Walsall MBC & Anor v Birch & Ors (Practice and Procedure : Amendment) [2011] UKEAT 0376_10_1702

EAT
Walsall MBC & Anor v Birch & Ors (Practice and Procedure : Amendment)
[2011] UKEAT 0376_10_1702 · 2011-02-17
[1]This is an appeal by Walsall Metropolitan Borough Council (“the Council”) and Housing 21 Ltd (“Housing 21”) against part of a judgment of the Employment Tribunal (Employment Judge Hughes sitting alone) dated 9 April 2010. By this judgment permission was granted to a group of 103 Claimants (“the Claimants”) to amend their equal pay claims to join Housing 21 to an existing claim against the Council. As we shall see, the effect was to save the claims. Both the Council and Housing 21 say that the amendment should not have been granted. The Background Facts[2]The Claimants were all originally employed by the Council. They were members of a trade union, Unite. On 8 April 2008 their employment transferred to Housing 21. It is common ground that their employment transferred under the Transfer of Undertakings (Protection of Employment) Regulations 2006 (SI 2006/246) (“TUPE”).[3]Following the transfer equal pay claims were intimated by Unite. Letters stating a grievance were sent to both the Council and Housing 21 on 18 August 2006. Solicitors were instructed. It happens that different solicitors were instructed in respect of different employees. The firm of Rowley Ashworth represented the Claimants. These solicitors presented a claim form to the Employment Tribunal on behalf of the Claimants on 29 September 2008. But the claim form named only the Council as a Respondent. Other solicitors (Thompsons) representing other employees named both the Council and Housing 21 as Respondents.[4]It was on 19 September 2009, nearly a year later, that the Claimants, who were by now also represented by Thompsons, applied to amend the claim by joining Housing 21 as a Respondent. It was this application which the Tribunal granted on 9 April 2010. The Underlying Law[5]Certain features of the underlying law are not in issue for the purposes of this appeal. They form the backdrop to the application and to this appeal.[6]The claims were made under the Equal Pay Act 1970 (“the EPA”). The EPA has now been repealed and replaced by provisions in the Equality Act 2010 , but nothing turns on the new provisions for the purposes of this appeal.[7]Section 1 gave employees the benefit of an “equality clause”. The broad effect of this provision was to insert in their contracts of employment provisions which operated to ensure that they were employed on terms not less favourable for equivalent work than those applying to their counterparts of the opposite sex.[8]The effect of TUPE was to transfer from the Council to Housing 21 on completion of the transfer all the transferor’s duties and liabilities under or in connection with the contract of employments of the Claimants: reg. 4(2)(a) of TUPE. Moreover any act or omission of or in relation to the transferor before the transfer was completed is deemed to have been an act or omission of or in relation to the transferee: reg. 4(2)(b). Accordingly even if the Council was in breach of the equality clause prior to the transfer that liability could not be enforced by employees against the Council after the transfer. Any such claim had to be brought against Housing 21 as transferee.[9]It follows that the Claimants ought to have brought their claims against Housing 21, not the Council even though they relied on comparators and breaches of the equality clause during the time when they were employed with the Council. If it was not always clear that this was the law, it was certainly established by the decision in Sodexo Limited v Gutridge [2009] ICR 70 (Appeal Tribunal), 1486 (Court of Appeal). It was held that the equal pay claimed by the claimants in that case (which was predicated upon male comparators during employment with the transferor) was capable of surviving the transfer. Once the right to equal pay crystallised, it was not terminated on transfer but rather was transferred to the transferee.[10]There were relevant time limits in the Equal Pay Act both on the bringing of equal pay claims before tribunals and on how far back a claim could be taken. The proceedings had to be instituted by the qualifying date: see section 2(4) of the Equal Pay Act 1970 and, for the definition of the qualifying date, section 2ZA. The claim could only be taken back as far as the arrears date: see section 2(5) of the 1970 Act and, for the definition of the arrears date, section 2ZB(3) – in this case “the date falling six years before the day on which the proceedings were instituted”. The Claimants were “standard cases” for the purpose of these provisions.[11]While the Claimants remained in the employment of the Council they were not affected by a qualifying date. Section 2ZA did not impose on an employee any qualifying date while that employee remained in the same employment. They could begin proceedings at any time. They were, however, limited to six years from the before the date on which the proceedings were instituted: section 2ZB(3).[12]Once the Claimant’s employment transferred under TUPE to Housing 21, however, a time limit became applicable. This is because section 2ZA(3) provided that the qualifying date was the date falling six months after the last day on which the Claimant was employed in the employment. Where, as in the Claimants’ cases, grievances were presented a further three months was added to this period by virtue of reg. 15(1) and (5)(a) of the Employment Act 2002 (Dispute Resolution) Regulations 2004 . Unless, however, claims were presented within 9 months from the date of transfer any claims arising out of the time prior to the transfer would be statute-barred.[13]I have stated the law in the last paragraph as the Court of Appeal has now found it to be in Sodexo Limited v Gutridge [2009] ICR 1486 . It was, however, not necessarily obvious that a time limit became applicable on a TUPE transfer. It was, for example, arguable that the effect of the TUPE transfer was that the women never ceased to be employed in the same employment, so that the time limit in section 2ZA(3) had not started to run: this was the view of Janet Smith LJ, dissenting in the Court of Appeal. But the decision of the Appeal Tribunal [2009] ICR 70 , handed down on 31 July 2008 and reported first in October 2008, was to the contrary; and this decision was upheld by the majority (Wall LJ and Pill LJ) in the Court of Appeal on 14 July 2009.[14]The relevance of the legal background may therefore be summarised as follows. Once the Claimants’ employment had transferred under TUPE to Housing 21, any claims for equal pay ought to have been directed to Housing 21, not to the Council. The decision in Sodexo confirmed this and brought into sharp focus the importance of doing so within 9 months of the transfer. As we have seen, the proceedings were commenced on 29 September 2008, about the time when Sodexo was becoming known. The 9 month period expired on 8 January 2009. The decision in the Court of Appeal in Sodexo was on 14 July 2009. The application to amend by joining Housing 21 was made on 19 September 2009.[15]There is one other feature of the decision of the Court of Appeal in Sodexo which it is, I think, important to keep in mind. Any rights the Claimants had to equal pay when employed by the transferor would continue during the course of their employment with the transferee employer. See [2009] ICR 1486 at paragraphs 27-29, 81, 100-104. So it is still necessary, even if the claim for pre-transfer remuneration is statute-barred, to investigate the validity of the claim to equal pay during employment with the transferor in order to adjudicate upon an equal pay claim against the transferee relating to the time after transfer. The Selkent Principles[16]The Employment Tribunal’s power to grant leave to amend the claim so as to introduce a new party is derived from a combination of rule 10(2)(k) and (q). These are powers which, according to rule 10(2), may be exercised “at any time”.[17]In Selkent Bus Co v Moore [1996] ICR 836 Mummery P gave general guidance as to how applications for leave to amend, including applications for amendments raising a new cause of action, should be approached. In doing so he built on earlier cases, including Cocking v Sandhurst Stationers [1974] ICR 650. The “Selkent principles”, as they are generally known, include the following. “(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 addition 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, e.g., in the case of unfair dismissal, section 67 of the Employment Protection (Consolidation) Act 1978.(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 Regulations of 1993 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.”[18]It is common ground that the Employment Appeal Tribunal, which hears appeals only on questions of law, has a limited role in reviewing the exercise of a discretion according to Selkent principles. It is common ground that the test can be taken from Noorani v Merseyside TEC Ltd [1999] IRLR 184 at paragraph 32:
“…..Such decisions are, essentially, challengeable only on what loosely may be called Wednesbury grounds, when the court at first instance exercised the discretion under a mistake of law, or disregard of principle, or under a misapprehension as to the facts, where they took into account irrelevant matters or failed to take into account relevant matters, or where the conclusion reached was “outside the generous ambit within which a reasonable disagreement is possible”
. The Tribunal’s Reasons[19]The Employment Judge, having dealt with other issues in respect of which there is no appeal, turned to the application to join Housing 21 in paragraphs 38 to 53 of her Reasons.[20]In paragraphs 38 to 41 she summarised the Claimant’s submissions. She noted that counsel for the Claimants acknowledged that any claim now brought against Housing 21 would be out of time as regards the pre-transfer period (paragraph 39); and in the course of summarising counsel’s submissions she said that the Claimants would indeed clearly be out of time to claim any pre-transfer loss.[21]In paragraphs 42 to 43 she summarised the submissions for the Council and Housing 21. It was submitted that to allow joinder would allow the Claimants to outflank the time limit of six months post transfer; and that it would be a misdirection in law to apply the “unvarnished principles” set out in earlier cases to an equal pay claim, since they have the unique feature that damages can be recovered in respect of arrears payments backdated for up to six years. Strong emphasis was placed on delay in making the application; but it was not submitted that any particular prejudice (beyond the need to meet claims which would otherwise be statute-barred) arose from the late application.[22]In paragraph 44 the Employment Judge dealt with the argument that special principles should apply to an application to join outside the limitation period in equal pay cases. She said:
“44. In my opinion this is amendment application which falls to be dealt with under Cocking and Selkent principles. I do not accept that it would be a misdirection in law for me to apply the unvarnished principles set out in Cocking and Gillick to an equal pay claim, indeed those principles are binding on me. I do accept that the nature of equal pay claims, in particular the strict six month time limit with no provision for extension and the six year backdating period, are relevant factors to take into account, and that they are weighty factors, both as regards the impact on the claimants if the amendment is not allowed, and as regards the impact on House 21 Ltd if it is.”
[23]After summarising the Selkent principles in paragraph 45 of her reasons, the Employment Judge considered their application in paragraphs 46-53 of her reasons. In order to see how she reasoned I think it is necessary to set this passage out extensively. “45. In Selkent the Employment Appeal Tribunal noted that when deciding whether to exercise discretion to grant leave to amend an originating application the tribunal should take account of all of the circumstances and balance the injustice and hardship of allowing the amendment against the injustice and hardship of refusing it. The EAT also noted that relevant circumstances would include: the nature of the amendment; the applicability of statutory time limits if a new complaint or cause of action is proposed to be added by way of amendment; and the timing and manner of the application.46. As regards the nature of the amendment, Selkent draws a distinction between minor amendments such as the correcting of clerical and typing errors, the addition of factual details to existing allegations, or the addition/substitution of other labels to facts already pleaded; and substantial alterations making entirely new factual allegations which change the basis of the existing claim. I accept that the addition of the second respondent will not entail a substantial alteration such that the basis of the existing claims is changed, or entirely new factual allegations are added. I also accept that the second respondent is already a respondent in respect of some claimants in these proceedings. However, it does seem to me that it cannot be properly described as a minor amendment to join Housing 21 Ltd as respondent when it did not face the possibility that it would become respondent to 103 additional claims prior to the amendment application being made.47. As regards the applicability of the statutory time limits, clearly the initial complaints against the first respondent were presented in time but the joinder application is out of time. It is clear that if I allow the amendment i.e. the joinder of Housing 21 Ltd, the consequence will be that the affected claimants can circumvent a problem with they presently face in respect of establishing liability for damages for pre-transfer breaches of the equality clause losses against Housing 21 Ltd as transferee. If I allow the amendment, the relevant date for backdating purposes is the date when the claims were originally presented, notwithstanding the fact that they were not presented against Housing 21 Ltd on that date. If I do not allow it, the claimants are out of time to claim against Housing 21 Ltd for pre-transfer breaches of the equality clause.[48]As regards the failure to name Housing 21 Ltd as second respondent when the claims against the first respondent were presented on 29 September 2008 (which was within six months of the transfer), the evidence from Mr Clews suggests that there was an intention to do so, hence the grievances being sent to Housing 21 Ltd. This factor assists the affected claimants in that it suggests that the failure to name Housing 21 Ltd as second respondent was an oversight, however it goes against them in that it demonstrates that it was known, or at least thought possible, that Housing 21 Ltd as transferee could be liable in respect of equal pay claims for the period pre-transfer. I do accept that such knowledge does not amount to knowledge that the time limit to claim against the transferee for pre-transfer breaches of the equality clause started running from the date of transfer. However the EAT's judgment in Sodexo v Gutridge was handed down on 31 July 2008 and reported in IRLR in October 2008 ( [2008] IRLR 752 ). Therefore, even if the outcome was not known when the claims of these affected claimants were presented (although my recollection is that the case attracted publicity on legal updater services prior to being reported in the law reports) it was certainly reported widely shortly afterwards. Consequently, there clearly was the potential to apply to join Housing 21 Ltd as second respondent after Sodexo (EAT) was reported and to still be in time - the primary time limit to claim within six months ran from 8 April 2008 but would be extended by three months because of compliance with the statutory grievance procedure. Overall it is clear that the claimants' failure to name Housing 21 Ltd as second respondent when they presented their claims, or to apply to do so once the outcome of Sodexo in the EAT was known, is a factor which weighs against joinder now because there is no good explanation as to why this could not have been done within the applicable time limit.49. I shall next deal next with the timing and manner of the application. There is force in what the respondents say about this point. As noted above, the time limit for bringing equal pay claims in respect of pre-transfer losses can fairly be said to have been clear from the time when the Employment Appeal Tribunal handed down its judgment in what was then Sodexho v Gutridge . That authority would be followed by tribunals until and unless the judgment was successfully appealed. Yet this application was not made at that point. Instead, the application was not made until several months after the Court of Appeal's judgment. That is a factor which weighs against joinder now.50. Also, as regards the timing and manner of the application, Miss Motraghi is right to point out that by adding Housing 21 Ltd as a second respondent to these particular claims, it will not jeopardise the timetable in respect of these proceedings; it will not require Housing 21 Ltd to be represented at hearings where it would not have been present in any event; and, it will not introduce any new issues to be determined. That factor weighs in favour of joinder.51. I shall next consider the factor arising as result of Issue 3. Assuming for these purposes that the first respondent establishes that it is the wrong respondent in respect of claims against transferred employees, the respondents' argument is that if I allow joinder, I will be allowing the claimants to resuscitate otherwise hopeless cases. The respondents' representative points out that the joinder application was only made, after the first respondent applied for claims against it in respect of transferred former employees to be dismissed. As regards those points, whilst I accept these are potentially relevant factors, it does seem to me that the key point is to recognise that the reason for the joinder application is precisely this point - the claimants recognise they have the wrong respondent. That is why their cases are "hopeless". It cannot be said their cases have been demonstrated to be "hopeless" in any other way, for example that they are unmeritorious. It is fair to say that most, if not all, joinder applications arise because the wrong respondent was originally named and therefore the claim against that respondent has no reasonable prospect of success. It is of course relevant that the claimants should have known this earlier and acted on it sooner, but I have already noted those points in paragraphs 48 and 49. I do not think that the fact that the case against the first respondent has no reasonable prospect of success because there is no reasonable prospect of recovering damages from it (assuming its arguments on the pension point to be correct) adds anything to those points.52. I also consider a very relevant factor to be the fact that it would be difficult for these affected claimants to understand why colleagues who have claims in the same proceedings can look to the transferee as responsible for pre-transfer inequalities of pay caused by breaches of the equality clause, but they cannot. That would be a harsh and undesirable outcome. I think that a reasonable and objective person would consider it to be unfair. Whilst I accept that it may well be that it was careless not to bring a claim against the second respondent at the time when the original claims were presented, this is but one factor to take into account, and the question is whether to visit that unsatisfactory state of affairs on the affected claimants by requiring them to seek redress in some other forum.53. Having set out the factors I consider to be relevant, I must now weigh up the balance of hardship. I think Ms Motraghi is right to say that the balance of hardship is firmly in favour of the affected claimants. If I do not allow joinder they have no prospect whatsoever of pursuing claims for equal pay in respect of their employment with the first respondent, apart from claims for pension loss which, as noted above, the first respondent argues will not succeed because there is no loss. They are out of time and no extension is possible. As regards the prejudice to Housing 21 Ltd, as noted above that entity is already a party to these proceedings. Therefore the prejudice and hardship to Housing 21 Ltd would mainly arise if the respondents are unsuccessful in defending these claims. For the above reasons, my decision is to grant the application to join Housing 21 Ltd as respondent to the claims of the transferred Unite members.” The Appeal The impact of time bars[24]It is convenient first to clear the decks of one ground within the Notice of Appeal which, it is conceded, is effectively foreclosed by earlier decisions, at least at the level of the Employment Appeal Tribunal.[25]This ground is that there is no discretion to allow an amendment to add a cause of action or party where the application to make the addition is made outside a limitation period. To my mind Mr Andrew Clarke QC is right to concede that, as the law presently stands, this point is not open to him at the level of the Employment Appeal Tribunal.[26]Mr Clarke has made specific reference to Gillick v BP Chemicals [1993] IRLR 437 and Drinkwater Sabey v Burnett and Kent County Council [1995] IRLR 238, cases on late joinder of a respondent which are directly in point. These decisions are part of a more general stream of authority on the question whether amendments may be made if the effect is to defeat an accrued limitation period. These authorities now establish that an Employment Tribunal has discretion in any case to allow an amendment which introduces a new claim out of time; there is no rule of law that an amendment cannot be allowed because it would, if presented as a fresh claim, be time barred. At the level of the Court of Appeal the cases include British Newspaper Printing Corporation (North) Limited v Kelly [1989] IRLR 222 and Ali v Office of National Statistics [2005] IRLR 201 (at paragraph 40). The cases were reviewed in some detail by Underhill J in TGWU v Safeway Stores Ltd [2007] UKEAT/0092/07 at paragraphs 7-13, followed in Enterprise Liverpool Ltd v Jonas [2009] UKEAT/0112/09 (see paragraphs 14-20). Most recently, the Appeal Tribunal has held that similar principles apply where there is an application in an equal pay claim to amend the claim to add a new cause of action: East Dunbartonshire Council v Trade Union backed claimants [2010] UKEATS/0005/10 at paragraph 20.[27]On this appeal Mr Clarke has referred, in the course of considering a “relation back” point to which I shall return in a moment, to cases on the law relating to amendment in civil proceedings where the amendment would be outside the limitation period: Liff v Peasley [1970] 1 WLR 781 (see especially 799A-D and 803-805), and Ketteman v Hansel Properties Ltd [1987] 1 AC 189 (see especially 199-201 and 210B-H). He says that the civil practice was not to grant amendment or joinder which would circumvent the limitation period; and the reason for this is not that the amendment relates back to the date of proceedings but rather that it would be futile to allow the amendment or joinder, since there would still be an unanswerable defence of time-bar. This, he submits, is a factor hardly mentioned in the cases thus far; and a powerful reason for holding to the view that amendment and joinder should never be allowed outside the limitation period. I record this argument; for the reasons I have explained it is an argument which will have to be deployed in or beyond the Court of Appeal. The “relation back” point[28]It is also convenient to mention and clear away another point. The Employment Judge proceeded on the basis that the amendments would date back to the date of the original claim. It will be recalled that arrears can be claimed in a standard case back to “the date falling six years before the day on which the proceedings were instituted”. It was common ground before her that this was the law.[29]Mr Clarke is anxious to make it clear that in his submission the stance taken below was wrong, by virtue of Potter v North Cumbria Acute Hospitals NHS Trust [2009] IRLR 900 . In that case the Appeal Tribunal (Slade J presiding) held that if an amendment was made to a comparator (which, on authority, introduces in an equal pay claim a new cause of action) the six year period would not be six years from the original claim, but six years from the date of the amendment: see paragraphs 115-116. Mr Clarke submits that this is the true position; and he signals that hereafter he will wish to argue this point.[30]Mr Clarke, however, does not say that the Employment Judge’s exercise of discretion was vitiated by the view she took concerning the relation back of the arrears period. In my judgment he is quite right to take that view: if anything, it would have been a point weighing on the side of Housing 21 if the claim could be backdated further. Rather he wishes to make it clear for the future that the point will be argued.[31]In these circumstances I do not think I need do any more than record his argument and also record the argument of Mr Andrew Short QC that by virtue of the express wording of the Equal Pay Act the claim should indeed be backdated from the date proceedings were instituted. This, again, is an argument for another day. The exercise of discretion[32]I turn then to Mr Clarke’s submissions on the appeal, which are directed to the reasoning of the Employment Judge in this case.[33]He submits that particular considerations apply to an equal pay claim, which the Employment Judge ought to have taken into account and failed to take into account. He submits that it is highly relevant that there are fixed and immutable periods under the Act both for the time within which the claim must be brought and for the period over which arrears of equal pay may be claimed. These, he submits, required explicit and careful consideration by the Employment Judge in her reasoning. There was no general power to extend time on a just and equitable basis, nor even a power to extend time if it was not reasonably practicable to bring the claims in time. The exercise of a Selkent discretion was required to give weight to these matters. To leave them out of account was to leave out of account a material factor for the purpose of the Noorani principles.[34]He fortifies this submission by reference to Sodexo , where (as we have seen) the Court of Appeal by a majority took the view that the limitation period for bringing proceedings in respect of pre-transfer arrears of pay was six months from the date of transfer: see Wall LJ at paragraph 96 and Pill LJ at paragraphs 105 – 106. He submits that the Employment Judge ought not to have granted an amendment which circumvented Sodexo , or at least ought to have weighed this in the balance as a factor of much greater importance.[35]In any event, he submits, the expiry of the limitation period is a particularly weighty factor for the Employment Judge to bear in mind. It could not possibly be a factor in favour of allowing a claim to proceed that it was outside the time limit. Nor is it a neutral factor. It is a factor to be weighed in the balance, often decisively, in favour of the respondent to the application. There would, he submits, need to be a specific explanation justifying the failure to commence proceedings within the limitation period.[36]Mr Clarke then submits that the Employment Judge’s reasons demonstrate that she erred in principle by failing to give weight to these matters. He points to paragraph 53 of the reasons, and submits that in the balancing of hardships the Employment Judge took treated the expiry of the limitation period as a point in the Claimants’ favour. He took me through the Employment Judge’s reasons, seeking to demonstrate that no adequate account was taken of the limitation factor. He criticised paragraph 52 of the reasons as adopting a layman’s approach and therefore giving no weight to the limitation factor.[37]While I accept that it is always an important consideration that the relevant limitation period has expired before the joinder of a new party, I do not accept that equal pay claims are in a special category because they are subject to immutable time limits, whether as to the commencement of the claim or as to the period over which arrears may be claimed. I can see no reason in principle why this should be so. In practical terms, many other cases (those where claims must be brought within 3 months if it is reasonably practicable to do so) are also subject to strict time limits. Nor do I accept that it is a special consideration that the limitation period arises by virtue of the decision of the Court of Appeal in Sodexo . In my judgment that is, in itself, a neutral consideration.[38]Nor do I accept Mr Clarke’s criticism of the Employment Judge’s reasoning. It is plain that she took into account that the limitation period had expired, and accorded considerable weight to that matter: see, for example, paragraph 44 of her reasons. She took into account that Housing 21 would face 103 additional claims which it would not otherwise face: see paragraph 46 of her reasons. She took into account that granting the amendment would have the consequent of enabling the Claimants to circumvent the problem they faced in claiming liability for damages for pre-transfer breaches: see paragraph 47 of her reasons. She took into account also that the Claimants (no doubt by their representatives) should have seen and noted the problem earlier: see paragraph 51 of her reasons.[39]I do not accept the criticism of paragraph 52 of the Employment Judge’s reasons. It is true that she looked up from her books at this point and considered the matter from the perspective of the affected Claimants. But I do not think she lost sight of the limitation point. It is one thing to find that a claim is statute barred when the party relying on the statutory bar has to face and deal with similar claims; another thing to find that a claim is statute barred when it is brought against a party not otherwise alerted to it or having to defend it. The former is the position here. That, I think, is the point the Employment Judge had in mind.[40]When assessing the balance of hardship, in paragraph 53 of her reasons, she was of course bound to take into account that the Claimants would suffer hardship in the sense that they would be unable to bring a claim for pre-transfer losses by any other means. But this does not mean that she failed to take into account that Housing 21 was losing the benefit of an accrued limitation period. Housing 21 was bound to face claims which it would have to defend on the merits; but she recognised that if Housing 21 was unsuccessful in defending those claims prejudice and hardship would arise.[41]Standing back and looking at the Employment Judge’s reasons, I have no doubt that she applied correct principles of law, took into account and restricted herself to that which is relevant and reached a permissible conclusion. For those reasons the appeal will be dismissed.