Trimble & Anor v North Lanarkshire Council & Anor

An employment tribunal considering an amendment to add a respondent must balance the injustice and hardship of allowing it against those of refusing it, in the light of all the circumstances. Relevant matters include unexplained delay, the source of that delay, the practical difficulty to the proposed respondent of defending historic claims, and any alternative remedy.

An appellate tribunal will not reweigh those matters unless the exercise of discretion discloses legal error, disregard of principle, factual error, irrelevant considerations, omission of relevant considerations, or perversity. TUPE preserves transferred employment rights, but it does not require special weight to be given to a late application to add the transferee.

The claimants brought equal pay claims against North Lanarkshire Council. Their employment later transferred to North Lanarkshire Leisure Ltd under Transfer of Undertakings (Protection of Employment) Regulations 2006. Although their solicitors had been told of the transfer in 2007, they did not seek to add the transferee until 2011.

The Employment Tribunal initially allowed the amendment without hearing the transferee. Following a pre-hearing review, it revoked that order. It found that the delay was unexplained and that the transferee would be prejudiced by defending claims relating to a period before it existed. The claimants appealed, contending that the Tribunal had given excessive weight to delay and insufficient effect to TUPE.

1. Appeal dismissed. The Employment Judge had applied the correct approach to amendment. She was required to consider all the circumstances and balance the relative injustice and hardship of allowing or refusing the addition of the transferee respondent, consistently with Selkent Bus Co Ltd v Moore [1996] IRLR 661.

2. The Judge was entitled to give substantial weight to the length of the unexplained delay. The claimants' solicitors had been told of the transfer in 2007, yet did not seek amendment until 2011. She was also entitled, without further evidence, to infer real difficulty for a transferee asked to defend equal pay allegations concerning five years before the transfer and before its incorporation.

3. The potential loss to the claimants of their claims was recognised, but it did not make the balancing exercise perverse. The Tribunal could give some, carefully limited, weight to the possibility of a remedy against their advisers. The Employment Appeal Tribunal could not substitute its preferred weighting merely because another conclusion was possible.

4. TUPE had preserved the claimants' accrued contractual equal pay rights on transfer. It did not, however, place them in a specially protected position when seeking a late procedural amendment. The claimants had opportunities, within the applicable time limits, to bring proceedings against or add the transferee. Reasonable limitation periods were compatible with the protection of employment rights, as illustrated by Preston No.1 [2001] ICR 961.

• Employment Appeal Tribunal: dismissed the claimants' appeal in [2012] UKEAT 0048_12_2011.
• Employment Tribunal, Glasgow: by judgment registered on 28 June 2012, revoked earlier orders permitting the claimants to amend their claims to add the transferee as second respondent.