A Thomas v St Mungo Housing Association

A pleaded reference to legislation does not, without facts identifying the particular complaint, commence every possible claim under that legislation. A claim for compensation for untaken annual leave under Regulation 14 of the Working Time Regulations 1998 therefore required amendment where the claim form referred only generally to the Regulations and alleged matters concerning rest breaks and time off in lieu.

An amendment decision is a discretionary case-management decision. On appeal, the Employment Appeal Tribunal will intervene only for legal error, material failure to consider relevant matters, reliance on irrelevant matters, or perversity. Brief reasons are sufficient where the tribunal has applied the correct multi-factorial approach and made clear that it balanced the relevant considerations.

The claimant, a project worker whose employment ended in January 2019, brought claims including unfair dismissal and disability discrimination. During case management she sought to pursue three monetary claims: compensation for untaken annual leave under Regulation 14 of the Working Time Regulations 1998, unlawful deductions from wages, and breach of contract for historic unpaid work.

Employment Judge Goodrich allowed the annual-leave amendment while preserving the respondent’s ability to raise limitation at the final hearing. He refused permission to add the deductions and breach-of-contract claims. The claimant appealed, contending that the annual-leave claim was already pleaded, that the reasons for refusing the deductions claim were inadequate, and that refusal of the contract amendment was perverse.

1. Appeal dismissed on all grounds. The Employment Judge was entitled, and was right, to treat the annual-leave claim as an amendment. The ET1 and accompanying particulars did not mention holiday pay or facts from which that complaint could be identified. Their reference to the Working Time Regulations 1998 and their allegations about rest breaks and time off in lieu did not give notice of a Regulation 14 annual-leave claim.

2. The earlier case-management summary did not decide that an annual-leave claim was extant or in time. It made no ruling on the construction of the claim form or limitation, and left identification of the issues unfinished. Accordingly, the later Employment Judge did not overturn an earlier ruling by requiring amendment.

3. The Employment Judge correctly applied the amendment principles in Selkent Bus Co Ltd v Moore, [1996] ICR 836. An amendment application requires a balanced, multi-factorial assessment. No single factor is necessarily determinative. The reasons adequately recorded the parties’ submissions, the governing principles, the relevant factors, and the different conclusions reached for the three proposed amendments. An appellate court should not subject such case-management reasons to excessively minute analysis.

4. The refusal to permit the unlawful-deduction amendment was therefore adequately reasoned. The refusal of the historic contract claim was not perverse. The Employment Judge could properly take account of its lateness, its substantial and new character, likely prejudice from investigating a claim extending over several years, and the claimant’s ability to pursue it in the County Court.

• Employment Appeal Tribunal: dismissed the claimant’s appeal: [2022] EAT 79.
• Employment Tribunal: Employment Judge Goodrich, by decision sent on 10 March 2020, permitted the Regulation 14 annual-leave amendment subject to any limitation argument and refused permission to add unlawful-deduction and breach-of-contract claims.