The Appellant employee had applied for leave to amend his first application by substituting the name of the parent company. The Tribunal held that the rules of procedure relating to time limits went to their jurisdiction and that the amended application would be allowed but would bear the date of the amendment and would accordingly be out of time. They were satisfied that it would have been reasonably practicable for the second complaint to have been presented in time and both complaints were dismissed.
Held: The appeal was allowed. The rules of the court do not require that the complaint as presented should be free of all defects or should be in the form in which it finally comes before the tribunal for adjudication.
At a hearing before an Employment Tribunal, an application for leave to substitute a fresh Respondent relates back to the date of the original application.
The Court set out seven general propositions as to the correct approach in cases of amendments ‘changing the basis of the claim or . . adding or substituting respondents’.
Sir John Donaldson said: ‘In every case in which a tribunal is asked to amend a complaint by changing the basis of the claim or by adding or substituting respondents they should proceed as follows.
(1) They should ask themselves whether the unamended originating application complied with rule 1 of the Schedule to the Regulations of 1972: see, in relation to home-made forms of complaint, Smith v. Automobile Proprietary Ltd [1973] ICR 306.
(2) If it did not, there is no power to amend and a new originating application must be presented.’
(3) (4) if the new claim sought to be advanced was out of time at the date of the original application there was no discretion in the Employment Tribunal to allow the amendment. However, if it was then in time the Tribunal has a discretion to allow the amendment.
(5) It was essential too consider whther the proposed addition would be used to elide a statutory time bar
(6) In deciding whether or not to exercise their discretion to allow an amendment which will add or substitute a new party, the tribunal should only do so if they are satisfied that the mistake sought to be corrected was a genuine mistake and was not misleading or such as to cause reasonable doubt as to the identity of the person intending to claim or, as the case may be , to be claimed against.
‘(7) in deciding whether or not to exercise their discretion to allow an amendment, the Tribunal should in every case have regard to all of the circumstances of the case. In particular they should consider any injustice or hardship which may be caused to any of the parties including those proposed to be added, if the proposed amendment were allowed or, as the case may be, refused.’
Judges:
Sir John Donaldson P
Citations:
[1974] ICR 650
Jurisdiction:
England and Wales
Cited by:
Endorsed – British Newspaper Printing Corporation v Kelly CA 1989
A group of employees had brought proceedings which appeared (though there was some ambiguity) to be intended as claims for redundancy payments. More than three months after the effective date of termination they sought to amend to plead alternative . .
Cited – Transport and General Workers Union v Safeway Stores Ltd EAT 23-Mar-2007
EAT Practice and Procedure – Amendment
Safeway closed a depot, leading to a large number of redundancies. The Union alleged that consultation was inadequate. Proceedings were initially commenced claiming only . .
Cited – Gillick v BP Chemicals EAT 1993
Ms Gillick had made an application based on sex discrimination in the first place against an agency which had contracted out her services to various divisions of BP Chemicals Ltd. The Respondents were the Company which had done that and in their . .
Cited – Linbourne v B R Constable (Gatwick Moat House) EAT 9-Feb-1993
The application proceeded against one named respondent. Even though the true identity of the intended defendant was known throughout, no application to substitute the correct defendant was made. An unfair diamissal was found, but not as against the . .
Cited – 1A Centre Community Association Ltd v Gwiazda and others EAT 14-Jul-2000
The claimants alleged an unlawful deduction from their wages, and unfair dismissal. The employer appealed, complaining that the limited company had been added late. . .
Cited – Heald Nickinson Solicitors v Summers and others EAT 21-May-2002
The firm of solicitors appealed an order in which they had been substituted as defendants to a claim for unfair dismissal. They said they had been given no opportunity to object. They had taken over part of a firm which had got into difficulties and . .
Cited – Onwuka v Spherion Technology UK Ltd and others EAT 26-Nov-2004
EAT The two appeals raised questions as to (i) whether the Chairman of an employment tribunal had misdirected herself in relation to an application to amend an originating application, and (ii) as to the . .
Lists of cited by and citing cases may be incomplete.
Employment
Updated: 05 May 2022; Ref: scu.270714