Applications to amend a claim or response, and the balance of injustice and hardship the tribunal weighs. Selkent Bus Co Ltd v Moore; Galilee v Commissioner of Police of the Metropolis.
Amendment; claim forms; adding or substituting respondents; the Cocking test. The National Industrial Relations Court (Sir John Donaldson) laid down the procedure for deciding whether to allow an amendment that changes the basis of a claim or adds or substitutes a respondent: the tribunal must have regard to all the circumstances, in particular any injustice or hardship that would result from allowing or refusing the amendment [IDS 9.22]. The test was restated in Selkent Bus Co Ltd v Moore and applied by the Court of Appeal in British Newspaper Printing Corporation (North) Ltd v Kelly, which held that Parliament laid down no time limit for amending a claim already presented [IDS 9.65]. An application to add or substitute a respondent relates back to the date of the original claim [IDS 9.63]. [Summary not yet checked against the judgment.]
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References found in the judgments’ text, with the number of paragraphs in which each case is mentioned. Not a classification: how a case was treated is recorded under Later history.
Practice; amendments; established the test for allowing amendments: nature of amendment, time limits, timing/manner. [Summary not yet checked against the judgment.]
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References found in the judgments’ text, with the number of paragraphs in which each case is mentioned. Not a classification: how a case was treated is recorded under Later history.
Court of Appeal confirmed that an amendment which in substance introduces an entirely new case may be refused as impermissible 'relabelling'. The tribunal must distinguish between an amendment that genuinely expands the factual matrix and one that simply recategorises already-pleaded events to create a legally distinct claim. [Summary not yet checked against the judgment.]
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References found in the judgments’ text, with the number of paragraphs in which each case is mentioned. Not a classification: how a case was treated is recorded under Later history.
Tribunal procedure; amendment; new claim vs relabelling. Direct and indirect discrimination are different unlawful acts: an application to amend an ET1 pleading only direct race discrimination so as to add an indirect discrimination claim is the addition of a new claim brought out of time, engaging the just and equitable extension test (then RRA s.68(6)), not a mere relabelling of pleaded facts to which only the Selkent balance of injustice and hardship applies. A bare assertion of 'race discrimination' in the claim form does not automatically cover both forms (doubting Quarcoopome; applying Housing Corporation v Bryant's causative-link requirement). [Summary not yet checked against the judgment.]
Cites
References found in the judgments’ text, with the number of paragraphs in which each case is mentioned. Not a classification: how a case was treated is recorded under Later history.
Guarantee payments; calculation of 'normal working hours' and shifts. [Summary not yet checked against the judgment.]
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References found in the judgments’ text, with the number of paragraphs in which each case is mentioned. Not a classification: how a case was treated is recorded under Later history.
Amendments; ET1 as governing document. The ET1 and attached grounds of claim are the governing document that defines the scope of the proceedings before the tribunal. A tribunal has no jurisdiction to adjudicate on claims or issues that are not raised in the ET1. Where a claimant seeks to pursue a case that goes beyond what is pleaded, a formal application to amend must be made and decided under the Selkent framework. Langstaff P: the ET1 'frames the issues'; it is not a mere formality. This is particularly important at the categorisation stage of an amendment application, the question is whether the proposed amendment travels outside the ET1 or simply relabels existing allegations. [Summary not yet checked against the judgment.]
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References found in the judgments’ text, with the number of paragraphs in which each case is mentioned. Not a classification: how a case was treated is recorded under Later history.
Amendments; time limits; Galilee preferred. In light of the exhaustive analysis in Galilee, the EAT preferred that approach: it was only necessary for the claimant to show a prima facie case that the primary time limit was satisfied (or grounds for extending time) at the amendment application stage. Granting an amendment does not automatically deprive the respondent of limitation arguments. [Summary not yet checked against the judgment.]
Amendments; time limits; no relation back. HHJ Hand held there is NO doctrine of 'relation back' in employment tribunal proceedings: amendments take effect for limitation purposes at the time permission to amend is given. It is NOT always necessary to determine time points as part of the amendment application; the word 'essential' in Selkent should not be applied in a 'rigid and inflexible way'. To extent Rawson and Amey relied on relation back, they were wrongly decided. [Summary not yet checked against the judgment.]
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References found in the judgments’ text, with the number of paragraphs in which each case is mentioned. Not a classification: how a case was treated is recorded under Later history.
Amendments; time limits; just and equitable extension. The Court of Appeal held that when considering an extension of time under the 'just and equitable' test (which applies to out-of-time amendments under the Selkent factors), tribunals should not use the Keeble factors as a rigid checklist or a mandatory hurdle. Instead, the focus should be on a broad assessment of all relevant factors, most importantly the length of, and the reasons for, the delay.
Tribunal procedure; amendment; Selkent. Citing Selkent is not enough: the tribunal must actually conduct the balancing exercise, weighing the injustice and hardship of allowing the amendment against the injustice and hardship of refusing it, by reference to the practical consequences on the facts. A relabelling amendment attaching a new legal label to facts already pleaded will ordinarily be permitted, even where it raises time-limit questions.
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Cites
References found in the judgments’ text, with the number of paragraphs in which each case is mentioned. Not a classification: how a case was treated is recorded under Later history.
Amendment; time limits; jurisdiction; whistleblowing detriment; unfair dismissal. Where possible a tribunal considering an application to amend should usually examine time bar as one of the Selkent factors, but where the time-bar position is unclear it is competent to reserve it, following Galilee.
Cites
References found in the judgments’ text, with the number of paragraphs in which each case is mentioned. Not a classification: how a case was treated is recorded under Later history.