BMC Software Ltd v Shaikh

An appellate amendment may be permitted late where it raises a substantial, discrete point of law concerning the Employment Tribunal’s jurisdiction. The tribunal must balance delay and prejudice against the merits of the amendment, the explanation for its lateness, and the interests of justice. Particular weight may be given to an arguable contention that the Tribunal made an order it had no power to make. A short delay may be justified where resolving the point is necessary to prevent an arguably unlawful judgment from remaining unchallenged.

The Reading Employment Tribunal dismissed several sex-discrimination claims but upheld an equal-pay claim based on the sex equality clause. It also upheld constructive and wrongful dismissal claims, including a finding of discriminatory constructive dismissal.

In the employer’s pending appeal, the Employment Appeal Tribunal itself raised a possible issue under Equality Act 2010, section 70 after submissions had closed. The employer applied to re-amend its grounds of appeal to contend that the Tribunal lacked jurisdiction to make the discrimination finding where it rested on the equal-pay claim. The issue was whether that late amendment should be allowed.

1. The application to re-amend the grounds of appeal was allowed.

2. The proposed new ground raised an arguable and substantial question whether section 70 of the Equality Act 2010 excluded a discrimination finding under section 39(2) where the finding was founded solely on breach of the sex equality clause. The EAT did not finally determine that statutory question. It held that, if the point were correct, the Employment Tribunal had made a decision it had no power to make.

3. Applying the amendment considerations discussed in Khudados v Leggate, [2005] ICR 1013, the EAT considered the merits, the explanation for the delay, prejudice, and the interests of justice. The explanation was honest and complete: the point had been overlooked by counsel and by the EAT until after the substantive submissions.

4. The point was a crisp question of law. It required no further evidence and could be resolved with limited further submissions. Although allowing it would delay final disposal and prejudice the respondent, refusing it could expose the employer to compensation which the Tribunal might have lacked jurisdiction to award, including compensation for injury to feelings.

5. The public interest in correcting an arguably jurisdictionally invalid judgment, while the appeal remained before the EAT, outweighed the limited additional delay. The related clarification to the existing ground of appeal was also allowed because it closely reflected the case already advanced.

• Employment Appeal Tribunal: allowed the employer’s application to re-amend its grounds in the pending appeal: [2017] UKEAT 0092_16_0411.
• Employment Tribunal, Reading: dismissed a number of sex-discrimination claims, but upheld an equal-pay claim and consequential constructive and wrongful dismissal claims. No citation is stated.