EAT Practice and Procedure : Amendment – Case management
1. These proceedings involve approximately 1,600 individual claims for unfair dismissal arising out of mass redundancies when the Respondent, ‘Remploy’, closed some 60 plants in 2012 and 2013.
2. The Employment Tribunal had carefully and effectively managed the case on the basis of proceeding with a limited number of lead or test cases, raising generic issues that applied across the board to all Claimants, as a result of there having been national policies applied across the country to redundancies in all Remploy facilities.
3. The Claimants were members of trade unions and represented by experienced solicitors and counsel. The claims forms had been professionally drafted. The allegations of unfairness included the allegation that the Respondent had failed to consult with the Claimants in relation to possible redeployment to other factories. Prior to September 2014 the parties had been working on the basis of the case management model; the process of preparing witness statements and giving disclosure was well under way and a hearing date had been set for November 2014.
4. In September 2014 the Claimants applied to raise further issues as to unfair selection for redundancy and failure to consider various possible redeployments other than to ‘other factories’. These issues did not arise out of any national policies but arose on a plant by plant basis. The Claimants maintained that the new allegations were simply further Particulars of allegations already pleaded and that permission to amend was not required. However they sought, and were granted, permission to amend. The Respondent argued that the effect of allowing the amendments would be to fracture the existing case management model as the new issues (which had not been particularised, nor were the Claimants concerned identified) were not capable of being determined on the basis of the existing case management model and would lead to delay (the proceedings were in fact adjourned on two further occasions) and added expense of providing further witness statements and disclosure. The Respondent also claimed that it was prejudiced by the proposed amendments as its work force, including managers with the relevant knowledge had been dispersed and documents and email archives were no longer available.
5. The Employment Judge considered that he was bound by the decision in Langston v Cranfield University [1998] IRLR 172 to investigate in any case of unfair dismissal by reason of redundancy, as implicit in that claim, that the unfairness incorporated unfair selection, lack of consultation and failure to seek alternative employment on the part of the employer, even if not specifically pleaded or raised as issues by the Claimants.
6. The Employment Appeal Tribunal held that the Employment Judge had fallen into error, firstly by allowing amendments that had not been fully formulated or particularised and by considering them together rather than examining each proposed amendment separately. Without properly formulated and particularised draft amendments it was impossible for the Employment Tribunal (or the Respondent) to consider how the amendments would affect the existing case management model and whether or not they could be accommodated by a limited number of lead or test cases, the effect on existing hearing dates, prejudice to the Respondent, for example in identifying necessary witnesses and having access to relevant documentation and information. The Employment Tribunal should also have considered the reasons for the delay by the Claimants in putting forward the suggested amendments and when they or their legal representatives were first aware of the relevant factual basis for the ‘new’ allegations. It was also necessary to consider the effect on any increase in likely costs to the parties and on expenditure of the resources of the Employment Tribunal.
7. The decision in Langston had no blanket application and no application to a case such as the instant case in which the parties were legally represented, had defined in their pleadings the issues they wanted decided by the Employment Tribunal and where there had been extensive and comprehensive case management on the basis of the pleadings.
8. The permission of the Employment Tribunal was necessary to add new Particulars in any event and it had to consider whether or not to allow amendment on conventional principles as set out for example in Selkent Bus Co Ltd v Moore [1996] IRLR 661, [1996] ICR 836.
9. Notwithstanding the reluctance of the Employment Appeal Tribunal to interfere with discretionary case management decisions of Employment Tribunals, the decision in the instant case to grant permission to amend was sufficiently flawed as to require being set aside
Serota QC HHJ
[2015] UKEAT 0405 – 14 – 2404
Bailii
England and Wales
Employment
Updated: 29 December 2021; Ref: scu.545913
