2 Sisters Food Group Ltd v Abraityte & Ors

When deciding an application to amend, an Employment Tribunal must identify the true nature of each proposed amendment, consider any applicable time limit, and balance the respective injustice and hardship of allowing or refusing it. These are relevant considerations within a discretionary exercise; an equal pay claim is not subject to a distinct amendment approach merely because time cannot be extended.

In an equal-value claim, an amendment relying on different work performed by the claimant, as well as one relying on different comparator work, may change the factual basis of the claim and amount to a new claim. The Tribunal must assess the amendment against the original pleading and the combined scope of the revised claimant and comparator roles.

Sixty-six former employees brought multiple equal pay claims arising from employment at a factory which had closed. Their claims initially relied on three dispatch comparator roles. Following further information, they sought to amend the claims by adding comparator roles and by adding or changing the roles undertaken by individual claimants.

The East London Employment Tribunal allowed the amendments. It treated the additional comparators as new, prima facie out-of-time claims, but held that amendments to the claimants’ own roles did not create new causes of action.

The employer appealed. The central issues were whether the claimant-role amendments changed the basis of the equal-value claims and whether the Tribunal had adequately considered time and the enlarged factual enquiry required by all the amendments.

1. Appeal allowed and matter remitted. The Employment Tribunal erred in treating amendments which added or changed work undertaken by the claimants as not giving rise to a potentially new basis of claim.

2. An equal-value claim under section 65(6) of the Equality Act 2010 depends on a comparison between the work of the claimant and that of the comparator. Where a claimant seeks to rely on different work which she performed, that changes the factual basis of the comparison in the same way that reliance on materially different comparator work may do. The Tribunal’s contrary reasoning was flawed.

3. That conclusion did not itself require refusal of the amendment. Under Selkent Bus Co Ltd v Moore [1996] ICR 836, an amendment which advances a new and prima facie out-of-time claim remains subject to the Tribunal’s discretionary balance of injustice and hardship. Time limits are a material factor, but their weight is for the Tribunal. Equal pay claims do not form a special category requiring a different approach merely because time cannot be extended.

4. The Tribunal had sufficiently appreciated the chronology and time issue in relation to the additional comparator roles. Its Reasons did not, however, show that it had assessed the claimant-role amendments against paragraph 14 of the original ET1s and the subsequent particulars. That issue could affect whether the amendments were new claims and any consequential time question.

5. The Tribunal also failed to show full engagement with the widened factual enquiry and comparative assessments required when the claimant and comparator amendments were considered together. Those matters were relevant to the discretionary balance. The amendment application was remitted to the Employment Tribunal for reconsideration.

• Employment Appeal Tribunal — allowed the employer’s appeal and remitted the amendment application for reconsideration.
• East London Employment Tribunal — at a preliminary hearing on 14 May 2015, allowed the claimants to amend their equal pay claims.