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.
Race discrimination; procedures; established the principles for ordering particulars in discrimination cases.
Amendments; out of time. An employment tribunal allowed B to amend an ET1 complaining of race discrimination to include a complaint of unfair dismissal. The EAT upheld the tribunal's decision despite the time limit for presenting the unfair dismissal claim having expired. The facts stated in the ET1 were sufficient to ground either complaint and the amendment would neither prejudice the respondent nor cause it any injustice.
Amendments; out of time; Court of Appeal. Parliament had not laid down any rules imposing time limits in respect of amending applications already presented to a tribunal. The proper test is that laid down in Cocking, which required an assessment of the relative hardships that would be caused to the parties depending on whether the amendment was or was not allowed.
Practice; amendments; established the test for allowing amendments: nature of amendment, time limits, timing/manner.
Amendments; relabelling. Where proposed amendments do not allege any new facts but simply attach new labels to facts already pleaded in the ET1 (here unfair dismissal/redundancy added to race discrimination), no question of time limitation arises. The Court of Appeal upheld the tribunal's decision to allow the amendment.
Amendments; disability discrimination; out of time. The amendment represented the addition of a new cause of action; as the new claim had been made out of time, the key question was whether it would be just and equitable to allow the amendment. Since it was not, the application to amend had to be refused. The EAT held that being out of time was an absolute bar (though this has been doubted in later cases).
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.
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).
Amendments; TUPE Reg 13; time limits. UCATT sought to amend its claim to introduce a complaint under TUPE Reg 13(2). The tribunal exercised its discretion to refuse: the request was made well after the three-month time limit, and there was nothing making it not reasonably practicable to have presented in time. Simply because allowing the amendment caused no prejudice to the respondent did not mean refusal inevitably caused prejudice to UCATT.
Guarantee payments; calculation of 'normal working hours' and shifts.
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.
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.
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.
Amendments; delay; balance of hardship. The EAT held that the employment tribunal had attached significant weight to what it took to be delay in raising the amendment application, without properly considering the implications of that for the balance of hardship; and erred in its approach to the significance of whether a freestanding complaint would have been out of time.
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.
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.
Amendment; EAT (HHJ Auerbach) dismissed appeal against refusal to add disability discrimination claims (ss.15, 20–21 EqA) for depression and anxiety. The proposed amendment was not a mere relabelling — it introduced wholly new claims that would materially enlarge the legal and factual enquiry, requiring determination of disability status (s.6), whether the respondent knew or ought to have known, disclosure of medical records, additional witnesses, and a further preliminary hearing. The EJ properly distinguished between treatment causing mental ill health (going to remedy) and a pre-existing underlying disability (a new area of enquiry). The EAT confirmed the correct approach is to focus on the extent of new areas of enquiry (per Abercrombie) rather than formal Selkent categorisation, and that the balance of hardship was correctly struck: the respondent faced disproportionate burdens while the claimant already had alternative remedies under live claims. The delay — four months after gaining knowledge of potential disability — was held to be unreasonable even for a litigant in person, given her demonstrated ability to articulate detailed claims.
Amendments; lists of issues; multi-party litigation. The EAT clarified that a 'list of issues' is a case management tool, not a pleading, and cannot be used to expand a claim beyond what is contained in the formal claim form (ET1). When considering amendments in complex cases, tribunals must examine each proposed amendment separately and ensure they are fully formulated and particularised before granting permission.
Amendments; relation back doctrine. The EAT considered that the effect of an amendment is to backdate the new claim to the date on which the original claim form was presented. Once the amendment is granted, the respondent is thereafter prevented from raising the limitation defence. This is why consideration of the extension of time point is 'essential' when deciding whether to grant permission to amend. (Note: doubted in Galilee)
Amendments; time limits; Scottish EAT. The tribunal must come to a definitive conclusion on the question of time limits when it determines the amendment application, it cannot defer this issue to the substantive hearing. The employment judge erred in allowing amendments 'subject to time-bar'. (Note: tension with Galilee; Douglas preferred Galilee)
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.
Amendments; time limits; Galilee approved. HHJ Auerbach stated: 'The tribunal is not obliged to determine the time point at the same time as determining the amendment application. There is no doctrine of relation back, and sometimes the tribunal can, or indeed should, leave the time point to be resolved at the full hearing.' However, a time point can be properly weighed in the balance.
Amendments; relabelling. An amendment altering the basis of an existing claim without raising a new head of complaint is not affected by time limit considerations. The EAT held tribunals should take an 'overall view, following Selkent' when deciding whether to alter or add to a claim; this is not the same as a brand new claim being launched out of time.
Amendments; time limits. The fact that the cause of action contained in the proposed amendment could be brought as a new claim within the appropriate time limit is a 'factor of considerable weight' for the tribunal to take into account, though not conclusive in favour of granting the application.
Amendments; time limits; new cause of action. A tribunal may refuse an amendment even where the new claim is potentially still in time to be brought as a fresh claim, if there is uncertainty as to whether in time. The tribunal was entitled to treat the time limit point as neutral and weigh other factors including prejudice to the employer.
Amendments; post-ET1 events. It is possible to bring a new claim by way of amendment in relation to matters that have only arisen after the presentation of the ET1. The tribunal's approach of holding it had no jurisdiction was 'too dogmatic' as it had viewed the matter in isolation without considering whether it was just and equitable to allow the matter to proceed.
Amendments; post-ET1 events. There is no reason in principle why a cause of action that has accrued after the presentation of the original claim form, and therefore could not have been included when the claim form was originally presented, should not be added by amendment if appropriate. There is nothing in the Tribunal Rules that expressly prevents such an amendment.
Amendments; post-ET1 events; time limits. Events occurring after the presentation of the ET1 may be relevant to whether the original claim is in time (continuing act argument). The tribunal erred in failing to determine the application to amend before deciding the time point. The events sought to be added were potentially relevant to whether there was 'conduct extending over a period' under s.123 EqA 2010.
Amendments; just and equitable test. The EAT considered that the employment judge was wrong to remove the case from the amendment context and place it under the rubric of extension of time. Following Transport and General Workers' Union v Safeway, out of time amendment applications must be treated as falling under the amendment rubric. Treating the issue as one of amendment assists the tribunal to appreciate the potential range of relevant factors.
Amendments; Selkent test. The employment judge erred in simply considering whether it would be just and equitable to extend time to allow a claim of race discrimination out of time, without applying any further test. The judge was dealing with an application to introduce a new cause of action by way of amendment; he should have referred to the Selkent test and identified aspects going to injustice and prejudice if the application was/was not allowed.
EAT 1996 - Discrimination; evidence; the tribunal must look at the totality of the evidence, not fragment it.
Consultation; redundancy; protective award.
Amendments; time limits; balance of hardship. While the question of whether an amendment application adding a new claim is made out of time is an important factor, it is not determinative. The tribunal was correct to take into account the balance of hardship and justice as between the parties. Had Parliament intended to limit the tribunal's power to claims in time, the Rules would have been drafted accordingly.
Amendments; race discrimination; comparators. In refusing the application to amend to add two further comparators, the tribunal correctly took account of: that the addition would introduce a new claim; the amendment had been proposed very late; the new claim was well out of time; and the employer would be considerably prejudiced. The EAT upheld the tribunal's approach.
Amendments; just and equitable test. Langstaff P commented that while, in cases to which the 'just and equitable' test applies, the approach is likely to be very similar in determining whether to grant an amendment as it is to permit a claim to be raised out of time, 'it must always be remembered that the situation is not identical, the discretion is a wide one and there are no particular time limits that apply to the exercise of the discretion itself'.
Amendments; equal pay; time limits. A group of 103 claimants sought to amend to join the transferee after the time limit expired. The EAT did not accept that equal pay claims were in a special category because of immutable time limits. The employment judge had correctly taken into account the expiry of the limitation period and accorded considerable weight to it, while also considering other factors including that the transferee already faced similar claims.
Amendments; equal pay; time limits. Where the employment judge realised there was a time limitation issue, she should have considered the guidance as to the importance of having regard to time limits where allowing an amendment would enable the claimant to evade a statutory bar. The onus is on the claimant to satisfy the tribunal that amendment is appropriate; since the new claim was significantly out of time with no explanation, that onus was not discharged.