Newquest (Herald And Times) Ltd v Keeping (Practice and Procedure : Amendment)

When an amendment introduces a fresh claim which would have been time-barred if presented independently, the statutory time limit is not an absolute bar to amendment. It is, however, a highly relevant and potentially decisive factor.

The tribunal must identify the date of the amendment application, consider the extent and circumstances of the lateness, require an explanation for the delay, and weigh the resulting injustice and hardship. The absence of any prior grievance may also be material. An amendment should be refused where the claim is substantially out of time, no explanation is given, and the balance of prejudice favours the respondent.

The claimant brought an equal pay complaint concerning her employment as a Deputy Multi Media Editor. She later sought to amend the claim to add an equal pay claim concerning an earlier period in a different role as Acting Picture Editor.

The Employment Tribunal allowed the amendment, treating the claim as presented within time and considering the balance of hardship. The respondent appealed, arguing that the amendment introduced a new, time-barred cause of action and that no grievance had been raised in respect of it. The central issues were whether the amendment raised a fresh claim and how time limits should affect the exercise of the amendment discretion.

1. Appeal allowed. The Employment Judge had erred in law by treating the earlier equal pay claim as covered by the original ET1 and by concluding that no time-limit issue arose.
2. The original complaint was confined to the period from 1 September 2008. The proposed amendment introduced a fresh claim concerning the earlier period from 4 June 2007 to 31 August 2008.
3. Under rule 10(2)(q) of the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2004, the discretion to allow amendment had to be exercised judicially. The tribunal had to take account of all relevant circumstances and reach a decision open to a reasonable tribunal.
4. Under section 2ZA(3) of the Equal Pay Act 1970, an independent claim concerning the earlier employment would have been time-barred after 28 February 2009. The relevant comparison was therefore between that date and 22 May 2009, when the amendment application was made, rather than the date of the original ET1.
5. The time bar did not create an absolute prohibition on amendment. It was nevertheless an essential, highly relevant and potentially decisive factor. The tribunal had to consider why the amendment was late, why it was made when it was, and the merits of any explanation. The absence of any grievance concerning the new claim was also relevant.
6. Because the claim was significantly out of time, no explanation for the delay was provided, and no prior grievance had been intimated, the balance could only favour the respondent. A remit to allow a new stable-employment argument was inappropriate because that would introduce a wholly new case. The proposed amendment was refused, save for paragraphs 9 to 13, which related to the original claim.

• Employment Tribunal: Employment Judge Cape allowed the claimant’s application to amend her equal pay claim.
• Employment Appeal Tribunal: The appeal was allowed and the amendment was refused, except for paragraphs 9 to 13 relating to the original claim.