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 checked against a practitioner text, not 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 checked against a practitioner text, not 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 checked against a practitioner text, not 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).
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; s.28 ERA 1996; days on which an employee would normally be required to work; amendment of claim. A temporary agreed reduction from five-day to four-day working did not stop Fridays being days on which the employees would normally be required to work: the question under s.28(1) is whether the employee would normally be contractually required to work that day, and an agreed variation is no less a departure from the norm [34], [36], [41]. Sections 30(5) and 31(6) assume that the right can arise where short-time working has been agreed [35]. The tribunal was wrong to refuse an amendment substituting the s.34 gateway for s.23: the focus is on how far the new pleading raises different areas of enquiry, and this was pure re-labelling [48]-[49], [52]. A want of jurisdiction over the claim as first pleaded is no absolute bar to amendment [54]. Appeals allowed and remitted for quantification [67].
“… the approach of both the EAT and this Court in considering applications to amend which arguably raise new causes of action has been to focus not on questions of formal classification but on the extent to which the new pleading is likely to involve substantially different areas of enquiry 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.”Underhill LJ, at [48]
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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; strike-out; caste and ethnic origins. The claim as set out in the ET1 is not something just to set the ball rolling: it sets out the essential case to which a respondent must respond, not a witness statement or other document [16]. Treating the case as wider than the ET1 or ET3 would let a litigant escape time limits by pointing to other documents: that defeats the purpose of permitting or denying amendments [17]. A tribunal should take very great care not to look for the essential case elsewhere than in the pleadings [18]. Strike-out of a discrimination claim should be sparing and cautious [20]. Ethnic origins in s.9(1) EqA 2010 is a wide and flexible phrase covering descent: at least some situations labelled caste fall within it [44], and s.9(5) does not restrict s.9(1) [52]. The amended pleading could not be struck out without the full facts being determined [54]. Appeal dismissed [56].
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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; relabelling; time limits; Galilee preferred. The claimant had pleaded s.15 EqA 2010 and applied out of time to add a s.13 claim; the employment judge allowed it as relying on no new facts [1], [10]. Soole J held that a mere relabelling does not extend beyond a new claim based on facts already pleaded: the discussion in Abercrombie of the degree of factual difference goes to discretion where the amendment is not a relabelling [27]. The s.13 claim involved a greater area of factual enquiry: s.13 is a more onerous test than s.15, the claim had been framed for s.15, and any further inferences would be inferences of new fact [28]. The judge was wrong [29]. Soole J would follow Galilee over Amey: the applicant need only show a prima facie case that the primary time limit, or the just and equitable ground, is satisfied [31]. Remitted to the same judge to exercise the discretion [34].
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.
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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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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.