Glasgow City Council v Fox Cross Claimants & Ors (Practice and Procedure : Amendment)

On an appeal from an Employment Tribunal’s discretionary decision on amendment, the Employment Appeal Tribunal may intervene only for an error of law, such as an error of principle or a perverse conclusion.

An amendment application requires an overall balance between the injustice and hardship of allowing it and of refusing it. The Tribunal must consider, at least, the amendment’s terms, limitation, timing and manner, the reason for lateness, delay, costs, available evidence and prejudice. Those considerations are not a closed checklist. A late and strategic application may weigh against amendment, but an amendment should not be refused merely to punish a party where the balance of justice otherwise favours permission.

The Fox Cross Claimants brought the second wave of substantial equal-pay claims against Glasgow City Council. They challenged whether the Council’s Work, Pay and Benefits Review was a job-evaluation study within section 1(5) of the Equal Pay Act 1970.

During the Council’s evidence, the Claimants sought to rely on specified examples of markedly different jobs allocated to the same generic role profile. The examples had not previously been identified. The Employment Tribunal at Glasgow, by reasons issued on 13 December 2012, allowed an amendment identifying those job groups and ordered consequential disclosure.

The Council appealed. It contended that the amendment was made after the Claimants had effectively closed their case, that the Tribunal had failed properly to assess the late strategic decision and resulting prejudice, and that it had taken irrelevant matters into account.

1. Appeal dismissed. The Tribunal had applied the correct legal approach to its discretionary amendment decision. The EAT could not substitute its own view merely because another tribunal might have reached a different result.

2. The central question, drawn from Traynor, was whether the balance of justice favoured allowing the amendment. The listed matters relevant to that exercise were explanatory and non-exhaustive. They included the amendment’s nature and terms, limitation, timing and manner, the reason for delay, likely delay and costs, the availability of evidence, and prejudice to each side.

3. The Employment Tribunal identified why the amendment was late. It rejected the Claimants’ suggested explanation of mistake and found instead a strategic or tactical decision to rely on job titles without supporting evidence. It was not necessary for the Tribunal separately to label that reason as good or bad. The material issue was whether, taking all circumstances together, justice required the amendment. The amendment process is not punitive where no real prejudice or risk to justice results.

4. The Tribunal had considered the matters relied upon by the Council. It addressed the late stage of the application, the previously disclosed spreadsheet, the intended closed list of claimants and comparators, costs, the Claimants’ effective closure of their case, and the likely delay. It was entitled to conclude that further hearing time could probably be accommodated or arranged with minimal delay, that no specific unavailable evidence or material additional expense had been shown, and that refusing potentially relevant evidence created the greater risk of injustice.

5. The amendment added evidential particulars supporting an existing pleaded challenge. It did not introduce a new cause of action or claim. The conclusion was neither based on a wrong legal principle nor perverse. The appeal was therefore rejected.

Procedural observation

In Scottish EAT proceedings, a party choosing to provide a skeleton argument should submit it sufficiently in advance for the Tribunal and lay members to consider it as part of their preparation.

• Employment Appeal Tribunal: appeal dismissed; the Tribunal’s order permitting the amendment was upheld ([2013] UKEAT 0004_13_2003).
• Employment Tribunal at Glasgow: by reasons issued on 13 December 2012, permitted the Claimants’ amendment and ordered consequential disclosure.