Remploy Ltd v Abbott & Ors (Practice and Procedure : Amendment)

In complex, professionally conducted Employment Tribunal litigation, the claim and response define the issues. A party seeking to add factual allegations, including further particulars which enlarge the factual issues, requires permission to amend.

An amendment application must be properly formulated and particularised. The Tribunal must assess each proposed amendment separately, including its timing, the reason for delay, prejudice, evidence, disclosure, cost, proportionality, the hearing timetable and the effect on existing case management. The overriding consideration remains the relative injustice and hardship of granting or refusing amendment.

Langston does not impose a general duty to investigate every possible aspect of redundancy unfairness regardless of the parties’ pleaded case.

About 1,660 former employees brought claims arising from Remploy’s factory closures and mass redundancies. The litigation had been managed through a centralised model of generic issues and lead cases.

Shortly before the listed hearing, the claimants sought permission to add allegations concerning selection for closing-down teams and alternative employment at particular sites and operations. The Employment Tribunal at London Central permitted the amendments on 26 September 2014, treating them as particulars of existing allegations concerning alternative employment and relying on Langston v Cranfield University [1998] IRLR 172.

Remploy appealed. The central issues were whether the new allegations required amendment, whether Langston required their investigation despite the pleaded case, and whether the Tribunal had lawfully exercised its case-management discretion.

1. Appeal allowed. The Employment Tribunal’s order permitting amendment was set aside. Its discretionary case-management decision was flawed because it had not applied the correct principles or considered material matters.

2. The ET1 and ET3 define the essential case. A list of issues is a useful case-management tool, but it is neither a pleading nor an order and cannot enlarge the issues beyond those pleaded. Permission is required to add new allegations and also to add further particulars which add factual issues for determination.

3. The proposed allegations were not merely particulars of a generic pleaded complaint about employment at other factories. They concerned distinct, localised matters: selection for closing-down teams, opportunities at Wigan and Blackburn, and employment in CCTV or employment services. Even if characterised as particulars, they required permission to amend.

4. The Tribunal erred in treating Langston as requiring it to investigate all potential aspects of unfairness in a redundancy dismissal. That decision was not of blanket application. A Tribunal may need to raise an obvious point in a straightforward case, especially where parties are unrepresented, but a complex case with professionally drafted pleadings and extensive case management must ordinarily proceed on the pleaded issues. The parties must have notice and an opportunity to adduce evidence.

5. Applying the principles in Selkent Bus Co Ltd v Moore [1996] ICR 836, the Tribunal should have required properly formulated and particularised amendments, considered each separately, and examined the explanation for delay, the availability of witnesses and documents, additional disclosure, costs, proportionality, equal footing and the impact on the lead-case model and hearing date. It did not do so.

6. The matter was to return promptly to the Employment Tribunal for comprehensive case management. If the claimants pursued amendment, they had to present properly particularised applications for reconsideration in the context of the overall management of the proceedings.

• Employment Appeal Tribunal: Remploy’s appeal was allowed and the amendment order was set aside: [2015] UKEAT 0405_14_2404.
• Employment Tribunal, London Central: On 26 September 2014, Employment Judge Tayler granted the claimants permission to amend their unfair-dismissal claims.