissal claim did not require any further amendment or any further permission …”

 

30.              Secondly, and flowing from that first point, the Employment Judge was of the view that the extensive matters set out in the Scott Schedule relating to alleged pre-termination detriments would in any event substantially be before the Tribunal when the constructive dismissal claim had to be considered by it.

 

Material Legislation

31.              It is common ground before me that the power that the Employment Judge was exercising in the present context was the general case management power in Rule 29 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013, Schedule 1.  As is also common ground, that is a broadly worded discretionary power.  For example, the second sentence makes clear, “The particular powers identified in the following rules do not restrict that general power”; that is, the power to make at any stage of the proceedings on its own initiative or on application a case management Order.

 

Relevant Legal Principles

32.              In view of the fact that this case concerns what it is common ground is a broad discretionary power relating to case management, it is also common ground before me that there is a high threshold before any appeal to this Appeal Tribunal can succeed.  My attention was drawn to the recent decision of HHJ Eady QC in Kuznetsov v Royal Bank of Scotland UKEAT/0089/15, in which at paragraph 37 she stated:

“37. Where an ET is exercising a judicial discretion, it will not be open to an appellate court to interfere with the decision reached unless it is properly to be characterised as perverse or the ET failed to take into account that which was relevant or took into account that which was irrelevant (see Bastick v James Lane (Turf Accountants Ltd [1979] ICR 778 EAT, approved in Carter v Credit Change Ltd [1979] ICR 908 CA).”

 

33.              However, it was also common ground before me that there are important observations that were made by the President of this Appeal Tribunal, Langstaff J, in Chandhok and Anor v Tirkey [2015] IRLR 195 at paragraphs 16 to 18.  They are set out, so far as material, and quoted by HHJ Eady QC at paragraph 39 of her Judgment in Kuznetsov.  It is unnecessary for present purposes to lengthen this Judgment by setting them out in full, but they are important and should be treated as if they were part of this Judgment.

 

34.              I have already referred to the well known decision of this Appeal Tribunal in Selkent.  It is, however, necessary now to set out the material passage in the Judgment of Mummery J, as he then was, at pages 843 to 844.  This Appeal Tribunal was there considering the discretion to permit an amendment to be made by the Employment Tribunal.  In the material passage Mummery J said that (sub-paragraph (4)):

“(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.”

 

In his sub-paragraph (5) of the relevant principles he posed the question:

“(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 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, 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.”

 

35.              To that I would add simply this.  If anything, it is clear that in the years that have since passed Tribunals are now subject, as are the ordinary civil courts, to the overriding objective.  We have become, if anything, more alive in the years that have passed to the need to keep litigation within sensible bounds and to keep costs proportionate, and we have also become well used to the trite point that when judicial resources have to be used in relation to one case then there can be a diversion of resources that might otherwise have been used to deal with other cases and that that can lead to delay in the resolution of other disputes and potentially injustice to others.

 

36.              These are all considerations that echo, in my view, the salutary guidance that was given by the President of this Appeal Tribunal in Chandhok in the passage to which I have referred.  In particular, as Langstaff J emphasised at paragraph 16 of that Judgment:

“16. … The claim, as set out in the ET1, is not something just to set the ball rolling, as an initial document necessary to comply with time limits but which is otherwise free to be augmented by whatever the parties choose to add … ”

 

As he went on to say in the same passage, regarding the claim as set out in the ET1, which is a formal claim and which “sets out the essential case.  It is that to which a Respondent is required to respond”.

 

37.              Finally in the citation of authority, my attention has been drawn to the recent decision of this Appeal Tribunal in Remploy Ltd v Abbott and Ors UKEAT/0405/14, in which the Judgment was given by HHJ Serota QC sitting alone.  In the helpful summary of that Judgment at paragraph 6 it is recorded that the Appeal Tribunal held that the Employment Judge had fallen into error in part by allowing amendments that had not been fully formulated or particularised and by considering them together rather than examining each proposed amendment separately.  It was further said in summary that without properly formulated and particularised draft amendments it was impossible for the Employment Tribunal or the Respondent to consider how the amendments would affect the existing case management model.  My attention was drawn specifically to paragraph 87 in the Judgment, where HHJ Serota QC said:

“87. The Employment Tribunal should have looked at each proposed amendment separately rather than lumping them all together and should have addressed the evidence of Ms Goldsbrough.  These amendments, as can be seen, are not particularised as they should have been before permission to amend could have been granted.  In the absence of particularised amendments it was impossible for the Employment Tribunal or for the Respondent to consider the effect of those amendments, in particular in relation to previous case management and whether the timetable for the hearing would be affected. …”

 

The Grounds of Appeal

38.              On behalf of the Respondent there are three grounds of appeal that are advanced, although it is accepted that to a large extent they overlap.  First, it is submitted that the Employment Judge failed to identify the Particulars relied upon by the Claimants for the constructive unfair dismissal and also the pre-termination detriment claim in the first place.  This is described as the “Particulars ground”.  Secondly, it is submitted that the Employment Judge erroneously concluded that the factual matters relied upon by the Claimants for the claims were all the same.  This has been described as the “conflation ground”.  Thirdly, it is submitted that the Employment Judge did not therefore correctly approach the issue of amendment on the right legal basis.  This is described as the “Selkent ground”.

39.              In essence, it is submitted by the Respondent that the Employment Judge failed to take into account all relevant factors and/or came to a conclusion that no reasonable Employment Tribunal on a proper appreciation of the evidence and the law could have reached - in other words, that there was an error in the approach that the Employment Judge took to the exercise of his undoubted discretion - or, alternatively, that the conclusion that he reached was perverse.

 

40.              In support of those submissions, in helpful written and oral arguments, it has further been submitted to me that the situation in which the parties and indeed the Employment Tribunal now find themselves is one where the claims are apparently set out in different documents that are not properly particularised and it is not clear what exact allegations are being made against whom and in relation to what time, and it is therefore said that it is not reasonably possible for the Respondent to know which witnesses will be required.  Finally, it is submitted that this is a recipe for procedural chaos because the original time estimate for a Full Hearing of five to six days may well be a substantial underestimate and that perhaps a three-week hearing may be required.  It is also said that that increase would be disproportionate in terms of time, costs and potential compensation.

 

The Claimants’ Response

41.              On behalf of the Claimants it is submitted that the Employment Judge was exercising, as is common ground, a broad discretionary power of case management.  It is submitted that he was well aware of all of the relevant circumstances and that he did not fall into any error of law in the approach that he took to the exercise of his discretion.  It is further submitted that his conclusion cannot be regarded as perverse.  It is accepted that he did not specifically refer to the Selkent matters, but it is said that his reasoning at paragraphs 13 and 14 is clear and that in paragraph 14 he at least implicitly dealt with everything that he had to in accordance with the Selkent decision.

 

Discussion

42.              In my judgment, the Employment Judge did fall into error as a matter of law.  The claim for constructive dismissal, in my judgment, did require a further amendment to be sought and, if appropriate, granted before the Claimants should have been permitted to rely upon the very extensive matters set out in the revised Scott Schedule.  As I have said in describing the procedural history of this case by reference both to the original Particulars of Claim and the amended version of that pleading, the case that the Respondent had to meet and that therefore the Employment Tribunal had to decide was set out within relatively narrow bounds.  At most, what the pleading did even after its amendment pursuant to an Order of the Employment Tribunal and therefore after due consideration must have been given to the question of what was needed to add the claim for constructive dismissal was to repeat without any amendment the assertion in the most general of terms that:

“The Claimant [sic] brought these failings to the attention of his [sic] superiors on numerous occasions, but they were not addressed.”

 

43.              It is now clear that the substance of the Claimants’ case to be made to the Employment Tribunal is that there was in fact a much longer history, extending back to at least June 2013, and that many more incidents would be relied upon.  By way of claiming that the Claimants were subjected to detriments arising from protected disclosures and that therefore they were constructively dismissed when they chose to resign in response to that conduct by the Respondent, in my judgment it is plain that that required a further amendment to the Particulars of Claim if it was to be permitted to proceed at all.

 

44.              It follows, therefore, that the Employment Judge erred in law in his reasoning at paragraph 13.  He did not exercise a discretionary power at that stage, because he concluded that the discretion did not arise.  This inevitably means that the Employment Judge never considered the Selkent questions, because he did not think that they arose when he was considering the issue relating to the constructive dismissal part of the case at paragraph 13 of his Reasons.

 

45.              However, this error of law, in my judgment, has a further importance.  As I have made clear in my citation of the Employment Judge’s Reasons, it provided the springboard for his reasoning at paragraph 14, which related to the other part of the case; that is, pre-termination detriment.  The two cannot therefore be excised one from the other.  The error of law that, in my judgment, he fell into at paragraph 13 of his Reasons continued to taint the exercise of his discretion at paragraph 14 of his Reasons.  Furthermore and in any event, in my judgment, at paragraph 14 of his Reasons, quite apart from the error of law that I have already mentioned, the Employment Judge failed to ask the right questions as he was required to do by Selkent.  I do not accept the submission made on behalf of the Claimants that such can be read as being implicit in his reasoning.

 

46.              In those circumstances, the Respondent invites me to come to the view that since there was an error of law in the approach to the exercise of the discretionary case management power this Appeal Tribunal can and should in the circumstances of this case exercise that discretion afresh for itself.  It is submitted on behalf of the Respondent that this is one of those cases where the conventional approach, which is to remit the matter to the Employment Tribunal, need not be and should not be adopted.  My attention is drawn to the decision of the Court of Appeal in Burrell v Micheldever Tyre Services Ltd [2014] ICR 935, in particular in the Judgment of Maurice Kay LJ at paragraph 20.

 

47.              Undoubtedly, as is apparent from that and other cases, there can be cases in which that is the appropriate approach for an Appeal Tribunal or court to take.  However, in my judgment, in the circumstances of this case it is not one that I should take.  I bear in mind that this was not, for example, a final Judgment on the substance of a claim before the Employment Tribunal, but an interlocutory case management decision, which is very much a fact sensitive exercise of discretion.  I also bear in mind that there would need to be, in my view, further and full argument before the Employment Tribunal if it takes the correct approach in law, as I think it must, in accordance with this Judgment.  In particular, that would mean that there would have to be full argument on the question of the constructive dismissal part of the case and what if any amendments should be permitted to take place in relation to that.  In my judgment also, the Selkent questions have not been properly and fully addressed to date, and they need to be addressed correctly as a matter of law in accordance with the Judgment of this Appeal Tribunal.  Those are, in my judgment, matters that are at least in the circumstances in this case best left to the judgment of the first instance Tribunal, which is well used to exercising such case management powers.

 

48.              That then leaves this remaining question: if the matter is to be remitted to the Employment Tribunal, should it be remitted to the same Employment Judge or to a different Judge?  Again, these matters are essentially fact sensitive and depend on the circumstances of each case.  In the circumstances of the present case, having heard argument on this issue by both parties, I have come to the conclusion that the case should be remitted to a different Employment Judge.  In my view, the Employment Judge in the present case fell into a fundamental error of approach as to the exercise of his discretion, for the reasons that I have already set out in this Judgment.  Because of the relatively limited nature of the hearing that has so far taken place and because this Employment Judge was merely one of four who have so far dealt with this case on interlocutory matters, it does not seem to me that there is any particular advantage in insisting that he must deal with the remitted hearing compared to any other Employment Judge.  This is not a case, for example, where there had been many days of evidence, findings of fact made by the Employment Tribunal and a substantive decision reached on the claim before it.  In all the circumstances of the case, therefore, I propose to remit the matter to a different Employment Judge.

 

Conclusion

49.              For the reasons that I have given, this appeal by the Respondent is allowed.  The matter will be remitted to the Employment Tribunal to be considered by a different Employment Judge.