The Rangers Football Club Ltd v Professional Footballers Association Scotland & Anor

Permission to amend an Employment Tribunal claim is discretionary. The tribunal must consider all the circumstances and balance the relative injustice and hardship of refusal and permission, including delay, its explanation, prejudice, relevancy and whether the amendment changes the claim or merely its legal capacity or label.

A trade union's independent status at a past material date may be determined retrospectively by the Certification Officer. Any evidential difficulty affects proof, not the competency of the complaint. Active but even-handed case management of pleadings, responses and alternative dispute resolution does not, without more, establish apparent bias.

The claimant association brought a complaint under regulation 13 of the Transfer of Undertakings (Protection of Employment) Regulations 2006 arising from the transfer of a football club. Its original case was that it was an appointed employee representative. It sought permission to add an alternative case that it was an independent trade union recognised for collective bargaining.

The Employment Tribunal permitted the amendment, subject to deletions, directed amended responses, and listed a further preliminary hearing. The purchaser appealed, contending that the amendment introduced an out-of-time and incompetent claim, that independence could not be established retrospectively, that the directions were erroneous, and that the Employment Judge appeared biased.

1. Appeal dismissed. The Employment Tribunal committed no error of law in allowing the amendment or in making consequential case-management directions.

2. The Employment Judge correctly approached amendment by applying the discretionary principles in Selkent Bus Co Ltd v Moore [1996] ICR 836. He considered the nature of the amended case, delay and the absence of a persuasive explanation, the respective prejudice, relevancy, and the scope for mitigating evidential prejudice through case management.

3. The Tribunal was entitled to characterise the amendment as a re-labelling exercise. The complaint remained an alleged failure to inform and consult under regulation 13 of the Transfer of Undertakings (Protection of Employment) Regulations 2006. The claimant was the same entity and sought to advance that complaint in a different capacity. In any event, the Employment Judge had assessed the factors relevant even if the amendment were differently categorised.

4. The Court of Appeal's decision in North Essex Partnership NHS Foundation Trust v Bone established that the Certification Officer can determine retrospectively whether a union was independent at a material date. A lack of available evidence may hinder the party seeking to establish independence, but it does not render the proposed complaint incompetent.

5. It was within the Tribunal's case-management discretion to require fully pleaded amended responses before the issue of independence was adjudicated. The resulting expense was a relevant consideration but did not make the directions unlawful.

6. The allegations of actual or apparent bias were unfounded. It was proper case management for the Employment Judge to identify a necessary averment of independence, discuss the excessive breadth of the proposed amendment, invite consideration of judicial mediation, and list a further hearing. None of those matters would lead a fair-minded and informed observer to conclude that there was a real possibility of bias.

• Employment Appeal Tribunal: Appeal dismissed. The Tribunal's amendment and case-management orders were upheld.
• Employment Tribunal: Allowed the claimant to amend its regulation 13 claim, subject to specified deletions and an averment of independent-trade-union status; ordered amended responses and a further preliminary hearing.