Thomson v East Dunbartonshire Council & Anor

On an application to amend, an Employment Tribunal must consider all the circumstances and balance the relative injustice and hardship of allowing and refusing the amendment. The nature of the amendment, applicable time limits, and the timing and manner of the application are material factors.

“Balance of prejudice” can properly describe that overall exercise. Although the expression may be less precise than “relative injustice and hardship”, its use is not an error of law where the Tribunal has considered the relevant circumstances. An appellate court may interfere with the discretionary decision only for legal error, including consideration of an irrelevant matter, omission of a mandatory relevant matter, or perversity.

The claimant alleged that, following the transfer of work from the second respondent to the first respondent, he should have transferred under the Transfer of Undertakings (Protection of Employment) Regulations 2006. The first respondent did not accept him as an employee, but he remained employed by the second respondent.

His original ET1 sought compensation for the refusal to transfer. It did not plead unfair dismissal and, after case-management discussions, proceeded as a complaint concerning failure to inform and consult. The claimant later brought a separate unfair-dismissal claim and then sought to amend the original ET1 to add unfair dismissal. An Employment Judge refused the amendment. The claimant appealed, contending that the amendment was merely a relabelling exercise and that the Judge had applied the wrong balancing test.

1. Appeal dismissed. The Employment Judge made no error of law in refusing permission to amend.

2. The governing approach was that stated in Selkent Bus Co Ltd v Moore [1996] ICR 836. The Tribunal had to consider all the circumstances, including the nature of the amendment, limitation issues, and the timing and manner of the application, before balancing the relative injustice and hardship of either course.

3. The Judge’s reference to a “balance of prejudice” did not disclose a misdirection. That expression was capable of conveying the required overall evaluation. It was preferable to use the language of relative injustice and hardship, since it identifies the matters to be weighed more precisely, but the terminology did not invalidate a decision which considered all relevant circumstances.

4. The proposed unfair-dismissal complaint was not merely an alternative label for the existing claim. The claimant had consciously not advanced such a complaint in the original ET1. The Employment Judge was entitled to treat it as a new claim, notwithstanding that it arose from the same factual background.

5. The Judge permissibly took account of the expired three-month time limit, the claimant’s awareness of the omission, his unexplained delay in seeking amendment, and the potential disruption to the existing proceedings. He also considered that the claimant had already raised a separate unfair-dismissal claim. None of the factors relied upon was irrelevant or omitted when legally mandatory. The refusal could not properly be characterised as perverse.

The President observed, without deciding the separate claim, that the unusual transfer circumstances might raise arguable questions about whether it had been reasonably practicable to present that claim in time.

• Employment Appeal Tribunal: dismissed the claimant’s appeal from the Employment Judge’s refusal, at a Pre-Hearing Review on 23 May 2013, to permit amendment of the ET1 to add unfair dismissal.
• Employment Tribunal: refused permission to amend the originating application.