Brettle & Ors v. Dudley Metropolitan Borough Council

An Employment Tribunal’s permission to amend a claim does not, without clear wording and a judicial determination, decide whether the amended claims are within time. Limitation issues under Working Time Regulations 1998 must remain for judicial determination where they have neither been argued nor determined.

A judge of equivalent jurisdiction may vary an earlier case-management order under Rule 29 only where this is necessary in the interests of justice. A disagreement about the meaning of the earlier order, without a material change of circumstances or other substantial reason, does not satisfy that condition.

The Claimants brought multiple claims for holiday pay, including claims under the Working Time Regulations 1998. Employment Judge Warren granted permission to amend the claims to include deductions arising after presentation of the claim forms, while recording that limitation issues were reserved.

When the parties later disagreed about the effect of that decision, Acting Regional Employment Judge Findlay held that no residual discretion to extend time had been reserved and declined to permit a later determination of that issue. The Claimants appealed.

The central issue was whether the earlier amendment decision left time-limit questions, including any discretion to extend time, for later judicial determination.

1. Appeal allowed. The only proper construction of the Warren Decision was that amendment was permitted, but all unresolved limitation issues remained for later determination by the Employment Tribunal. The Respondent’s consent to amendment and reservation of its right to raise time limits did not establish that amended claims were out of time or that the Tribunal had excluded any statutory discretion.

2. The earlier Tribunal had not heard evidence or argument on the individual dates of deductions, any breaks in an alleged series, or the circumstances relevant to an extension of time. It could not therefore have made a reasoned decision precluding later consideration of those matters. Time limits are for judicial determination, not agreement between the parties: Radakovits v Abbey National plc [2009] EWCA Civ 1346.

3. The Findlay Order effectively varied the Warren Decision by attributing to it a meaning it could not bear. Applying Serco Ltd v Wells [2016] ICR 768, Rule 29 permitted interference with an earlier order of a judge of equivalent jurisdiction only where necessary in the interests of justice. The parties’ later dispute over its meaning was not a material change of circumstances, material omission or misstatement, or another substantial reason justifying variation.

4. In any event, the Findlay Order erred by precluding determination of the limitation issue. The Employment Tribunal must decide whether it has jurisdiction in respect of the remaining Claimants under Regulation 30(2) of the Working Time Regulations 1998, including any discretion to extend time identified in Transport and General Workers Union v Safeway Stores Ltd UKEAT/0092/07.

5. The case was remitted to a differently constituted Tribunal in the Birmingham region to determine limitation, jurisdiction and any unresolved remedy matters.

• Employment Appeal Tribunal: allowed the Claimants’ appeal from the Findlay Order and remitted the outstanding limitation and remedy issues to a differently constituted Tribunal.
• Employment Tribunal, Birmingham: Acting Regional Employment Judge Findlay held that the earlier amendment decision had reserved no residual discretion to extend time and declined to direct a further hearing on that issue.
• Employment Tribunal, Birmingham: Employment Judge Warren granted permission to amend the claims to include post-presentation deductions, while leaving unresolved limitation issues for subsequent examination.