Amey Services Ltd & Enterprise Managed Services Ltd v Aldridge & Ors (Practice and Procedure: Amendment)

An Employment Tribunal considering an amendment which introduces a fresh claim must decide, as part of a single discretionary exercise, whether the claim would otherwise be time barred and whether it should nevertheless be allowed. That requirement applies equally where the new claim arose after the originating claim was presented.

A tribunal cannot allow an amendment subject to time bar while reserving limitation for later determination. It may defer its decision pending further information or binding clarification of the law, but it must resolve the time-bar issue before granting or refusing the amendment. The proposed amendment must also be sufficiently particularised before permission is granted.

Numerous claimants alleged that their employers had underpaid holiday pay by failing to include overtime and other additional pay. Their proceedings had been sisted while related holiday-pay litigation proceeded.

The claimants later sought to amend their claims to add alleged underpayments occurring during the proceedings. Some proposed amendments did not identify dates or periods with sufficient precision and were, at least potentially, out of time. Employment Judge Gall allowed certain amendments subject to time bar, with limitation to be addressed after further appellate decisions.

The employers appealed. The central issue was whether the Employment Judge could grant amendments while deferring the time-bar question and requiring later specification.

1. Appeal allowed and applications remitted. The Employment Judge made a material error of law by allowing the amendments subject to time bar. The decision could not stand.

2. An amendment decision is discretionary and requires a balance of the injustice and hardship caused by allowing or refusing it. Where a proposed amendment introduces a claim which would otherwise be time barred, the tribunal must determine whether it is out of time and, if so, whether the balance nevertheless justifies permission. The applicant bears the burden of showing that amendment should be allowed in all the circumstances.

3. This is a single-stage exercise. The principles in Selkent, Rawson and Newsquest are of general application. They are not confined to claims which existed when the originating application was presented. A later-arising claim may be added by amendment, but its time-bar position remains an integral part of the decision whether to grant permission.

4. A tribunal may defer determination of an amendment application if further factual material, particularisation, or binding legal clarification is needed. It may not grant the amendment tentatively and defer time bar. The Presidential Practice Directions did not alter those usual principles.

5. It was also erroneous to permit amendments without first ensuring that they were properly particularised. The appropriate response was not necessarily outright refusal: the tribunal could allow the proposed terms to be refined before making its single-stage decision.

6. The matter was remitted for a fresh determination. The claimants must identify whether each amendment is late, and to what extent, before arguing that any late amendment should still be permitted. The tribunal must apply the injustice-or-hardship balance on all available material, including limitation.

• Employment Appeal Tribunal: Allowed the employers’ appeal and remitted the amendment applications for determination afresh.
• Employment Tribunal: Employment Judge Gall had allowed certain holiday-pay amendments subject to reservation of time bar.