EAT Practice and Procedure : Amendment – C remained employed by the transferor of part of an undertaking, in which both he and the transferor said he worked so much as to be assigned to it, after that part was transferred to a transferee employer. He accepted in writing and orally, though not always consistently, that he had not complained to the ET that the transferee’s refusal to accept him as an employee was a dismissal by it. He filed his ET1 asking for compensation in respect of the transfer, because he thought himself at risk of redundancy. Those fears proved justified: he was made redundant by the transferor some 6 months after the transfer. He did not take a number of opportunities to clarify to what his claim for compensation related, despite being asked by R to particularise it; at 3 successive CMDs it was identified as being in respect of a failure to consult. After the second of those, C filed an ET1 claiming dismissal by the transferee. It was not until some 5 months after this that he sought to amend his existing claim to add a complaint of dismissal, arguing that it was intrinsic to his existing claim, and arose out of the same facts. An EJ refused the amendment, on the basis of the principles in Selkent v Moore. C argued that the discretion was flawed in law, in part because the EJ had applied a ‘balance of prejudice’ test whereas Mummery J had referred in Selkent to balancing ‘injustice and hardship’,
Held: The Judge directed himself appropriately, and did not take into account any irrelevant factor or leave out of account any relevant one. There was meaningful difference between ‘prejudice’ on the one hand and ‘injustice and hardship’ on the other. Appeal dismissed.
Langstaff J P
[2014] UKEAT 0049 – 13 – 0603
Bailii
England and Wales
Employment
Updated: 04 December 2021; Ref: scu.526664