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 Notice of Appearance they disputed that there had been an employment relationship between themselves and Ms Gillick. They said ‘you were employed by BP’. She then applied to be allowed to add the defendant as a party. The defendant said that she was now well out of time, and Mrs Gillick now appealed an order to that effect.
Held: BP was to be added as a party. Whether or not to do so was a matter for the discretion of the tribunal. There was no time limit as such which applied to the addition of new or substituted parties. The Industrial Tribunal should treat an application to amend the complaint by the addition of a new respondent as a question of discretion, having regard to all the circumstances, not as one to be settled by the application of the rules of time-bar.
Lord Coulsfield said: ‘The presence of absence of a connection between the respondents may well be relevant in considering whether or not a genuine mistake has been made , and whether the Industrial Tribunal should exercise its discretion to allow the mistake to be corrected, but such considerations are relevant, if at all, as matters to be taken into account in exercising the discretion, rather than as limitations on the circumstances in which the discretion can be exercised.’ As to the case of Cocking: ‘We do not . . think that the Cocking approach is necessarily limited to cases in which the original and the new respondents are related as principal and subsidiary, or in some similar way. The presence or absence of a connection between the respondents may well be relevant in considering whether or not a genuine mistake has been made, and whether the industrial tribunal should exercise its discretion to allow the mistake to be corrected, but such considerations are relevant, if at all, as matters to be taken into account in exercising a discretion, rather than as limitations on the circumstances in which the discretion can be exercised.’
Lord Coulsfield
[1993] IRLR 437
Employment Protection (Consolidation) Act 1978 67(2), Sex Discrimination Act 1975 76(1), Industrial Tribunals (Rules of Procedure) (Scotland) Regulations 1985 (1985 no 17) 1 2 10 13(1) 14
England and Wales
Citing:
Cited – Cocking v Sandhurst (Stationers) Ltd NIRC 1974
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 . .
Cited by:
Applied – Drinkwater Sabey Ltd v Burnett and Another EAT 5-Oct-1994
. .
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 – McDermott v Florence Clothiers (Scotland) Ltd Original Shoe Company Ltd EAT 18-Nov-2004
EAT Practice and Procedure – Application/Claim. . .
Cited – Argyll and Clyde Health Board v Foulds and others EAT 11-Aug-2006
EAT Claimant sought to add a new respondent by way of amendment, almost seven months after he was dismissed by the existing first respondents and some four months after he had lodged his claim with the tribunal. . .
Lists of cited by and citing cases may be incomplete.
Employment, Discrimination, Scotland
Updated: 30 December 2021; Ref: scu.276505