EAT PRACTICE AND PROCEDURE – Amendment
TRANSFER OF UNDERTAKINGS – Transfer
TRANSFER OF UNDERTAKINGS – Consultation and other information
Application to amend existing ET proceedings to add a claim against a Second Respondent (the transferee in a TUPE transfer). Without determining the date of the transfer but assuming liability for the Claimant’s employment and any failure to inform and consult transferred to the Second Respondent, the ET nevertheless refused to allow the amendment and struck out the claims against the Second Respondent.
On the Claimant’s appeal and the Second Respondent’s cross-appeal:
Allowing the appeal:
The approach to be adopted by the ET was as laid down in Selkent Bus Co Ltd v Moore  ICR 836; in particular, where the application was to add a claim out of time that would not be determinative, neither would any failure of explanation for the delay. The paramount consideration was the relative injustice and hardship in refusing or granting an amendment.
The ET’s focus had been on what it (permissibly) found to be an absence of explanation by the Claimant. When considering relative injustice and hardship, it permitted the prejudice to the Second Respondent (limited to the inability to take a time-limit point) to outweigh that to the Claimant (denied any right to bring a claim against the transferee in a TUPE transfer). In so doing, it made the time-limit determinative of the application; that was an error of approach and the appeal would be allowed.
Allowing the cross-appeal in part:
The Second Respondent’s procedural arguments relating to early conciliation (raised for the first time by way of cross-appeal) were rejected. To the extent that there was any error in the identification of the prospective Respondent in either early conciliation certificate and/or difference between the details in that certificate and those on the ET1: (i) the ET had been entitled (applying Rule 12(2A) ET Rules 2013) to accept the EC certificate; (ii) in any event, any decision not to reject the ET1 had been taken at an earlier stage and was not the decision under appeal and so could not be cross-appealed at this stage (applying Basildon and Thurrock NHS Foundation Trust v Weerasinghe UKEAT/0397/14/RN); (iii) as for the application to join the Second Respondent, this fell to be considered as a possible amendment to an existing claim and, as such (by analogy with Science Warehouse Ltd v Mills UKEAT/0224/15/DA), did not require a further early conciliation notification (an approach that was consistent with the language of Rule 34 ET Rules 2013 and the overriding objective).
The second and third grounds of cross-appeal would, however, be allowed. The ET had wrongly assumed (without determining the point; which would have required it to first determine the date of transfer) that liability for the Claimant’s employment transferred to the Second Respondent without engaging with the question of whether she had been (relevantly) employed immediately before the transfer for the purposes of Regulation 4(3) TUPE. It had also proceeded on the basis that the entire liability for any failure to consult (under Regulations 13 and 14 TUPE) transferred to the Second Respondent, thus failing to take into account the joint and several liability of transferor and transferee for the purposes of the Regulation 15 claim. These being matters that went to the exercise of the ET’s discretion on the question of allowing the application to amend, further representations would be permitted from the parties in writing on the question of disposal.
Eady QC HHJ
 UKEAT 0170 – 15 – 2201,  ICR 543
England and Wales
Cited – Science Warehouse Ltd v Mills EAT 9-Oct-2015
EAT Practice and Procedure : Amendment – Amendment of an ET claim to add a new cause of action – ACAS Early Conciliation (Section 18A Employment Tribunals Act 1996 (as amended))
At a Preliminary Hearing, . .
Lists of cited by and citing cases may be incomplete.
Updated: 09 January 2022; Ref: scu.559167