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Welcome to the Newsletter of the Cobden House Chambers Employment Team. In this issue, we have focused on amendments to the ET1 and ET3




Amendment

A tribunal only has jurisdiction to decide complaints put before it.

However, parties to proceedings can apply to amend the proceedings, even if this involves adding a new claim or a new respondent.

Following the 1996 EAT case of Selkent BusCo Limited v Moore, the Tribunal must exercise its discretion to amend judicially.  This means that it must take into account all the circumstances of the application, including:

  • the nature of the amendment;
  • the timing and manner of the application;
  • any relevant time limits; and
  • the balance of hardship and injustice between the claimant and the respondent.

Over the last year, the EAT has refined these principles in a number of cases on amendments.  Here is a summary of the principles that can be derived from the recent cases, and a short summary of the cases themselves:

  • Applications for amendments should be made as soon as possible.
  • Applications for amendment should be specific.
  • Tribunals should consider whether the proposed amendment would cause any specific prejudice to the respondent.
  • Where the facts of a claim have already been pleaded, and where the evidence required to deal with the new claim is already likely to be considered by the Tribunal, an application is more likely to succeed.

Joao v Mesh Computers Plc

Mr Joao brought a claim of racial discrimination against his employer. Acting in person, Mr Joao submitted an ET1 which set out the entire chain of events and sought compensation for, among other things, “loss of employment”.  On his ET1, he ticked a box to indicate that it was not an unfair dismissal claim, but nonetheless the Tribunal office coded it as such.  Mesh’s Response dealt with the case as a victimisation and unfair dismissal case.  At the hearing, the Tribunal decided that there was no unfair dismissal claim before it and refused Joao's application to amend the claim as out of time.

The EAT allowed the amendment and remitted the case for a fresh hearing, stating that:

  • Where a claim arose out of facts already pleaded, it should not be subject to the usual degree of rigorous scrutiny inrespect of relevant time limits
  • A degree of caution is required in assessing a late application to amend, in circumstances where until the first day of the hearing, both the Tribunal and the Respondent had proceeded on the basis that the Claimant’s claims included a claim for unfair dismissal.

Haldane v Highland Council

H appealed against an employment tribunal's refusal of her application to amend her sex discrimination claim to include a complaint of victimisation.  H had issued proceedings in November 2003 and later applied to the tribunal to amend the claim.  In June 2004, the tribunal chairman decided it was inappropriate to consider the application while the grievance procedure was ongoing.  Only in July 2007, and at the tribunal's request, did H set out the basis for her application.  The local authority argued that H's case lacked in detail.  TheTribunal refused the application, as any hearing of the victimisation claim would be nearly five years after the incidents complained of, and as there was no adequate explanation of why H had allowed the amendment issue to remain unresolved for several years.

The EAT (SC) refused the appeal and concluded that, in the circumstances:

  • H should have pursued the issue of amendment sooner.
  • The proposed amendment was not sufficiently specific.

Evershed v New Star Asset Management

E appealed against a decision to refuse him permission to amend his claim.  E issued his claim for constructive unfair dismissal, but later applied to amend his claim form to include a whistleblowing claim. The application was refused, on the basis that the amendment raised a new cause of action which would require wholly different evidence, that no grievance had been raised concerning his suspension or a protected disclosure, and that there would be prejudice to N due to the further expense of a longer hearing.

The EAT allowed the application to amendand stated that:

  • If the amendment were allowed, the tribunal would have to consider whether there was protected disclosure and whether it had been made in good faith.  The details of the grievance had already been pleaded and would have to be considered to some extent by the Tribunal in any event.
  • The application had been made at an early stage in the proceedings, and even though a free-standing claim would have been out of time, that would only have been by a short time.
  • There was no specific prejudice to N in allowing the amendment.

Baker v Metropolitan Police

Mr Baker issued an ET1 without assistance.  He ticked the boxes in section 6.1 of the ET1 marked 'Disability' and 'Race'.  He also ticked box 6.2 marked 'Race discrimination', but he failed to tick' Disability discrimination' in box 6.2. During closing submissions to the Tribunal, an application was made to amend the ET1 to include a disability discrimination claim.  The Tribunal refused to hear the application on the ground of its lateness.

Mr Baker appealed to the EAT.  The EAT agreed with the Tribunal that the ET1 did not raise a complaint of disability discrimination.  The EAT held that whilst Mr Baker had ticked the box marked ‘Disability’, he did not make a recognisable complaint of disability discrimination.

Nevertheless, the EAT also held that there had been an error of law by the Tribunal for failing to consider Mr Baker’s application for leave to amend his ET1. The only ground for refusing the request related to lateness, and the Tribunal had failed to take into account all the circumstances.

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Further details about the Employment Team at Cobden House can be found by Clicking Here and or can be provided by the Civil Clerks by telephoning 0161 833 6000.

By Nicholas Flanagan, Iris Ferber and Samantha Openshaw (© May 2010)

 

Disclaimer

Although great care and attention has been taken in the preparation of this material, and the contents are believed to be correct, Cobden House Chambers and the barristers who practise there will not be held responsible for any errors contained herein, or any consequences arising from the use of this material.  In particular, no liability can be accepted where any person acts in reliance on these notes or the views expressed in this newsletter.

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