What factors must an Employment Tribunal consider when allowing amends to a claim form?
21st October, 2019
In Pontoon (Europe) Limited v (1) Mr Shinh and (2) National Grid Plc, the Employment Appeal Tribunal held that the Employment Tribunal had not erred in law in deciding to allow the amendment to the ET1 form and the addition of Pontoon (Europe) Limited to the original claim.
There are no specific provisions contained within the Employment Tribunals Rules of Procedure 2013 (as amended) governing amendments to a claim, but each case must be dealt with fairly and justly. In terms of additional parties, the Employment Tribunal may add any person as a party if it is in the interests of justice.
Mr Shinh supplied his services through a company known as Global Sourcing International Limited (GSI). GSI entered into a contract with Pontoon (Europe) Limited, to provide consultancy services to National Grid Plc (the First Respondent to the claim) commencing on 27 September 2016.
Between the 4 – 31 October, Mr Shinh made public interest disclosures to the First Respondent. Mr Shinh also notified Pontoon (Europe) Limited (the Second Respondent), who re-directed him towards the First Respondent. Mr Shinh alleged that he highlighted his concerns within an email to both Respondents on 31 October 2016. Mr Shinh was then invited to a meeting on 1 November 2016 with National Grid and a representative from Pontoon. The First Respondent alleged that Mr Shinh was rude and aggressive; as a result, he was asked to refrain from his duties and leave the premises.
The contract with the Second Respondent was terminated on 11 November 2016. Mr Shinh sent a letter before action to the Second Respondent on the same day, asserting his claim for £100,000.
In a letter dated 15 November 2016, the Second Respondent denied that Mr Shinh had any cause of action against them. On 21 November 2016 they confirmed in writing that, even if Mr Shinh had made a protected disclosure, the contract was not terminated for that reason. The Second Respondent claimed his engagement was terminated due to poor timekeeping, uncooperative attitude and behaviour, and the habit of promoting his own company during working hours.
Mr Shinh brought a claim against the First Respondent on the grounds of whistleblowing. The claim form did not name the Second Respondent, but did reference the contract and termination, both of which were linked to the Second Respondent. Whilst Mr Shinh did not have a contract of employment with either party, he argued that he was a worker under the Employment Relations Act 1996 and was therefore entitled not be subject to a detriment because he had made a public interest disclosure or be blacklisted.
At a hearing on 16 November 2017, Mr Shinh requested that the Second Respondent be added to proceedings, on the grounds of unlawful termination of contract and detriment; despite the latter being substantially out of time. Mr Shinh argued that he had been blacklisted by the Second Respondent and Adecco Group, which prevented him from finding work for a considerable period of time. This application was opposed by the Second Respondent.
The Employment Tribunal concluded that whilst the application to amend the claim against the First Respondent, to include detriment, was out of time, “the injustice to the Claimant in disallowing his application to amend outweighs by far the injustice and hardship to the First Respondent”; on this basis, the application was allowed.
Further, the Employment Tribunal held that the Second Respondent would be added as a party to proceedings and allowed the claims of unlawful termination of contract (‘termination claim’) and detriment (‘blacklisting claim’).
In relation to the termination claim, the Employment Tribunal stated that “the amendment would have little effect on the overall length and cost of proceedings as the point engages the same evidence as the in time claim already pleaded against the First Respondent”.
The blacklisting claim was held to be a new head of claim. Whilst the Second Respondent argued that the time limit expired on 10 April 2017 and that this was a new and substantial cause of action, the Employment Tribunal held that it was not reasonably practicable for Mr Shinh to file proceedings by this date, without concrete evidence, and that he did not unreasonably delay thereafter. The Employment Tribunal had stated that it would have allowed Mr Shinh to add the blacklisting claim even if it was out of time, when taking into account the injustice and hardship caused to the parties.
The Second Respondent appealed these decisions and argued that the Selkent factors had not been properly considered, in that they had not balanced the injustice and hardship of allowing the amendments against that of refusing them. These factors include the nature of the amendment, the applicability of time limits and the manner of the application.
Employment Appeal Tribunal
The Employment Appeal Tribunal (EAT) had to consider the Employment Tribunal’s discretion to allow an amendment to a claim form, which introduces a new claim out of time, and its discretion to add a respondent to a claim, after the time limit for commencing that claim had expired.
There are no specific provisions within the Employment Tribunals Rules of Procedure 2013 (as amended) governing amendments to a claim, but Employment Tribunals are required to deal with each case fairly and justly. In terms of additional parties, rule 34 (of the above) states that the Employment Tribunal may add any person as a party if it is in the interests of justice.
The EAT held that the Employment Tribunal had not erred in law in deciding to allow the amendment to the ET1 form and the addition of the Second Respondent to the original claim, which was brought in time. The Employment Tribunal did carry out the requisite balancing act and had not considered irrelevant factors.
On this basis, all grounds of appeal were dismissed.
This case is an interesting insight into the factors the Employment Tribunal consider when looking to amend a claim form and shows that it is not limited to those set out in Selkent. It is for an Employment Tribunal to consider all the circumstances and balance the injustice and hardship of allowing the amendment against that of refusing it.
If you have any questions on the above and how it will affect you, please do not hesitate to get in touch with a member of our employment team.