[1]This is a claim of constructive unfair dismissal und unlawful deduction from wages. This Preliminary Hearing is essentially concerned with the effect of early conciliation on time limits and specifically the interpretation of section 207B of the Employment Rights Act 1996 (“the ERA”). Depending on the interpretation, the claim is either in time or it is late.[2]At the start of the hearing, I provided counsel with two decisions of Employment Tribunals in England on the point and the hearing adjourned to give them time to consider them. The cases are Chandler v Thanet District Council ET 2301782/14 held at Ashford on 20 January 2015 and Myers and Wathey v Nottingham C.C ET 2601136/15 and 2601137/15 held on 11 January 2016.[3]It was also agreed that the Tribunal would consider first whether the claim had been presented outside the statutory time limit and only if that was the case, to hear evidence from Mr Argue, solicitor for the claimant at the relevant time, as his evidence related only to the issue of reasonable practicability. I delivered judgment with oral reasons on the first issue and reserved my decision on the issue of reasonable practicability. This judgment contains the reasons for both matters.[4]The hearing focussed on the complaint of unfair dismissal. However the reasons apply equally to the complaint of unlawful deduction from wages.
Relevant law
[5]Section 111(2) of the ERA provides that a Tribunal may not consider a complaint of unfair dismissal unless it is presented(a) before the end of the period of three months beginning with the effective date of termination or(b) within such further period as the Tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period of three months. Section 23 of the ERA includes a provision to the same effect for a claim of unlawful deduction from wages although the three-month period in that case begins on the date of payment of the wages form which the deduction was made.[6]Subject to some exceptions, before a claim can be presented to the Employment Tribunal, the claimant must comply with the requirement for early conciliation as set out in Section 18A of the Employment Tribunals Act 1996 and in the Employment Tribunals (Early conciliation: Exemptions and Rules of Procedure) Regulations 2014. It is not in dispute that the claimant was required to comply with the requirement for early conciliation. That means that the claimant had to present an early conciliation from to ACAS and obtain an Early conciliation certificate before she could present a complaint to the Employment Tribunal. It is not in dispute that she complied with this requirement.[7]Both Section 111 and Section 23 of the ERA provide that Section 207B applies to them.[8]Section 207B provides for the extension of time limits where early conciliation applies. Specifically it provides in this section:- “(2) -(a) Day A is the day on which the complainant or applicant concerned complies with the requirement in subsection (1) of Section 18A of the Employment Tribunals Act 1996 (requirement to contact ACAS before instituting proceedings) in relation to the matter in respect of which the proceedings are brought, and(b) Day B is the day on which the complainant or applicant concerned receives, or if earlier is treated as having receiving (by virtue of regulations made under subsection (11) of that section) the certificate issued under subsection(4) of that section. (3) In working out when a time limit set by a relevant provision expires, the period beginning with the day after Day A and ending with Day B is not to be counted. (4) If a time limit set by a relevant provision would, if not extended by this subsection, expires during the period beginning with Day A and ending one month after Day B, the time limit expires instead at the end of that period (5) where an Employment Tribunal has power under this Act to extend a time limit set by a relevant provision, the power is exercisable in relation to the time limit as extended by this section.” The first issue – was the claim in time?[9]The relevant facts are not in dispute. The significant dates are:- ACAS received the early conciliation form (Day A) 14 July 2016 The effective date of termination 11 August 2016 Early conciliation certificate received (Day B) 14 August 2016 ET1 presented 18 November 2016[10]The essential question before me was how Section 207B is to be interpreted when early conciliation starts before the primary time limit starts to run and when Day A is therefore before the effective date of termination.[11]Mr Tinnion urges me to adopt the reasoning of the two ET decisions in England and Wales and find that the time spent in early conciliation is simply added to the primary time limit which is therefore extended by that number of days. The time limit in this case would then expire 30 days after 11 November 2016 and the claim, which was presented on 18 November 2016, would be in time.[12]Mr Bayne urges me to come to a different conclusion and find that the days before the effective date of termination (and before the three month time limit starts to run) are simply not taken into account at all. The time limit would therefore expire on 14 November 2016 and on that analysis the claim is late.[13]It is agreed that there is no appellate authority on the point. In most cases it makes no difference to the outcome.[14]With no disrespect to my judicial colleagues in England, I have come to a different conclusion to them. It agree with Mr Bayne that the wording of Section 207B is that of a “stop the clock” provision. It states that when working out when a time limit expires, the “period beginning with the day after day A and ending with day B is not to be counted.” That, in my view, means that those specific days that fall within the period are not counted. It does not mean that an equivalent number of days is added to the primary time limit. To put it simplistically, a clock cannot be “stopped” if it has not yet started.[15]Mr Tinnion suggests that this means the start date of the limitation period is delayed and this is not permitted. I don’t see it that way. The limitation period still starts on the effective date of termination,12 August 2016. However, in this case, as the claimant was still engaged in early conciliation, that day (12 August) is not counted as part of the limitation period.[16]Mr Tinnion suggests that this interpretation is not in accordance with the intention of parliament. This is also suggested by Employment Judge Kurrein in the Chandler case. With respect to both, I do not agree. The purpose of Section 207B was to ensure that claimants were not disadvantaged by engaging in early conciliation. A claimant cannot present a claim without complying with the requirement for early conciliation. A claimant in the normal course who is making a claim for unfair dismissal will engage in early conciliation after the effective date of termination. This would result in the claimant being unable to present a claim but still having time running against her. This is why Section 207B provides that days spent on EC “do not count”.[17]As Mr Tinnion says, most of the days in the present case that are covered by Section 207B would not have “counted” anyway towards the three month time limit. That is clearly correct but in my view, that is exactly why they don’t count in this case – there is no disadvantage to the claimant in respect of those days because of the requirement for early conciliation. Mr Tinnion points out that on my analysis, where early conciliation is started and completed before the effective date of termination, the claimant would get no extension of time at all. That is clearly correct but it is not clear to me why a claimant, in those admittedly unusual circumstances, needs an extension of time at all? The clock, in terms of the limitation period, has not yet started running when early conciliation is competed. I do not consider that the purpose of section 207B is to extend the time limit every time a claimant engages in early conciliation. Rather it is to prevent the claimant being disadvantaged by the three month period being reduced by engaging in EC.[18]Mr Tinnion submitted that the effect of this analysis would be to delay the start of the three month period which is impermissible because the statutory provision focuses on the expiry of the time limit and says nothing about delaying the start. In my view the correct analysis is not that the start date (the effective date of termination) is altered but that the first few days do not “count” towards the three month time period.[19]Whether you say Section 207B delays the start date or extends the expiry date is not critical in my view. The key thing is whether the “period” is an actual calendar period of particular days or whether it is an equivalent number of days. In my view it is the former.[20]Employment Judge Kurrein and Mr Tinnion place emphasis on the HMCTS Guidance. I accept that the HMCTS guidance does not cover this specific point. It is not particularly helpful as it refers to “stop the clock” but also refers to “adding days” to the normal time limit. I think it is fair to say that most people working out the effect of early conciliation on time limits do it on the basis that they simply “add” the early conciliation days to the normal end date. This is the approach accepted by the Employment Judges in Chandler and Myers. I do not consider that this is correct and while the HMCTS Guidance is issued to assist parties, it does not have statutory force and should not impact on how legislation is interpreted. It could however, be relevant to reasonable practicability (see below).[21]The most convincing argument against my conclusion is one of simplicity and certainty. I appreciate that if I am correct, then it becomes more difficult to work out when a claim is in time or not. However, as Mr Bayne says, that is already the position where a claim includes an allegation of discrimination which may predate the dismissal. When time starts to run in such cases is not always clear. The effective date of termination, on the other hand, is usually clear and the early conciliation certificate sets out when the relevant dates. It should be straightforward to work it out. I appreciate that until we get appellate authority the position will remain unclear and that is clearly undesirable. However, I have to interpret the statutory provisions as I think is correct.[22]I should also mention the reference by Employment Judge Britton to the case of Prison Service v Barua which dealt with the extension of time under the old Dispute Resolution Regulations. In that case Mr Justice Underhill, suggested it would be unsatisfactory if an employee who lodged a grievance the day after time started to run should get 6 months to bring a claim whereas one who lodged it earlier had only 3 months and a day. That would penalise employees who acted promptly. Judge Britton considered that to accept the respondent’s interpretation of Section 207B would deter employees from seeking ACAS conciliation sooner rather than later and that this was incompatible with the intention of the conciliation provisions.[23]With respect, I do not consider a true analogy can be drawn between the two situations. The issue in Barua, as I understand it, was whether the claimant was entitled to the three month extension that was available under the Regulations then in place, by virtue of having lodged a grievance before the start of the 3 month limitation period. The statutory provision provided that an extension of time was granted where the grievance was lodged in the normal time limit. It was argued that this was only available where the grievance was lodged during the three month period (between the start and end of the three month time limit) and that a grievance lodged earlier did not trigger the extension of time. Mr Justice Underhill was commenting that it would be unfortunate not to allow the extra period (which was to intended to encourage the resolution of disputes) just because a grievance was presented at an early stage. The key thing was when the grievance process was started.[24]What is being addressed in Section 207B is quite different and much more specific. The extra time to lodge the claim is given specifically to compensate for days spent complying with the requirement for early conciliation during which time the claimant is prevented from instituting proceedings. The claimant starts the process with the early conciliation form but it is issuing of the early conciliation certificate that starts the clock again. So it is not just when the claimant starts early conciliation that determines how many extra days there are but critically when the process concludes. The provision being considered Barua had a “cliff edge” effect. Either the claimant got an extra 3 months or he didn’t. That is not the case with Section 207B. The number of days will depend on how many days of the three-month period have been taken out for early conciliation.[25]I appreciate it is extremely unsatisfactory to have different decisions from different Tribunals and I have a great deal of sympathy for those wrestling with the provisions. One judge, Judge Kurrain, has said the issue is finely balanced and finds for the claimant, Judge Britton consider it is not ambiguous and finds for the claimant and I am now finding for the respondent. However, employment tribunal decisions are not binding on other Tribunals.[26]I consider, therefore, that in this case the days between 15 July 2016 (being the day after day A) and 14 August 2016 are not to be counted when calculating the time limit. The three month period would otherwise start on 12 August 2016 and conclude on 11 November. As the 12, 13, and 14 August are not counted, the three month time limit expires on 14 November 2016.[27]The claim has therefore been presented late. I will now consider whether it was reasonably practicable to present the case in time. Second issue – was it reasonably practicable to bring the claim in time?[28]Having heard from Mr Argue, I consider the following facts to be established in addition to the agreed dates set out above:-(i) The claimant contacted ACAS herself to commence the early conciliation process.(ii) She instructed Thompsons solicitors about the effective date of termination(iii) The procedure at Thompsons was that details of the case were input to a computer case management system by a member of administrative staff. Details would include the date of dismissal and would generate alerts that the time limit was approaching for presentation of the ET1. The alerts would be issued to the acting solicitor 28, 21 and 14 days before the final date for presentation. At 14 days, the acting solicitor would have to contact the partner in charge and explain why the claim had not been presented. The computer system did not take account of early conciliation.(iv) In the claimant’s case, the usual alerts were generated. Mr Argue was the acting solicitor. When he got the 14 day alert, Mr Argue advised the partner that because of early conciliation the relevant date was in fact 10 December 2016, some 6 weeks away.(v) Mr Argue was going on holiday on 18 November 2016 and therefore submitted the claim that day as he was “clearing his desk” therefore submitted the claim on 18 November 2016. However at that stage he believed he had until the 10 December to do so.(vi) Thompsons solicitors had provided training to its solicitors, including Mr Argue on the effect of early conciliation. Mr Argue understood that he had to add the number of days spent on early conciliation to the three month time limit. He was not aware that there might be a different calculation if the early conciliation period started before the effective date of termination. Respondent’s submissions[29]The matter is a jurisdictional one. The onus is on the claimant to prove that it was not reasonably practicable for the claim to be presented in time and cannot realistically be discharged, given that she has been represented by solicitors (reference to Dedman v British Building and Engineering Appliance Ltd [1974] 1 All ER 205).[30]Mr Bayne invites me to find that the claimant’s solicitors were negligent. He submits that the wording is clear and a reasonably competent solicitor should have come to the same conclusion that I have. At the least, they should have been aware that there was a potential problem and taken steps to ensure that claims were submitted at the earlier date. It is not necessary for the Tribunal to find that Mr Argue was negligent. The question is whether Thompsons solicitors were negligent. That is who the claimant instructed. They are a large firm with a complicated system to ensure that claims are presented in time. There is a heavy burden on solicitors to make sure case are presented in time.[31]He submitted that if the solicitor is negligent, then it cannot be “not reasonably practicable” for the claim to be submitted in time. However even if the solicitor is not negligent, he submits there is a question of fact for the employment tribunal as to whether the actions of the solicitor in giving wrong advice or missing a time limit were reasonable.[32]Mr Bayne submitted that I should have regard for the case of Northampton County Council v Entwistle [2010] IRLR 741 and not the other cases relied on by the claimant which were not in point. While it is theoretically possible for a solicitor to miss the time limit and not be negligent, that would involve the sort of situation envisaged in Entwistle where an employer misleads the solicitor. If the solicitor knows, or ought to know, when the expiry date is, that is the end of the matter.[33]Mr Bayne further submitted that even if Thompsons thought the later date was correct, if they recognise there is an argument then they should present the claim before the earlier date. Not to do so would be negligent. The question is whether Thompsons ought to have recognised the problem? Mr Bayne submits that they should. Section 207B is complicated and they should have recognised it could be interpreted in more than one way. Claimant’s submissions[34]Mr Timmion submits either there is negligence (in which case he agrees that the claimant cannot benefit from the extension of time) or there isn’t. If there isn’t negligence, he submits that she must benefit from the extension.[35]He submits that the circumstances of the present case cannot amount to negligence. The solicitors were not aware there was an issue. It is not established that “no competent solicitor” would have acted in the same way. Two Employment Judges have come to the same view as Thompsons solicitors did on the meaning of Section 207B.[36]Mr Tinnion submits that the respondent has not provided the Tribunal with expert evidence on what a reasonable solicitor would have known.[37]Mr Tinnion invites me to consider Mr Justice Underhill’s comments in Entwistle when he says at para 14: “It is perfectly possible to conceive of circumstances where the adviser’s failure to give the correct advice is reasonable…The paradigm case though not the only example of such circumstances would be where both the claimant and the adviser had been misled by the employer as to some material factual matter”. He also asked the Tribunal to note that in Entwistle it was accepted that there had been negligence. That is not the case here.[38]Mr Tinnion also referred me to Ebay (UK) Ltd v Buzzeo UKEAT/0159/13 where HHJ Richardson relied on that passage to derive the following proposition of law “An adviser’s failure to give the correct advice may itself be reasonable and if so, will not in itself be a bar to a finding that it was not reasonably practicable to bring the claim in time”. He also referred to Balfour Beatty Engineering Services v Allen 2011 UKEAT/0236/11 where HHJ Richardson again said:- “It follows in my judgment from what Underhill P collected from the authorities with which analysis I agree that it may not be such an overarching principle that the Claimant must accept as his responsibility an error on the part of skilled advisors. If there is no negligence, then it will not be reasonably practicable for the employee to put his claim in time.”[39]In the present case, Mr Tinnion submits that the claimant entrusted her case to Mr Argue a skilled lawyer. It was reasonable for her to do so. Mr Argue had had training and did everything that he was meant to do. He would have remembered if the point had been covered in training. It is important that the Tribunal is not making a judgment about today but the reasonableness of conduct in 2016.[40]Whatever the correct construction is of Section 207B it is not a clear, straightforward matter. The claimant’s situation was unusual in that her early conciliation notification took place before her effective date of termination.[41]In November 2016 there was, and still is not, any appellate authority on the point. The issue is a novel point of law. In the absence of any binding or persuasive authority it was not negligent of Mr Argue to consider and act upon the basis that the deadline for presenting the claimant’s claim was within 30 days of 11 November 2016. Even if the Tribunal disagrees, there is an arguable case. Mr Bayne says that if the solicitor gets the law wrong then it must be negligent. That cannot be right.[42]The HMCTS Guidance suggests you just add the days to the expiry date.[43]If the Tribunal is satisfied that it was not reasonably practicable to present the claim in time, it was only presented 4 days late which must be a reasonable period. Respondent in reply[44]Mr Bayne responded to the issue of expert evidence saying that this had only been raised the night before. If the Tribunal was to consider it needed expert evidence, then the correct course would be to adjourn to allow that to be provided. However, Mr Bayne’s position was that it was not necessary to find negligence (although that would dispose of the matter). It then became a question of fact whether the solicitor was “reasonably ignorant” of the time limit.[45]Mr Tinnion repeated his submission that if there was negligence, then the claimant loses but if there is not, then, relying on Balfour Beatty, the claimant must win.[46]The Dedman principle, as confirmed by the Court of Appeal in Marks and Spencer plc v Williams Ryan [2005] ICR 1293, is that where a claimant has retained a solicitor to act for her and fails to meet the time limit because of the solicitor’s negligence, this will defeat any attempt to argue that it was not reasonably practicable to present the claim in time. Parties in this case are agreed that if I find that the solicitor in this case was negligent, then the claimant will fail.[47]In Entwhistle, Mr Justice Underhill said that, subject to that principle, “reasonable practicability” is a question of fact for the Tribunal and that, in principle, there could be cases where a solicitor is involved and a time limit is missed and the extension granted. The question is whether the solicitor’s failure was itself reasonable.[48]Mr Tinnion invites me to take from the case of Balfour Beatty a proposition that if the solicitor is not negligent, then it will not be reasonably practicable for the claimant to put in his claim in time. I agree that that is what was said but it was an obiter remark and is said to follow from what Mr Justice Underhill had said in Entwhistle. I am not convinced that the matter is as bilateral as that. I agree with Mr Bayne that the correct approach is firstly to consider whether the claimant’s solicitor was negligent. If that is not established, I must then consider whether the solicitor’s misunderstanding (as I have found it to be) about the effect of Section 207B was reasonable. If so, it will not be reasonably practicable for the claimant to have presented her claim in time. The consideration in each question is very similar but could, at least in theory, provide different results.[49]I agree also with Mr Bayne that the question is not whether the solicitors should have agreed with my interpretation of Section 207B but whether they should have been aware there was a risk and guarded against it.[50]Turning first to the consider whether Mr Argue and/or Thompsons solicitors were negligent, the question is whether he or they exercised the degree of skill and care which is ordinarily exercised by reasonably competent members of the profession. I do not have expert evidence but I consider that my judicial knowledge in this area is relevant. This is the first time that the issue has been raised in Scotland to my knowledge. I was unaware of the issue. I was unaware of the two decisions in Employment Tribunals in England and Wales, before preparing for this hearing, and clearly so were the two experienced counsel appearing in this case. I would not categorise the solicitor’s lack of awareness of the issue as negligent. While in an, ideal world, solicitors would be aware of any potential ambiguity in legislation and guard against it, the rate of change in employment law is fast and the effect of early conciliation is still being tested in the appellate courts. There is no appellate decision on this point. I do not consider the solicitors in this case to be negligent.[51]For very similar reasons, I consider that it was reasonable for the solicitors to interpret Section 207B in the way that they did. Even though I disagree, the point is not an easy one. I may be wrong and two other Employment Judges agreed with their interpretation. Had they researched the point, the most they would have found would be two first instance decisions that supported their interpretation.[52]The Guidance provided by HMCTS does not cover the point and it would be reasonable for someone looking to that for directions to understand that all that was required was to “add the days”.[53]In these circumstances, I am satisfied that the solicitor’s mistake was reasonable and that in these circumstances, it was not reasonably practicable for the claim to be presented in time.[54]I then have to consider whether it was presented within a reasonable period. The claim was only 4 days late and I do not understand the respondent to be arguing that this was not a further reasonable period. In any event, I consider that this short delay was a reasonable period and so the claim can proceed.[55]I will now give instructions for a case management hearing to be listed as directed by Judge Gall at the earlier preliminary hearing.[56]I am grateful to counsel for their thoughtful submissions. EMPLOYMENT TRIBUNALS (SCOTLAND) Case No: S/4105592/16 Held i n Glasgow on 22 September 2017 (Preliminary Hearing) Employment Judge: Ian McPherson Claimant Written Representations - per Ms Helen Donnelly - Solicitor Ms Amanda Fergusson Respondents Written Representations - per Ms Rachel Blythe- Solicitor Combat Stress
consideration.
[57]Nothing is said tn the original ET1 about an incident on 29 June 2015, nor about an incident report of 1 July 2015, so for that reason, I take the view that the claim, as presented, contains no complaint of that nature. In my view, such a claim is not included in the ET1, either expressly, or by necessary implication, so that I find that amendment is required to enable the claimant to advance such a head of claim now against the respondents. Relevant Law: Amendments[58]In terms of Rule 29 of the Employment Tribunals Rules of Procedure 2013, the Tribunal may at any stage in the proceedings, on its own initiative or on the application of a party, make a Case Management Order. This includes an Order that a party is allowed to amend its particulars of claim or response. The usual starting point for consideration of any application to amend is the guidance given by the Employment Appeal Tribunal in the seminal case of Selkent.[59]In many instances where there is an application to amend a claim form, it is done because a particular head of claim has not been fully explored or clarified in the initial claim. Harvey on Industrial Relations and Employment Law (“Harvey”) distinguishes between three categories of amendments:-(1) amendments which are merely designed to alter the basis of an existing claim, but without purporting to raise a new distinct head of complaint;(2) amendments which add or substitute a new cause of action but one which is linked to, arises out of the same facts as, the original claim; and(3) amendments which add or substitute a wholly new claim or cause of action which is not connected to the original claim at all.[60]In Transport and General Workers Union- v- Safeway Stores Ltd UKEAT/009/07, Mr Justice Underhill, President of the Employment Appeal Tribunal, noted that although Rule 10(2) (q) of the then Employment Tribunal Rules of Procedure 2004 gave Tribunals a general discretion to allow the amendment of a claim form, it might be thought to be wrong in principle for that discretion to be used so as to allow a claimant to, in effect, get round any statutory limitation period. He went on to say that the position on the authorities however is that an Employment Tribunal has discretion in any case to allow an amendment which introduces a new claim out of time.[61]In a detailed review of the case law, Mr Justice Underhill considered the appropriate conditions for allowing an amendment. In particular, he referred to the guidance of Mr Justice Mummery (as he then was) in Selkent Bus Company Ltd -v- Moore [1996] ICR 836 (EAT), where he set out some guidance. That guidance included the following points:- “(2) There is no express obligation in the Industrial Tribunal Rules of Procedure requiring a Tribunal (or the Chairman of a Tribunal) to seek or consider written or oral representations from each side before deciding whether to grant or refuse an application for leave to amend. It is, however, common ground for the discretion to grant leave is a Judicial discretion to be exercised in a judicial manner, i.e. in a manner which satisfies the requirements of relevance, reason, justice and fairness and end in all judicial discretions. (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. i o (5) What are the relevant circumstances? It is impossible and undesirable to attempt to list them exhaustively, but the following are certainly relevant: 15(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 addition of factual details to existing allegations and the addition or substitution of other labels of facts already 20 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 a minor matter 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 the complaint is out of time and, if so, whether 30 the time limit should be extended under the applicable statutory provisions, e.g. in the case of unfair dismissal, Section 67 of the 1978 Act.(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 in discovery. Whenever taking any factors into account, 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. "[62]In that Safeway judgment, Mr Justice Underhill also referred to the judgment of the Court of Appeal in Ali v Office of National Statistics [2005] IRLR 201 where Lord Justice Waller referred to Mr Justice Mummery’s guidance in Selkent, pointing out that in some cases, the delay in bringing the amendment where the facts had been known for many months made it unjust to do so. He continued : “There will further be circumstances in which, although a new claim is technically being brought, it is so closely related to the claim already the subject of the originating application, that justice requires the amendment to be allowed, even though it is technically out of time."[63]Further, Mr Justice Underhill also considered the relevant extract from Harvey in relation to the threefold categorisation of proposed amendments. He referred to the fact that the discussion in Harvey points out that there is no difficulty about time-limits as regards categories one and two, since one does not involve any new cause of action and two, while it may formally involve a new claim, is in effect no more than “putting a new label on facts already pleaded". He went on to clarify that the decision in Selkent is inconsistent with the proposition that in all cases which cannot be described as “relabelling" an out of time amendment must automatically be refused; even in such cases he stated that the Tribunal retains a discretion.[64]A further authority that is of assistance to a Tribunal considering an amendment application is Ahuja v Inqhams [2002] EWCA Civ 192. At paragraph 43 of the Court of Appeal’s judgment in Ahuja, Lord Justice Mummery stated that: "the tribunal has a very wide and flexible jurisdiction to do justice in the case, as appears from [old] Rule 11 of their regulations and they should not be discouraged in appropriate cases from allowing applicants to amend their applications, if the evidence comes out somewhat differently than was originally pleaded. If there is no injustice to the respondent in allowing such an amendment, then it would be appropriate for the Employment Tribunal to allow it rather than allow what might otherwise be a good claim to be defeated by the requirements that exist - for good reasons - for people to make clear what it is they are complaining about, so that the respondents know how to respond to it with both evidence and argument. "[65]Further, also of assistance to a Tribunal considering any amendment there is the Court of Appeal’s Judgment in Abercrombie & Others -v- Aga Ranqemaster Ltd [2013] EWCA Civ 1148; [2013] IRLR 953, and in particular, the Judgment of Lord Justice Underhill, at paragraphs 42 to 57. Finally, there is the Judgment of the Employment Appeal Tribunal in Chandhok -v- Tirkey [2015] IRLR 195, and in particular at paragraphs 16 to 18 of Mr Justice Langstaff’s Judgment in Chandhok, where the learned EAT President referred to the importance of the ET1 claim form setting out the essential case for a claimant. I have already made reference to Chandhok above, at paragraphs 47 and 48 of these Reasons, and so I simply refer back to those excerpts from the EAT President’s judgment for the sake of brevity.[66]As is evident from the observations of Mr Justice Mummery, as he then was, in Selkent , in the case of the exercise of discretion for applications to amend, a Tribunal should take into account all the circumstances and balance the injustice and hardship of allowing the amendment against the injustice and hardship of refusing it. Factors to be taken into consideration include the nature of the amendment, so that for example an amendment which changed the basis of an existing claim will be more difficult to justify than an amendment which essentially places a new label on already pleaded facts; the question whether the claim is out of time and if so, whether time should be extended under the applicable statutory provision; and the extent of any delay and the reasons for it.[67]Further, I have also had regard Lady Smith’s unreported EAT judgment in the Scottish appeal of Ladbrokes Racing Ltd v Traynor [2007] UKEATS/0067/07. Despite it being unreported, it is detailed in chapter 8 of the IDS Handbook on Employment Tribunal Practice and Procedure, at paragraph 8.50. At paragraph 20 of her judgment, Lady Smith, as well as noting the Selkent principles, stated as follows: “When considering an application for leave to amend a claim, an Employment Tribunal requires to balance the injustice and hardship of allowing the amendment against the injustice and hardship of refusing. That involves it considering at least the nature and terms of the amendment proposed, the applicability of any time limits and the timing and the manner of the application. The latter will involve it considering the reason why the application is made at the stage that it is made and why it was not made earlier. It also requires to consider whether, if the amendment is allowed, delay will ensue and whether there are likely to be additional costs whether because of the delay or because of the extent to which the hearing will be lengthened if the new issue is allowed to be raised, particularly if they are unlikely to be recovered by the party who incurs them. Delay may, of course, in an individual case have put a respondent in a position where evidence relevant to the new issue is no longer available oris of lesser quality than it would have been earlier."[68]As Lord Justice Underhill pointed out in Abercrombie at paragraph 47, these are neither intended to be exhaustive nor should they be approached in a tick-box fashion. There is nothing in the Rules or the case-law to say that an amendment to substitute a new cause of action is impermissible. Further, at paragraphs 48 and 49 of the Abercrombie judgment, Lord Justice Underhill went to say as follows:-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.)49. It is hard to conceive a purer example of "mere re-labelling" than the present case. Not only the facts but the legal basis of the claim are identical as between the original pleading and the amendment: the only difference is, as I have already said, the use of the section 34 gateway rather than that under section 23. In my view this factor should have weighed very heavily in favour of permission to amend being granted. As the present case only too clearly illustrates, some areas of employment law can, however regrettably, involve real complication, both procedural and substantial; and even the most wary can on occasion stumble into a legal bear-trap. Where an amendment would enable a party to get out of the trap and enable the real issues between the parties to be determined, I would expect permission only to be refused for weighty reasons - most obviously that the amendment would for some particular reason cause unfair prejudice to the other party. There is no question of that in the present case/' Discussion and Deliberation[69]Counsel and solicitor for the respondents have both argued strongly against allowing the amendment sought by Ms Donnelly, if amendment is required, while Ms Donnelly has herself argued with equal strength of conviction that the proposed amendment, if required, should be allowed, to properly address all relevant matters, in a way that the claimant has been further and better specifying her case in greater detail, for the assistance of the S/4 10 5592/1 6 Page 45 respondents, and of the full Tribunal which is listed to hear it on its merits at the forthcoming Final Hearing..[70]In considering, in the present case, whether it is appropriate to allow the amendment, I have considered the Selkent principles, as well as the more recent case law authorities referred to earlier in these Reasons, and I have to take into account not just the interests of the claimant but also those of the respondents. So too have I considered hardship and injustice to both parties in allowing or refusing the amendment, as also the wider interests of justice in terms of the Tribunal’s overriding objective to deal with the case fairly and justly.[71]Having most carefully considered parties' written submissions, and also my own obligations, under Rule 2 of the Employment Tribunals Rules of Procedure 2013, to ensure that this case is dealt with fairly and justly, I consider that it is in the interests of justice and in accordance with the overriding objective to allow this amendment of the original ET1 claim form.[72]An amendment can be proposed at any time in the course of a claim before the Tribunal, and the applicability of time-limits only relates to the situation where a new complaint or cause of action is proposed to be added by way of amendment.[73]The amendment proposed here by Ms Donnelly is more category 2, seeking to add a further alleged protected disclosure to an existing claim, linked to and arising out of the same facts as the original claim, rather than a wholly new claim.[74]I considered the timing and manner of the application to amend. It is, of course, correct to say that a significant amount of time has elapsed between the claim having been lodged and the application to amend being made. .Ms Donnelly, in her written submissions, has provided me with a cogent explanation for why she feels it necessary for the claim to be amended, and in so doing she has addressed the delay in lodging this application to amend.[75]However, as is made clear in Selkent, an application to amend should not be refused solely because there has been a delay in making it, and there are no time limits for considering an application to amend. Of paramount consideration is a relative injustice or hardship involved in refusing or granting the application.[76]While there has been delay between the issue of the proceedings and the lodging of this application to amend, a significant factor in considering the timing of the application is that this litigation is not yet at a stage where a Final Hearing has actually started. Further, no evidence has yet been led by either party. On that basis, I consider that it is unlikely that the respondents will be seriously prejudiced because of the timing of this application.[77]While the respondents assert, as per paragraph 30 of Mr Sweeney’s written submission of 14 September 2017, some prejudice will be caused to the respondents, on account of the passage of time and fading of memories, and the availability of witnesses who may well have forgotten things from 2015, I do not consider that that feature of itself is sufficient for me to find that a Fair Hearing cannot be held.[78]The fact that there has been a re-organisation of the Respondents’ charity, and, as Ms Blythe says, in her email of 31 July 2017, “a number of witnesses are no longer available", does not mean that such witnesses cannot be called to give evidence, if necessary under compulsion of a Witness Order granted by the Tribunal, so long as the respondents have their contact address for service, and they can satisfy the Tribunal’s need for any application for a Witness Order to show relevance and necessity of a particular person being called to give evidence at the Final Hearing.[79]The full Tribunal, hearing the case on its merits, will need to come to its own views on the credibility and reliability of witnesses for the claimant and for the respondents, based on the evidence they give at that Final Hearing, and how it is tried and tested in the Final hearing, and that is a key aspect of its fact finding role, as an industrial jury, at the Final Hearing.[80]I recognise, of course, there has been some prejudice to the respondents to date in that they have had to deal with this on-going litigation, where the claim was accepted and served on them as long ago as 23 November 2016, but part of the delay in getting this case to the now listed Final Hearing has resulted from the time-bar point taken by the respondents, and their need to have the claimant provide further and better specification of the factual and legal basis of the claim, and in that regard, through correspondence, and 3 Case Management Preliminary Hearings, the respondents have taken pro active steps to seek to clarify matters via the Tribunal. All of that case management procedure has taken time, and the passage of time is as likely to impact the claimant and her witnesses as it is to impact the witnesses for the respondents.[81]Over recent months, since June / July 2017, to date, as the need for amendment has been discussed, and progressed to parties' submissions before me at this Preliminary Hearing, these Tribunal proceedings have progressed as if both parties, but for this one further alleged protected disclosure, are satisfied that they otherwise know the other party’s case, as they had pled it, and without the need to call for any more Further and Better Particulars, to supplement those already intimated, and, with the exception of this one matter of amendment, there are no other preliminary issues requiring prior determination by the Tribunal, in advance of the start of the listed Final Hearing.[82]I recognise that it has taken a considerable amount of time and procedure to reach the stage that the parties are now at. If anything however allowance of the amendment makes the claimant’s position about this further alleged protected disclosure clearer, and this, it would be reasonable to anticipate, should serve to prevent any further unnecessary procedure prior to the start of the Final Hearing next month.. Further, any prejudice to the respondents is, in my view, offset, in that if this amendment is allowed, the respondents are not being asked to face a wholly new claim of which they have no knowledge.[83]In the event the amendment is allowed, and I have so ordered, the respondents retain the right to defend the claim as amended in its entirety. I have considered all the relevant factors, and balanced the injustice and hardship to the claimant in refusing the application, against the injustice and hardship to the respondents in allowing the application[84]Given that the respondents have been on notice of the proposed amended claim from 21 June 2017, when Ms Donnelly intimated Further and Better Particulars, recalling and detailing the further alleged protected disclosure from June I July 2015, I do not believe that the respondents are prejudiced in any meaningful way by including the amended part of the claim or that there is any question of hardship to the respondents. The respondents are simply going to have to address another aspect of a multi-facetted claim which has already been indicated to them, but that is unfortunately a fact of life in industrial relations claims.[85]In my view, there would undoubtedly be a greater hardship and prejudice to the claimant if she was unable to pursue the full extent of her claim as amended, and I consider that the potential injustice to her in refusing her amendment, as the respondents invited me to do, is far greater than a potential injustice to the employer if this matter is allowed to continue with the claim as amended.[86]The claim, as now amended, is very closely related to the claim originally lodged, and, in my view, the amendment allows the issues in dispute to be better focussed, and looking at the listed Final Hearing before the Tribunal, next month, parties will be on an equal footing in that all relevant information has now been disclosed so as to allow preparation for a Final Hearing to progress on the basis that all the claimant's cards are now on the table.[87]The amendment which I have allowed will, in my view, have little impact on the cogency of the evidence to be heard at a Final Hearing as a result of the delay in applying to make this amendment, and the listed Final Hearing can proceed as listed, and it is likely to proceed with the same number of witnesses as originally envisaged, although both parties’ representativeswill need to carefully reflect on their time estimates for evidence, to ensure the case can be concluded in the allocated 14 day sitting.[88]Further, in my view, the amendment allowed by the Tribunal does not seek to change the basic argument that the claimant submits that she was the subject of an unfair constructive dismissal by the respondents, and / or an automatically unfair dismissal by reason of making protected disclosures, but it does helpfully provide clarity around the alleged protected disclosures being relied upon which the claimant is offering to prove.[89]Finally, this amendment as allowed does not affect the ability of the Employment Tribunal to conduct a fair hearing of the case, on the 14 days already assigned by the Tribunal for a Final Hearing. In all of these circumstances, I have decided to allow the amendment sought by the claimant, and I have so ordered at paragraph (2) of my Judgment. Further Procedure[90]Further, having allowed this amendment for the claimant, I have decided that it is likewise in the interests of justice to allow the respondents an opportunity to lodge Further and Better Particulars with the Tribunal on their own behalf, if so advised.[91]Any such Further and Better Particulars should seek to answer the claimant's amended paragraph 23 of the paper apart to the ET1 claim form, so as to fully specify the respondents’ grounds of resistance to that amended part of the claim, and so augment the grounds of resistance originally set forth in their ET3 response form accepted on 22 December 2016. I consider that a period of two weeks from date of issue of this Judgment is a reasonable period for lodging any such Further and Better Particulars for the respondents. I have so ordered at paragraph (3) of my Judgment.[92]Finally, at paragraph (4) of my Judgment, I have ordered that the claim and response, as so amended, shall proceed to Final Hearing before a full Employment Tribunal at Glasgow on the dates previously assigned, commencing Monday 20 November 2017, for 14 days, for full disposal, including remedy if appropriate, all as previously ordered by me in my written Note and Orders of the Tribunal dated 2 June 2017, following upon the further Case Management Preliminary Hearing held before me on 1 June 2017, and the Notice of Final Hearing issued to both parties’ representatives under cover of the Tribunal's letter of 6 June 201 7.[93]Should any other matters arise between now and the start of the listed Final Hearing, then written case management application by either party’s representative should be intimated, in the normal way to the Tribunal, by email, with copy to the other party's representative, sent at the same time, and evidencing compliance with Rule 92, for comment / objection within seven days.[94]Dependent upon subject matter, and any objection / comment by the other party's representative, any such case management application may be dealt with on paper by me as the allocated Employment Judge, or a Case Management Preliminary Hearing fixed, either in person, or by telephone conference call, as might be most appropriate.