THE INDUSTRIAL TRIBUNALS

CASE REF:	1621/16

CLAIMANT:			Sinead Foley

RESPONDENT:		O’Neills Irish International Sports Company Ltd

DECISION ON A PRE-HEARING REVIEW
The decision of the tribunal is as follows:-

(i)	The claimant’s application for leave to amend her claim in accordance with the proposed draft amendments lodged with the Office of the Tribunals in a letter dated 10 November 2016 is granted and the said claim is so amended.

(ii)	The respondent, if it wishes to present an amended response to the claimant’s claim, so amended, is ordered to do so within seven days from the date this decision is issued to the parties.

(iii)	If either party wishes to issue any additional Notices for Additional Information and/or Discovery and Inspection, arising out of the said amendments, then it is ordered that any such Notice must be issued to the other party within 14 days from the date this decision is issued to the parties and replies thereto must be made within 14 days thereafter.

Constitution of Tribunal:
Employment Judge (sitting alone):	Employment Judge Drennan QC

Appearances:
The claimant was represented by Ms B-L Herdman, Barrister-at-Law, instructed by Equality Commission for Northern Ireland.
The respondent was represented by Mr J Kennedy, Barrister-at-Law, instructed by McCay, Solicitors.

Reasons

1.	For the reasons set out in the Record of Proceedings dated 8 November 2016 this pre-hearing review was directed to be listed to determine the following issue, namely:-

“To consider and determine the application of the claimant for an Order for leave to amend her claim in accordance with the proposed draft amendments notified to the respondent and lodged with the tribunal on or before 14 November 2016.”

	The proposed said amendments to the claimant’s claim were contained in a letter dated 10 November 2016, seeking to insert an additional paragraph before the final paragraph of the statement at 7.4 of the claimant’s claim form and which stated as follows:-

“As outlined above, my medical condition remains under investigation and review.  I have not yet received a finalised diagnosis.  If, on hearing my claim and in consideration of any additional medical evidence that may arise, the tribunal considers that my condition does not amount to a disability, for the purposes of the Disability Discrimination Act 1995 (DDA), I submit that nevertheless the respondent perceived that I had a disability at the time of dismissal and that this perception was the sole reason for my dismissal.  In dismissing me, the respondent acted on the basis that I was disabled.  I submit that although the EC Directive 2000/78 does not explicitly extend to cases of perceived disability, that it should be inferred that such discrimination is covered by the Directive and that the DDA be construed by taking a broad approach to dispense with the requirement of actual disability and apply the terms of the Directive directly.”

	In addition, in the said letter, the claimant’s representative stated:-

“The amendments is sought to include specific reference to the issue of perceived disability discrimination.  It is submitted that this is a matter of construction rather than substance and does not introduce a new head of claim.  The claim for disability discrimination was brought within time. 

Further, the factual basis for the legal issue for perceived disability discrimination is as already set out in the original claim.  There are no additional facts introduced in the amendment.  Finally the respondent has been on notice that the issue of perceived disability discrimination was being raised by the claimant since at least August 2016 and it is respectfully submitted that an amendment to the claim in the above terms would cause no prejudice to the respondent in their defence of this claim.”

Following receipt of the said letter dated 10 November 2016, on or about 14 November 2016, the respondent’s representative considered its position and in an e-mail dated 18 November 2016 stated as follows:-

“  ...  For the avoidance of doubt, I confirm that the respondent objects to the claimant’s application to amend its ET1.  ...

Generally our client’s position on this matter is that the claimant has had the benefit of legal representation throughout this claim and her ET1 was drafted by Mr Andrew Lyttle, partner at Dickson & McNulty, Solicitors.  The claimant’s claim as it stands is that she is disabled.  The new facts being relied upon are that she was not disabled, but that her employer perceived her as being disabled and sacked her on the grounds of the perceived disability.  In view of the foregoing, the proposed amendment adds or substitutes a wholly new claim or cause of action which is not connected to the original claim at all.

... .”

In light of the foregoing, and given the respondent’s representative’s objection, this pre-hearing review was arranged to consider and determine the issue, as set out above, in accordance with the tribunal’s normal practice, having regard to the terms of Rule 17(2) of the Rules of Procedure.

2.	In determining the issues, as set out in the previous paragraphs, the following legal principles, in my judgment, were relevant to same, as set out in the following                 sub-paragraphs.  

2.1	As stated in Blackstone’s Employment Law Practice at Paragraphs 6.37/6.38 the general position in relation to the issue of amendments in Employment Tribunal is set out:-

		“6.37

(1)	Both the claimant and respondent can amend their pleadings and in deciding whether to grant any such amendments the tribunal should attempt to do justice between the parties.

(2)	This amendment can include addition of new claim, in limited circumstances, even where the time-limit for the new claim has expired.

...

(4)	where amendment leads to an adjournment by the hearing, the party at fault will frequently have to pay the costs incurred.

6.38	Selkent principles

	The leading authority in Selkent Bus Co Ltd  v  Moore [1996] ICR 836.  The EAT there stated that, when faced with an application to amend, a tribunal’s discretion should be exercised in a way which is consistent with the requirements of ‘relevance, reason, justice and fairness consisted in all judicial discretions ... .” 

2.2	In Harvey on Industrial Relations and Employment Law, Volume 4, Section P1, it has been helpfully stated:-

“311	Employment Tribunals have always had a general discretion to grant leave to amend the claim.

...

	The power is, as Mummery J pointed out in Selkent Bus Co  v  Moore (in the course of a detailed review of the practice and procedure relating to applications to amend), a judicial discretion to be exercised ‘in a manner which satisfies the requirements of relevance, reason, justice and fairness inherent all judicial discretions’.  Applications to amend may cover a wide range of matters.  Some may be minor, such as the correct of clerical and typing errors or the addition or deletion of factual details of existing allegations, whereas others may be substantial involving new factual allegations which change the basis of the claim, or the additional of an entirely new claim or cause of action, or the additional substitution of respondents.  There is no time-limit for making an application to amend, and it may be made at any time up and including the date of the substantive hearing (although, as will be seen, the longer delay in making the application of a substantial nature, the greater the scope for it being rejected).  Most applications are however made in advance of the hearing and are dealt with by an Employment Judge at a preliminary hearing.

311.01	The way in which the discretion will be exercised will, as indicated by Mummery J in the Selkent case, largely be governed by the nature of the application itself.  If it is manifestly hopeless, it may be refused outright, without any reference to the respondent.  If the application is not sufficiently substantial or controversial to justify seeking representations from the respondent, it may be granted ex parte, although in this situation, if the other side subsequently objects, the tribunal should consider the objections and decide whether to affirm, rescind or vary the order which has been made.  If, however, the application to amend is arguable and substantial, and could reasonably be opposed, the correct procedure is for a tribunal to ask the other side whether it consents or objects to the amendment, and if it objects, to state the grounds of objection.  A decision will then be made after hearing both sides.  Before making that decision, however, the tribunal must take account of all the circumstances, and balance the injustice and hardship of allowing the amendment against the injustice and hardship of refusing it.  Although an oral hearing is not required to determine every application to amend, it will normally be necessary, where the refusal of the amendment would mean that the claimant’s claim will certainly fail, where the application for the amendment is contested, and where the application requires close examination of all the circumstances before a decision can be made as to whether to grant or refuse the application (Smith  v  Gwent District Health Authority [1996] ICR 1044 at 1050, EAT).”

311.04	A distinction may be drawn between (i) amendments which are merely designed to alter the basis of an existing claim, but without purporting to raise a new distinct head of complaint;                 (ii) amendments which add or substitute a new cause of action but which is linked to, or arises out of the same facts as the original claim; and (iii) amendments which add or substitute a wholly new claim or cause of action which is not connected with the original claim at all ...

312	Amendments fall within Category (1) are not affected by the time-limits, as the nature of the original claim remains intact, and all that is sought to be done is change the grounds on which the claim is based (it is to be noted that, when determining whether the proposed amendment falls within the existing claim as pleaded or constitutes an entirely new claim, regard is to be had to the whole of the ET1, not just to the general description of the complaint in Box 1 : Ali  v Office of National Statistics [2004] EWCA Civ 1363. ...  The new cause of action will not be time-barred because no separate cause of action is being added, but again whether the amendment is allowed will depend on factors such as hardship and delay.  Selkent Bus Co Ltd v Moore is illustrative of the problems faced by a claimant who seeks to amend at a late stage.  ...  The factors which influenced the EAT in refusing the amendment were –

(a)	the delay in making the application to amend, coupled with a lack of explanation from the claimant as to why the new grounds, which must have been known to him at the time, had not been put forward in the original application;

(b)	the absence of hardship to the claimant as his case would in any event proceed on the argument basis; and

(c)	the greater risk of hardship to the respondents if the amendment were allowed, resulting from an adjournment of the proceedings and a longer hearing, with a concomitant increase in costs that would not be recoverable.”

...

312.01	So far as Category (ii) is concerned, the tribunals and courts have always shown a willingness to permit a claimant to amend to allege a different type of claim from the one pleaded if this can be justified by the facts set out in the original claim.  It is usually described as putting a new ‘label’ on facts already pleaded.  Thus a claimant was rarely prevented from amending his claim where, for example, he had sought a redundancy payment when his proper claim was for unfair dismissal, or vice versa, as the factual basis for both types of claim was invariably the same  ...  It has been held that it is not good law to apply the time-limits to such amendments ... .

312.05	It is only in respect of amendments falling into Category (iii) – entirely new claims unconnected with the original claim as pleaded – that the time-limits will require to be considered.  In that situation, the tribunal must consider whether the new claim is in time and, if it is not, whether time should be extended to permit it to be made (Selkent Bus Co Ltd  v  Moore [1996] ICR 836 at 843 H).  In order to determine whether the amendment amounts to a wholly new claim, as opposed to a change of label, it will be necessary to examine the case as set out in the original application to see if it provides a ‘causative link’ with the proposed amendment (see Housing Group  v  Bryant [1999]ICR 123) ...

	However, although there may be an absence of a link between the case as pleaded in the original claim and the proposed amendment, this will not be conclusive against the amendment being allowed.  In Evershed  v  New Star Asset Management [UKEAT/0249/09], Underhill J pointed out that it is no more than a factor, the weight to be given to it being a matter of judgment in each case (Paragraph 24).

312.06	When considering whether to allow an amendment an Employment Tribunal should analyse carefully the extent to which the amendment would extend, the issues and the evidence  ...  The Court of Appeal [in Evershed] approved this approach and agreed the amendment did not raise ‘any materially new factual allegations’  ...  Rimer LJ held ‘the thrust of the complaints in both is essentially the same’.  The fact the whistle blowing claim would require an investigation of the various component ingredients of such a case did not mean that wholly different evidence would have to be adduced  

...

312.08	Although the decisions in the above cases seem to suggest that, where an entirely new claim is being advanced by way of amendment, the critical question is whether it is in time, and if not, whether an extension should be granted under the statutory ‘escape clause’ relevant to that claim, other divisions of the EAT have held, even in the case of an entirely new claim made out of time, there is a residual discretion to allow the amendment to be made on the basis of the hardship/injustice criteria mentioned in Selkent ... rather than on the statutory basis.

	...”

Further according to Underhill J in the TGWU  v  Safeway Stores Ltd [UKEAT/0092/07], case ‘the position on the authorities is that an Employment Tribunal has a discretion in any case to allow an amendment which introduces a new claim out of time’; though he did add : ‘no doubt the greater the difference between the factual and legal issues raised by the new claim and by the old the less likely it is that it will be permitted, but that will be a discretionary consideration and not a rule of law’. Underhill J allowed a new out of time claim by way of amendment and, in doing so, applied the hardship/injustice test rather than reasonable practicability. 

2.3	Under Rule 10(2)(p) of the Industrial Tribunals Rules of Procedure 2005, contained in Schedule 1 of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005 (‘the Rules of Procedure’), an                   Employment Judge has a discretion whether or not to give leave to amend a claim.  Over the years, there has been considerable legal authority as to how that discretion should be exercised in relation to the various heads of distinction, referred to in Harvey, as set out above, including, in particular, the well-known guidance of Mummery J in the case of Selkent Bus Company  v  Moore [1996] ICR 836, as referred to above.  Of course, in determining whether or not to exercise the discretion to grant the amendment, each case will depend on its own particular facts and fact specific.  

	In a recent decision, in the case of Abercrombie & Others  v  AGA Rangemaster Ltd [2013] EWCA Civ 1148, Underhill LJ has reviewed the authorities in this area, which I consider is helpful to repeat in some detail:-

“47	...  There is nothing in the Rules or the case-law to say that an amendment to substitute a new cause of action is impermissible.  The Judge evidently had in mind the language of Mummery J in the relevant part of the guidance in Selkent which he was seeking to follow.  The passage reads: 

‘(4)	Whenever the discretion to grant an amendment is invoked, the tribunal should take into account all the circumstances and should balance the injustice and hardship of allowing the amendment against the injustice and hardship of refusing it.

(5)	What are the relevant circumstances?  It is impossible and undesirable to attempt to list them exhaustively, but the following are certainly relevant:

(a)	The nature of the amendment

Applications to amend are of many different kinds, ranging, on the one hand, from the correction of clerical and typing errors, the additions of factual details to existing allegations and the addition or substitution of other labels for facts already pleaded to, on the other hand, the making of entirely new factual allegations which change the basis of the existing claim.  The tribunal have to decide whether the amendment sought is one of the minor matters or is a substantial alteration pleading a new cause of action.

(b)	The applicability of time limits

If a new complaint or cause of action is proposed to be added by way of amendment, it is essential for the tribunal to consider whether that complaint is out of time and, if so, whether the time limit should be extended under the applicable statutory provisions ...

(c)	The timing and manner of the application

An application should not be refused solely because there has been a delay in making it.  There are no time limits laid down in the Rules for the making of amendments.  The amendments may be made at any time - before, at, even after the hearing of the case.  Delay in making the application is, however, a discretionary factor.  It is relevant to consider why the application was not made earlier and why it is now being made: for example, the discovery of new facts or new information appearing from documents disclosed on discovery.  Whenever taking any factors into account, the paramount considerations are the relative injustice and hardship involved in refusing or granting an amendment.  Questions of delay, as a result of adjournments, and additional costs, particularly if they are unlikely to be recovered by the successful party, are relevant in reaching a decision.’

If the final sentence of point (5)(a) is taken in isolation it could be understood as an indication that the fact that a pleading introduces ‘a new cause of action’ would of itself weigh heavily against amendment.  However it is clear from the passage as a whole that Mummery J was not advocating so formalistic an approach.  He refers to ‘the … substitution of other labels for facts already pleaded’ as an example of the kind of case where (other things being equal) amendment should readily be permitted – the contrast being with ‘the making of entirely new factual allegations which change the basis of the existing claim’.  (It is perhaps worth emphasising that head (5) of Mummery J's guidance in Selkent was not intended as prescribing some kind of a tick-box exercise.  As he makes clear, it is simply a discussion of the kinds of factors which are likely to be relevant in striking the balance which he identifies under head (4).)

48.	Consistently with that way of putting it, the approach of both the EAT and this Court in considering applications to amend which arguably raise new causes of action has been to focus not on questions of formal classification but on the extent to which the new pleading is likely to involve substantially different areas of enquiry than the old: the greater the difference between the factual and legal issues raised by the new claim and by the old, the less likely it is that it will be permitted.  It is thus well recognised that in cases where the effect of a proposed amendment is simply to put a different legal label on facts which are already pleaded permission will normally be granted: see the discussion in Harvey on Industrial Relations and Employment Law Para 312.01-03.  We were referred by way of example to my decision in Transport and General Workers Union  v  Safeway Stores Ltd (UKEAT/0092/07), in which the claimants were permitted to add a claim by a trade union for breach of the collective consultation obligations under section 189 of the Trade Union and Labour Relations (Consolidation) Act 1992 to what had been pleaded only as a claim for unfair dismissal by individual employees.  (That case in fact probably went beyond                   ‘mere re-labelling’ – as do others which are indeed more authoritative examples, such as British Printing Corporation (North) Ltd  v  Kelly (above), where this Court permitted an amendment to substitute a claim for unfair dismissal for a claim initially pleaded as a claim for redundancy payments.” 

2.4	If a claim is in time, or the tribunal considers time should be extended, the tribunal must then still consider the other factors relevant to the exercise of the discretion, as set out previously.  Equally, if the claim is out of time and the tribunal considers time should not be extended under the appropriate test, the issue arises to be considered what is the position and, in particular, is this finding fatal to the application for amendment?  This issue of time, in relation to the exercise of the discretion, gives rise therefore to potentially considerable difficulties.

	It is correct that Mummery J observed in Selkent that if a new complaint or cause of action is proposed to be added by way of amendment, it is ‘essential’ for the tribunal to consider the matter of time-limits.  Indeed, it has been considered in some cases that this dicta would be read as implying, if the claim is out of time and times does not fall to be extended under the applicable legislative test, then the application for amendment must necessarily be refused.  However, Underhill J in Safeway Stores Ltd and again in Abercrombie, as referred to above, makes it clear that, in his view, it is not what Mummery J intended and to do so would be to take what Mummery J said out of context.  According to Underhill J, in Safeway, the reason why it is essential, in Mummery J’s words, that a tribunal consider whether the claim in question is in time is simply that it is ‘a factor’ – albeit an important and potentially decisive one in the exercise of the discretion.  Thus, it would seem that, if the relevant time-limit for presenting the ‘new’ claim has expired, this will not, in itself, prevent the tribunal exercising its discretion to allow the amendment and is therefore not an absolute bar; but it is a significant important factor for the tribunal to weigh in the balance when considering how to exercise its discretion (see further Chaudhary  v  Secretary of State for Health [UKEAT/0512/04]) and UCATT  v  Amicus and Others [2009 ICR 852.  

2.5	Interestingly, in this context, the fact of ‘balance of relevant injustice and hardship involved in refusing or granting an amendment’, as seen in Selkent, has been held, in Ali v Office of National Statistics [2004] EWCA Civ 1363, to be little different to the ‘just and equitable’ ground, which applies in relation to extension of time, under the relevant legislation, in discrimination claims.

	In a recent decision, Langstaff P in Thomson v East Dunbartonshire Council [UKEATS/0049/13], referred to the Mummery test in Selkent of ‘relative injustice and hardship’, whereas the Employment Judge had referred to the ‘balance of hardship’.  Langstaff P commented:-

“It seems to me that the balance of prejudice, essentially, is intended to convey the same concept.  It may perhaps be helpful to return to the words used by Mummery J in future consideration of a case such as this, though frequently ‘balance of prejudice’ is the lawyer’s shorthand for the necessary exercise, purely because it may focus more closely on two separate questions : injustice o the one hand, hardship on the other.  But balance of prejudice is capable of including matters which might not strictly be described as unjust or hard but may nonetheless be relevant.  All the circumstances of course have to be taken into account ....”

In the case of Evershed  v  New Star Asset Management [2009] UKEAT/0249/09, Underhill J, as he then was, said, which was not challenged in the context of the subsequent appeal, to which reference has been made previously:-

“33	... It is not the business of the tribunals to punish parties (or their advisers) for their errors.  In very many, perhaps most, cases where permission is given to amend a pleading, the party in question could if he had been sufficiently careful got it right first time round.”

2.6	In a recent decision by HH Eady QC, in the case of Mist  v  Derby Community Health Service NHS Trust [2016] UKEAT/0170/15, the Employment Appeal Tribunal again confirmed that, when considering issues of amendment, the approach that must be adopted remains that laid down in Selkent Bus Company Ltd  v  Moore [1996] ICR 836; and, in particular, where an application was to add a claim out of time that would not be determinative and neither would any failure of explanation for the delay. It was emphasised the paramount consideration remains the relative injustice and hardship in refusing or granting an amendment.  

3.1	I am satisfied that the claimant’s application for leave to amend the claimant’s claim form, as set out above, is not so ‘manifestly hopeless’, as referred to by Mummery J in Selkent, that the application required to be refused outright by the tribunal, without any reference to the respondent.  Indeed, it was because the application could not be so categorised that the respondent was given the opportunity to consent/object to the said application and, following the objection by the respondent this pre-hearing review was required to be arranged.  I am reluctant, at this stage, to say more about the strength and/or weakness of the proposed amendment, given that a Deposit Order pre-hearing review in this matter has already been arranged for early in the New Year; and, given my decision, as set out below, this amended claim will be the subject of that Deposit Order pre-hearing review.  

3.2	I am also satisfied that the proposed amendment falls within the first classification in Harvey, as referred to previously – being an alternative basis for an existing claim.  Even if I am wrong, and the said proposed amendment gives rise to a new distinct head of complaint/new cause of action, it is linked to or arises out of the same facts as the original claim and therefore falls, in my judgment, within the second classification in Harvey.  In either case, it is therefore not necessary for me to consider further the issue of  time-limits.  

	The relevant principles to determine this application are therefore to be found in Selkent Bus Company Ltd  v  Moore [1996] ICR 836, as approved in the case of Abercrombie and Others  v  AGA Range Master Ltd [2013] EWCA Civ 1148 and, in particular, the judgment of Underhill LJ in Abercrombie at                       Paragraphs 47 – 48 of his judgement, as referred to in the previous paragraphs of this decision.  

3.3	Applying the principles set out in the above authorities, I have no doubt that the amendment, the subject-matter of this application, is a major amendment.  However, although I accept that it is probable there will require to be some further additional evidence given at the hearing of this matter than might have been the case prior to any such amendment, I am not satisfied, that any such additional evidence would significantly increase the amount of evidence which would require to be heard and determined by the tribunal or indeed the length of the hearing (see Evershed and Abercrombie).  Indeed, I suspect that the proposed amendment will involve longer and more detailed legal submissions by the representatives; but again this should not significantly increase the length of the hearing.  

3.4	I am satisfied, on the basis of the submissions by the respondent’s representatives there is no ‘real’ prejudice to the respondent if the said amendment is allowed.  Of course, as in any situation where an amendment is granted, any such amendment will have to be ‘defended’ by the respondent.  However, that is not determinative of any such application.  Indeed, I understand that all relevant witnesses are available to the respondent to respond to the allegations, the  subject-matter of the proposed amendment.  

	Clearly it would have been helpful if this amendment had been set out at an earlier stage.  However, again, any such delay is not determinative of the application.  I also take into account that some explanation for this delay may relate to the uncertainties in relation to the diagnosis of the claimant’s medical condition.  Also, I note this amendment has been proposed following the recent change of representatives on behalf of the claimant.  In this context, I am also conscious of the judgment of Underhill J, as he then was, in the case of Evershed, when he stated:-

“33	...  This is not the business of the tribunals to punish parties (or their advisers) for their errors.  In very many, perhaps most, cases where permission is given to amend a pleading, the party in question could he have sufficiently careful got it right first time round.”

3.5	As properly recognised by both representatives, the paramount consideration, in accordance with the principles led down in Selkent, remains the relative injustice and hardship to the parties in refusing or granting the amendment.  Such an issue is always difficult to determine, not least in carrying out the balancing exercise referred to by Mummery J in Selkent.  This case is no different.

	However, after taking account of my conclusions, as set out in the previous                  sub-paragraphs, I have decided that, in deciding the relevant injustice and hardship involved in granting and refusing the proposed amendment, that the greater hardship and injustice would be for the claimant, if the application was refused.

	Therefore, I have decided that the claimant’s application for an Order for leave to amend her claim, in the terms set out above, is granted; and I ordered that the said claim of the claimant is so amended.

	The respondent, if it wishes to present an amended response to the claimant’s claim, as so amended, is ordered to do so within seven days from the date this decision is issued to the parties.

	Further, if either party wishes to issue any additional Notices for Additional Information are Discovery and Inspection, arising out of the said amendment, then it is ordered that any such Notice must be issued to the other party within 14 days from the date this decision is issued to the parties and replies thereto must be made within 14 days thereafter.

Employment Judge

Date and place of hearing:	22 November 2016, at Belfast

Date decision recorded in register and issued to parties: