Walsall MBC & Anor v Birch & Ors (Practice and Procedure : Amendment)

An employment tribunal may exercise its discretion to allow an amendment joining a new respondent even where the relevant limitation period has expired. There is no absolute rule preventing such an amendment.

The tribunal must apply the Selkent principles. It must consider all the circumstances and balance the hardship of allowing the amendment against the hardship of refusing it. Expiry of the limitation period is always important, but equal pay claims are not subject to a special amendment rule merely because their time limits are strict or immutable.

On appeal, the Employment Appeal Tribunal may interfere only for an error of law, disregard of principle, material factual mistake, consideration of irrelevant matters, omission of relevant matters, or a conclusion outside the reasonable range.

Following a TUPE transfer from Walsall Metropolitan Borough Council to Housing 21 Ltd, 103 employees brought equal pay claims naming the Council but not Housing 21. They later applied to amend the claims to join Housing 21, after the applicable period for claims concerning pre-transfer losses had expired.

The Employment Judge granted the amendment, applying the principles in Selkent Bus Co v Moore. The Council and Housing 21 appealed, arguing that the expiry of the limitation period, and the particular statutory features of equal pay claims, required the amendment to be refused. The central issue was whether the Employment Judge had erred in law or exceeded the permissible scope of her discretion.

1. Appeal dismissed. The Employment Judge had power under rule 10(2)(k) and (q) to allow an amendment joining Housing 21, and the fact that the application was made out of time did not remove that discretion.
2. The authorities, including Gillick v BP Chemicals, Drinkwater Sabey v Burnett and Kent County Council and Selkent Bus Co v Moore, establish that an amendment introducing a new claim or party may be allowed even though a fresh claim would be time-barred. The limitation issue remains a factor in the discretionary balance.
3. The tribunal was required to consider the nature of the amendment, the applicability of time limits, and the timing and manner of the application, while balancing the relative injustice and hardship of granting or refusing the amendment.
4. The Employment Appeal Tribunal adopted the limited review approach stated in Noorani v Merseyside TEC Ltd. It could intervene only if the discretion was exercised under a mistake of law, disregard of principle, misapprehension of fact, reliance on irrelevant matters, failure to consider relevant matters, or a conclusion outside the generous range of reasonable disagreement.
5. The Employment Judge had considered the expired limitation period, the additional claims faced by Housing 21, the delay and the absence of a satisfactory explanation, the absence of new issues or disruption to the proceedings, and the hardship to the Claimants if joinder were refused. Her conclusion that the balance favoured joinder was permissible.
6. The strict statutory time limits applicable to equal pay claims did not place such claims in a special category. The decision in Sodexo Limited v Gutridge was relevant background and made the limitation issue important, but did not create an additional rule governing amendment applications.

• Employment Appeal Tribunal: dismissed the appeal from the Employment Tribunal’s judgment dated 9 April 2010.
• Employment Tribunal: granted permission to amend the claims by joining Housing 21 Ltd as a respondent to the claims of the transferred employees.