London Borough Of Wandsworth v Vining & Ors

An appellate tribunal may exceptionally permit a party to amend its answer to raise a new point of European Union or Convention law. The point must be reasonably arguable and should not be tactical. The tribunal must weigh the prejudice of refusing the amendment, including whether refusal leaves the claimant without a remedy, against the prejudice of requiring the other party to meet a different case. Where no further evidence is required and costs can address the resulting prejudice, an amendment may properly be allowed so that the European points can be determined.

Parks Constables and their trade unions brought unfair-dismissal and collective-consultation claims after the London Borough of Wandsworth disbanded its Parks Constabulary.

The Employment Tribunal held that the employer could not rely on the exclusions in section 200 of the Employment Rights Act 1996 and section 280 of the Trade Union and Labour Relations (Consolidation) Act 1992. The employer appealed. Following the Court of Appeal decision in McKinnon v Redbridge LBC, the GMB claimants conceded that the appeal should succeed.

UNISON instead sought permission to amend its answer on appeal to raise new Convention and Community-law arguments. The central issue was whether that exceptional amendment should be permitted.

1. The amendment application was granted. The appeal was adjourned and relisted for a one-day Category A Full Hearing so that the European points could be argued and determined.

2. The domestic construction point had been resolved adversely to the claimants by the Court of Appeal in McKinnon. That did not determine whether the statutory exclusions left the UNISON claimants without an effective domestic remedy for rights arising under the ECHR, as incorporated by the Human Rights Act, or under Directive 98/59/EC.

3. In exercising the appellate discretion, the Tribunal considered the principles governing new points on appeal and amendments. The proposed arguments were not the product of a tactical decision. They were reasonably arguable, although not decisive or a “knockout point”.

4. Refusing the amendment would leave the UNISON claimants without a remedy. Allowing it would require the employer to answer a different case, but no further evidential inquiry was needed. Any additional costs could be addressed after the appeal. Those features made this an exceptional case in which the amendment should be allowed.

• Employment Appeal Tribunal: permitted UNISON to amend its respondent’s answer to raise new Convention and Community-law points, then adjourned and relisted the employer’s appeal.
• Employment Tribunal (London South): Employment Judge Zuke held that the employer could not rely on section 200 of the Employment Rights Act 1996 or section 280 of the Trade Union and Labour Relations (Consolidation) Act 1992.