Moore v. Marks and Spencer Plc

An application to amend a claim by adding substantially new, out-of-time discrimination complaints may be refused where the proposed claims were not foreshadowed in the original claim, the respondent objects, and the change of representation provides no sufficient explanation for the delay. A tribunal may determine an interim amendment application on the papers and give concise reasons by accepting the substance of the respondent’s objection. A review application must be approached under the applicable review rules, but the tribunal may review its decision and affirm it. A separate claim form remains capable of being determined where it has not been accepted or rejected.

The claimant appealed against an Employment Judge’s refusal of an application to amend her unfair dismissal claim and against refusal of a review. The proposed amendment sought to add sex and maternity discrimination claims arising from her redundancy dismissal while she was on maternity leave. The proposed claims were out of time and the respondent objected.

The Employment Judge’s orders were criticised for giving sparse reasons. The central issues were whether the refusal was a proper exercise of the discretion under [1996] ICR 836, whether the review had been properly determined, and whether the later ET1 should instead be treated as a separate claim.

1. Amendment. The appeal against refusal of the amendment was dismissed. Under the principles in Selkent Bus Co. Ltd v Moore [1996] ICR 836, the tribunal was entitled to consider the claim’s lateness, the absence of any suggestion of discrimination in the original ET1, the respondent’s objection, and the change of solicitor without explanation. The proposed discrimination claims were qualitatively different from the straightforward unfair dismissal claim and would require substantially new factual material.
2. Reasons and review. Although the Employment Judge’s reasons were terse, the refusal implicitly accepted the substance of the respondent’s objection. The Judge had reviewed the material and was entitled to reach the same conclusion. A change of solicitor and a former solicitor’s failure to advance all possible claims do not, without more, constitute the interests of justice: Lindsay v Ironsides Ray & Vials [1994] ICR 384. The review procedure was explained by reference to Secretary of State v Rance [2007] IRLR 665.
3. Separate claim. The later ET1 was recognised as a new claim rather than an amendment and remained capable of determination. The Employment Tribunal had neither accepted nor rejected it. The question whether time should be extended, including whether it was just and equitable to do so, was for the Employment Tribunal to determine. The suggested test under the maternity jurisdiction might be difficult to satisfy, but that issue was not decided by the EAT.
4. Disposition. The appeals were allowed in part. The second claim was ordered to be accepted, served on the respondent, and dealt with by directions in the Employment Tribunal.

• Employment Tribunal: The Employment Judge refused the amendment application on 16 November 2009 and refused a review on 18 December 2009.
• Employment Appeal Tribunal: The appeals were allowed in part. The refusal to amend was upheld, but the second ET1 was ordered to be accepted and determined as a separate claim.