GTR Ltd v Rodway & Ors

When deciding whether to permit an amendment, an employment tribunal must apply the Selkent guidance to the claim actually pleaded and the proposed claim. An amendment introducing a blacklisting claim was not a mere relabelling of claims for religion-or-belief discrimination and holiday pay. The causes of action, essential facts and remedies were materially different.

Time limits form part of the discretionary exercise. The tribunal must consider both whether the original claim was in time and whether the proposed amended claim is time-barred, including whether it is just and equitable to extend time under the Employment Relations Act 1999 (Blacklists) Regulations 2010. It may defer a time-limits issue, but must address that choice coherently when deciding the amendment application.

The claimants, who had taken industrial action, alleged that their employer withheld agreed backdated holiday pay unless they signed an undertaking not to participate in further industrial action. Their unrepresented ET1 referred to unpaid holiday pay and discrimination on grounds of religion or belief, but not to blacklisting legislation.

After solicitors became involved, the claimants sought to amend the claims to allege breaches of the Employment Relations Act 1999 (Blacklists) Regulations 2010. Employment Judge Sage allowed the amendment, held the claims in time and declined to strike them out. The employer appealed.

The central issues were whether the amendment was merely a relabelling of the original claims and whether the tribunal had properly addressed limitation issues under the Selkent guidance.

1. Appeal allowed. The decision permitting the amendment was flawed and the application to amend was remitted to a different employment judge.

2. The judge correctly identified that the Selkent guidance required consideration of the amendment’s nature, limitation and the timing and manner of the application, followed by a balance of hardship. However, she erred in treating the proposed blacklisting claims as a mere relabelling of the original ET1.

3. A claim under the Employment Relations Act 1999 (Blacklists) Regulations 2010 requires a prohibited list and its use in connection with detrimental treatment. It is a distinctive statutory form of discrimination. The original ET1 contained some related factual allegations, but did not allege use of a prohibited list. It also pleaded an unsustainable religion-or-belief claim and a claim that holiday pay was owed. The proposed amendment materially changed the legal and factual issues and transformed the remedy into compensation at large, normally starting at £5,000.

4. The limitation analysis was also inadequate. The tribunal had to consider whether the original claims were time-barred, as well as whether the proposed blacklisting claims were brought after expiry of the relevant period. It could defer those questions under Galilee, but its conclusion that the claims were in time was inconsistent with its earlier indication that time could be addressed at trial. It also failed adequately to engage with the period between payment of the arrears in January 2019 and the amendment hearing in June 2019.

5. The judge was entitled to take account of the claimants’ initial lack of representation, the early draft amendment and the absence of specific evidential prejudice. Nevertheless, the hardship balance might have differed without the error that the amendment introduced no new claim. The reconsideration must address the original and proposed claims, limitation, any continuing act, and any just-and-equitable extension. The prior refusal to strike out for lack of reasonable prospects was unaffected.

• Employment Appeal Tribunal: allowed the employer's appeal and remitted the amendment application for reconsideration by a different employment judge.
• Employment Tribunal, London South: Employment Judge Sage, on 5 June 2019, allowed an amendment to plead claims under the Employment Relations Act 1999 (Blacklists) Regulations 2010, held the claims in time and refused strike-out.