Mist v Derby Community Health Services NHS Trust (Practice and Procedure: Amendment)

An employment tribunal deciding whether to permit an amendment which adds an otherwise time-barred claim must apply the discretionary approach in Selkent. The paramount consideration is the relative injustice and hardship of allowing or refusing the amendment. Time limits, delay and any lack of explanation are relevant factors, but none is determinative in itself.

A tribunal errs if it allows the respondent's loss of a limitation defence, without consequential prejudice, to outweigh the claimant's loss of an otherwise viable claim. In a TUPE case, the assessment of hardship must also accurately address whether employment liability transferred under Regulation 4(3), and the joint and several consultation liability imposed by Regulation 15(9) of the Transfer of Undertakings (Protection of Employment) Regulations 2006.

The Claimant brought Employment Tribunal proceedings against her original employer following her resignation. She alleged, among other matters, TUPE-related dismissal and failures to inform and consult. Her claim identified the prospective transferee but did not initially name it as a respondent.

The Claimant later applied to join the transferee. The Employment Tribunal found a relevant transfer but did not determine its date. It refused the amendment as out of time and struck out the claims against the transferee. The Claimant appealed. The transferee cross-appealed on early-conciliation compliance and on the Tribunal's assumptions about TUPE liabilities.

The central issues were whether the amendment discretion had been exercised lawfully, whether further early conciliation was required to join a respondent to existing proceedings, and whether the assumed TUPE liabilities were relevantly correct.

1. The appeal was allowed. The Employment Tribunal correctly treated the application as one engaging a judicial discretion under the Selkent principles. It was entitled to find that the Claimant had not explained why the transferee had not been joined from the outset. That finding, and the fact that the proposed claims were out of time, were relevant but not conclusive.

2. The Tribunal nevertheless erred in its ultimate balancing exercise. Its findings showed that the delay caused no evidential prejudice and that the transferee's identified hardship was only the loss of a limitation defence. It also found that refusal would deny the Claimant otherwise viable claims against the transferee. By allowing the time point to outweigh those considerations, the Tribunal made limitation determinative and reached a perverse conclusion. Relative injustice and hardship had to remain paramount.

3. The cross-appeal was dismissed on early conciliation. A minor error in a prospective respondent's name or address did not invalidate the original notification where ACAS had sufficient information to make contact and the Tribunal was entitled to accept the certificate. A challenge to the earlier decision not to reject the ET1 was not a cross-appeal from the decision under challenge. Further, a claimant seeking to amend existing proceedings to add a respondent was no longer a prospective claimant and did not need to undertake a further early-conciliation notification.

4. The cross-appeal was allowed on the two TUPE points. The Tribunal could not assume that employment liability transferred without deciding whether the Claimant was employed immediately before the transfer within Regulation 4(3). Nor could it assume that consultation liability transferred wholly to the transferee: Regulation 15(9) imposed joint and several liability. Both matters affected the hardship assessment. The parties were given 21 days to make written submissions on disposal.

• Employment Appeal Tribunal: Allowed the Claimant's appeal against refusal of the amendment. Allowed the transferee's cross-appeal only on the Regulation 4(3) and Regulation 15(9) TUPE issues. Disposal was reserved pending written representations.
• Employment Tribunal, Nottingham: In a reserved judgment sent on 12 January 2015, found a relevant transfer, refused the application to pursue claims against the transferee, and struck out those claims as out of time.