At the Tribunal | |
On 4 June 2020 | |
Before
THE HONOURABLE MR JUSTICE KERR
(SITTING ALONE)
APPELLANT | |
MR CHRIS RODWAY AND OTHERS |
RESPONDENT |
For the Appellant | MR PAUL GOTT QC (of Counsel) Instructed by: Eversheds Sutherland (International) LLP, 1 Wood Street, London EC2V 7WS |
For the Respondents | MR NICHOLAS TOMS (of Counsel) Instructed by: Thompsons Solicitors LLP, Condor House, 5-10 St Paul's Churchyard, London EC4M 8AL |
SUMMARY
BLACKLISTING REGULATIONS
JURISDICTIONAL POINTS Extension of time: just and equitable
PRACTICE AND PROCEDURE Amendment
PRACTICE AND PROCEDURE Striking out/dismissal
It had not been open to an employment judge to decide that the claimants merely sought to re-label their claims when seeking an amendment to claims alleging discrimination on the ground of religion and belief and non-payment of holiday pay. The amendment sought to introduce, based on largely but not entirely the same facts, claims for compensation for breach of the Employment Act 1999 (Blacklisting) Regulations 2010 (the 2010 Regulations).
When applying the well known Selkent guidelines, the judge had correctly discerned that the factual basis of the claims was largely unchanged, other than by developments since they were originally presented; but she failed to take into account the substantial differences between the nature of the causes of action asserted in the original claims and those advanced in the draft amended claims; and, in consequence, the change in the remedies sought.
A claim under the 2010 Regulations requires the existence and use of a prohibited list. The cause of action is a form of discrimination quite unlike discrimination on the ground of religion or belief. The initial claims appeared to rely on non-payment of holiday pay but did not, unlike the draft amended claims, make clear that the remedy sought in respect of the non-payment was not the payment of the sums due but compensation for breach of the 2010 Regulations.
The judge had also omitted to address the respondent's contention that the claims, as originally presented, had been brought out of time. Although she had appreciated that the Selkent guidelines included consideration of time limits, she had considered the time limits issue on the basis that it was appropriate to treat the original claims as having been made under the 2010 Regulations at the time they were presented.
The judge's exercise of discretion to allow the amendment was therefore flawed. The application for permission to amend the claims would be remitted for reconsideration by a different employment judge. Time limits would also need to be revisited as part of the reconsideration exercise, including consideration of whether the claims as originally presented had been brought out of time.
THE HONOURABLE MR JUSTICE KERR
Introduction
The Facts
"will (without prejudice to our rights) withhold payment of any backdated holiday pay from conductors. Any conductors who have either worked normally during the dispute, or confirm that they will now work normally during the remainder of the dispute and will not participate in further industrial action, will receive payment ."
"in return for GTR releasing to me early a payment in respect of backdated holiday pay, I undertake to GTR that I will not take part in any more strikes or industrial action called by the RMT in this dispute [and] will work all my rostered hours during this dispute."
"Every other grade employed by the respondent has been paid this money except one group of People. Included in this group are the applicants to this claim. They are employed by the respondent as Conductors, Conductors Instructors and On Board Service Supervisors.
Since April 2016 this group have been involved in a legal Trade dispute with the employer and have taken Strike Action.
This Strike Action has been lawful under current legislation, the applicants have been subjected to many forms of harassment and bullying by the Respondent because they have supported the Strike action called by their Trade Union the RMT.
This has included withholding of the Payment agreed under the bargaining machinery, in relation to this claim.
The respondent has made it clear that they will not be fulfilling their obligations to the agreement until each of the applicants signs a pledge not to participate in any action called for by their Trade Union in relation to the dispute
Not only does this violate the respondents obligations under the agreed bargaining machinery but by continuing with this discrimination they are in breech [sic] of the following
Freedom Of Association under Article 11 of European Convention on Human Rights
1996 Employment Rights Act"
The remedy sought was compensation and a "recommendation", which can be claimed only "if claiming discrimination" (in the words of the ET 1 template).
"The tribunal is referred to the Presidential Guidance based on the Selkent guidelines. These are substantial amendments (essentially the substitution of the original case for a new case). There is no hardship to the Claimants if the amendment is refused because the Claimants have received the HPA [Holiday Pay Agreement] money. There is substantial hardship for the Respondents in dealing with multiple claims in relation to matters that have now been satisfied. The original claims were out of time and the amendment application is even more out of time. The Claimants have not taken any of the ample opportunities to explain why their amendment application was made at the time and in the manner that it was."
The Judge's Decision
"It was stated that this application to amend changed the entire nature of the claim. there was no hardship to the Claimants as they had already been paid their holiday pay but substantial hardship for the Respondent. The respondent stated that the time limit issue and the amendment should be taken together. Time limits were relevant but not determinative. On the ET1 there is no reference to blacklists, the Claimant has not identified what is relied on under Regulation 3(2) or what that might be (in relation to prohibited lists), there is no reference to a detriment. The Respondent stated that the test is in Selkent and it is about a single (historical payment)."
" has not changed, it remains precisely as set out in Box 8.2, the only difference being the clarification of the correct legislative position which was consistent with the factual basis of the claim form. The only incongruity was the box ticked for religion and belief. The Claimant clarified the claims after a case management hearing on the 6 March 2018 and provided clarification of his claims on the 16 April 2018. I conclude that this amendment should be allowed."
"There appeared to be no detriment caused to the Respondent by any delay in pursuing the application to amend and no evidence that the Respondent was prejudiced by the delay in considering this application or by granting the application."
Grounds of Appeal (Amended)
First and second grounds: amendment; failure to follow Selkent guidelines or give adequate reasons; perversity
"not on questions of formal classification but on the extent to which the new pleading is likely to involve substantially different areas of inquiry than the old: the greater the difference between the factual and legal issues raised by the new claim and by the old, the less likely it is that it will be permitted "
Third, fourth and fifth grounds: time limits; internal contradiction in reasoning; act extending over a period; failure to engage with the arguments
Remedy