Mr I Bradwell and Mr A Miles v Royal Mail Group Ltd: 4107258/2020 and 4107281/2020
JUDGMENT
The Judgment of the Tribunal is that the claimants’ application to amend is granted.REASONS
[1]By email on 25 January 2022 at 23:45, the claimants applied to amend the claim form to include details of so called “inconsistent treatment” by the ETZ4(WR) respondent. The respondent’s solicitor responded by email on 26 January 2022 at 10:30 in which she intimated that the application to amend was opposed. The parties agreed that I should proceed to consider and determine the issue “on the papers”: on the basis of the parties’ submissions in their emails. Discussion and Decision[2]In Cocking v Sandhurst (Stationers) Limited & another [1974] ICR 650, Sir John Donaldson, delivering the Judgment of the NIRC, laid down a general procedure for Tribunals to follow when deciding whether to allow amendments. These guidelines have been approved in several subsequent cases and were re-stated in Selkent Bus Co Limited v Moore [1996] ICR 836. In that case, the EAT emphasised that the Tribunal, in determining whether to grant an application to amend, must carry out a careful balancing exercise of the relevant factors, having regard to the interests of justice and to the relative hardship that will be caused to parties by granting or refusing the amendment. Useful guidance on this issue was also given by the EAT in Argyll & Clyde Health Board v Foulds & others UKEATS/009/06/RN and Transport & General Workers Union v Safeway Stores Limited UKEAT/0092/07/LA.[3]In both these cases, the EAT referred, with approval, to the terms of paragraph [311.03], in section P1 of Harvey on Industrial Relations in Employment Law:- “(b) Altering Existing Claims and Making New Claims [311.03] 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 which is linked to, or arises out of the same facts, as the original claim; and(iii) amendments which add or substitute a wholly or new cause of action which is not connected to the original at all”[4]Valuable guidance was also provided by Mummery LJ at pages 843 and 844 in Selkent:- “………………………………………………………………………………. (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 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 have 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 substituting a further label for facts already pleaded to, to, on the other hand, the making of entirely new factual allegations which change the basis of the existing claims. 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 the 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 the time limit could be extended under the applicable statutory provisions e.g. in the case of unfair dismissal s.67 of the Employment Protection (Consolidation) Act 1978 (now section 111(2) of the Employment Rights Act 1996).(c) The timing and the manner of the application An application should not be refused wholly because there has been a delay in making it. There are no time limits laid down in the Regulations of 1993 for the making of amendments (now the 2013 Regulations). 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 and information appearing from documents disclosed in discovery. Whenever taking any facts into account, the paramount considerations are the relative injustice and hardship involved in refusing or granting amendments. Questions of delay, as a result of adjournment and additional costs particularly if they are unlikely to be recovered by the successful party are relevant in reaching a decision”[5]When considering the issue, I was also mindful of guidance of the EAT in the recent case, Vaughan v Modality Partnership UKEAT/0147/20/BA. In that case, the principles surrounding an amendment application were summarised by HHJ Tayler. Present Case The nature of the amendment”[6]The amendment did not seek to introduce a new complaint, but rather provided further details in support of the unfair dismissal complaint, albeit that it sought to advance, in more detail, an allegation of inconsistency of treatment, which may give rise to a finding of unfair dismissal. The amendment alleges that two other specified employees of the respondent were guilty of the same misconduct as the claimants, but, unlike the claimants, they were not dismissed. They were only suspended for two weeks.[7]The claimants had made reference to such a complaint in the claim form, but only in the briefest of terms: “Knowledge of similar gross misconduct a lesser penalty within my office”. I was of the view, therefore, that the application to amend amounted to the addition of factual details to existing allegations, albeit that these allegations were brief.[8]Although the respondent’s solicitor maintained that these other cases were “not truly parallel”, it appeared to me from the “Fact Finding Interview Notes”, in respect of the two other employees, which were attached to the claimant’s email application to amend, that their cases, at least on the face of it, were comparable and that it would be in the interests of justice to hear evidence about their cases.[9]I was also not persuaded, as the respondent’s solicitor alleged, that the fact that other alleged misconduct occurred some months after the claimant’s dismissals was wholly irrelevant. In the Court of Appeal case Post Office v Fennell [1981] IRLR 221 Lord Justice Brandon cited the words ‘Having regard to equity and the substantial merits of the case” (contained in the precursor to s.98(4) of the Employment Rights Act 1996) and said this:- “It seems to me that the expression “equity” as there used comprehends the concept that employees who misbehave in much the same way should have meted out to them much the same punishment, and it seems to me that the Tribunal is entitled to say that, where that is not done, and one man is penalised much more heavily than others who have committed similar offences in the past, the employer has not acted reasonably in treating whatever the offence is as sufficient reason for dismissal”.[10]Further, Brandon LJ also said that it is for the Tribunal to decide whether, on the facts, there was sufficient evidence of inconsistent treatment. It seemed to me that while the other two cases were not “in the past”, when considering “equity”, if the cases were truly comparable an explanation was required from the respondent as to why the claimants were treated more severely. “The applicability of time-limits”[11]As I decided that the application to amend did not comprise a new complaint or cause of action and that the matter had been referred to in the claim form, this was not a material factor as the claim form was timeous. However, the delay in providing the required specification was a factor and this is dealt with below. The timing and manner of the application/prejudice and hardship[12]There was a considerable delay in providing the necessary specification of the “inconsistency of treatment” allegation. However, I was mindful that the claimants are both unrepresented and have no experience of Employment Tribunal procedures. Nor did the respondent’s solicitor seek specification.[13]In light of the nature of the allegation in the application to amend and that there is cotemporaneous documentation in relation to the way in which the other two employees were “disciplined”, I was satisfied that the cogency of the evidence will not be affected.[14]So far as prejudice/hardship is concerned, the respondent will incur further expense taking instructions with regard to the detailed allegations and amending its response. However, I am hopeful that the Final Hearing which has been fixed for 28 March to 1 April 2022 will still be able to proceed as scheduled. I have already advised the parties of my decision by email and directed the respondent’s solicitor to provide a written response.[15]Were I to grant the application the respondent will incur further expense, but not a significant amount, in my view, and there may be delay in bringing the case to a conclusion.[16]On the other hand, were I to refuse the amendment, the claimants will be prevented from advancing allegations of inconsistency of treatment which might lead to a finding of unfair dismissal and from the information available at present, they have a stateable case.[17]I am of the view, therefore, that the balance of hardship favours the claimants.Conclusion
[18]For all these reasons and also having regard to the “overriding objective” in the Rules of Procedure and the interest of justice, I arrived at the view that the claimant’s application to amend should be granted. Further Procedure[19]As I recorded above, I am hopeful that the respondent’s solicitor will have sufficient time to take instructions and submit a written response to the amendment to enable the scheduled Final Hearing to proceed, as scheduled.