Pontoon (Europe) Ltd v Shinh & Anor (Amendment)

An Employment Tribunal deciding whether to permit an amendment must consider all the circumstances and balance the respective injustice and hardship of allowing or refusing it. This includes the nature of the amendment, limitation, and the timing and manner of the application.

The Tribunal has a similarly broad discretion to add a respondent after expiry of a limitation period. A brief decision will not disclose an error of law where the reasons, read as a whole, show that the required balancing exercise was undertaken. An appeal against an alternative basis for a decision cannot succeed where the unchallenged primary basis independently supports the result.

The claimant presented an in-time whistleblowing claim against National Grid Plc after his assignment ended. He later sought to add Pontoon (Europe) Ltd as a respondent to a claim concerning the termination of his engagement and to a further claim alleging blacklisting.

The Employment Tribunal permitted the amendments and later refused Pontoon's application for reconsideration. It found that the blacklisting claim had been brought in time under section 48(3) of the Employment Rights Act 1996. It also held, alternatively, that the balance of hardship and injustice favoured allowing that amendment.

Pontoon appealed the amendment and reconsideration decisions. The central issues were whether the Tribunal had properly exercised its discretion to allow the amendments and add Pontoon as a respondent.

1. Appeals dismissed. The Employment Tribunal made no error of law in allowing Pontoon to be added as a respondent to the termination claim or in allowing the blacklisting claim against it.

2. The applicable approach to amendment was that in Selkent Bus Co v Moore, [1996] ICR 836. The Tribunal had to consider all the circumstances and balance the injustice and hardship of allowing the amendment against those of refusing it. Relevant matters included the nature of the amendment, limitation, and the timing and manner of the application.

3. The Tribunal's conclusion on the termination claim was brief, but its reasons had referred to the relevant Selkent guidance and to Pontoon's asserted prejudice. The prejudice to the claimant in losing a claim which was not manifestly hopeless was obvious. The claim had been presented in time against National Grid, while the Tribunal could reasonably treat the addition of a respondent to that claim as less problematic than adding a new, arguably time-barred claim.

4. The blacklisting claim had been found to be in time under section 48(3) of the Employment Rights Act 1996, and the challenge to that finding was no longer before the Appeal Tribunal. The challenge to the Tribunal's alternative discretionary basis could therefore not affect its decision. In any event, the Tribunal had carried out the necessary balance. It was relevant that a proposed respondent could reasonably have anticipated proceedings; it was not an irrelevant consideration.

5. The reconsideration appeal depended on establishing an error in the amendment decision. As no such error was shown, reconsideration was unnecessary.

• Employment Appeal Tribunal: appeals against the amendment decision and refusal of reconsideration dismissed.
• Employment Tribunal, Midlands West: amendment judgment dated 6 December 2017 permitted Pontoon to be added and allowed the amendments; reconsideration judgment dated 15 February 2018 refused reconsideration.