“The fact that an unless order has been made, which of course puts the party in question squarely on notice of the importance of complying with the order and the consequences if he does not do so, will always be an important consideration. Unless orders are an important part of the tribunal's procedural armoury (albeit one not to be used lightly), and they must be taken very seriously; their effectiveness will be undermined if tribunals are too ready to set them aside.” 48. B ut he went on to say at paragraph 36: “I wish to close by emphasising, in case this judgment is referred to in other cases, that, as I have already observed, all these cases turn on their own facts. I certainly would not wish it to be thought that it will be usual for relief to be granted from the effect of an unless order. Provided that the order itself has been appropriately made, there is an important interest in employment tribunals enforcing compliance, and it may well be just in such a case for a claim to be struck out even though a fair trial would remain possible. As has been pointed out, the case of Blockbuster Entertainment Ltd v James[2006] IRLR 630 did not concern an unless order; and the facts of Neary illustrate that a claim may be struck out even though a hearing is still possible – see in particular paragraphs 63 and 64 of the judgment.” 49. B efore leaving Thind , where the EAT reversed the effect of the tribunal's order, it is instructive to look at the factors on which particular reliance was placed in reaching that conclusion. Firstly, the default in that case was in no sense deliberate. Secondly, the default was not one within the claimant's control. Thirdly, there was solicitor error. Fourthly, there had been a prompt application for a variation of the unless order and (and I emphasise this) the order had been complied with at the date of the variation hearing. Finally, given that there were some five months remaining before the full merits hearing, there was no serious prejudice if a variation was made. 50. Finally, before turning to the grounds of appeal, it is well-established that an unless order which provides for strike out in the event of non-compliance by a particular date has effect on that date if there has been non-compliance in any material respect. Authority for that, if necessary, is Marcan Shipping (London) Ltd v Kefalas[2007] 1 WLR 1864 at 34. There are no exceptions to that rule. The Court of Appeal also observed at paragraph 34: “If it is thought that the court should not have made an order in those terms in the first place, the right course is to challenge it on appeal, but it may often be better to make all reasonable efforts to comply and to seek relief in the event of default.” 51. T he unless order in this case was made pursuant to rule 12(2), and the Claimant's application dated17 December 2012 to vary that order was an application made expressly pursuant to rule 12(2)(b). Ms Gallafent advances the argument that on its proper construction, the effect of any rule 12(2)(b) application is to stay the requirement for compliance with the rule 12(2) order pending its determination whatever that application might be. There is nothing in the express words of the rule to this effect. On its plain wording, the affected party is entitled to be notified and told of his or her right to apply to the tribunal in relation to any such order, and secondly, is entitled to apply to vary or revoke the order. 52. The right to apply is a right to apply before the expiry of the period within which the order was to be complied with, but it may also be exercised outside the period in circumstances where rule 12(3) is expressly made subject to rule 10(2)(e). The provision therefore affords a right to apply to have an order varied or revoked in circumstances where otherwise such an application might not have been entertained. For example, rule 11(1) provides a general right to apply to vary or revoke an order, but although not stated within the rule, practice establishes clearly that in the absence of some change of circumstance or other significant matter altering the position previously understood, such an application is unlikely to be entertained by a tribunal. 53. Accordingly, what rule 12(2) does is afford an express right for a party who did not appear and have the opportunity to make representations in relation to a 12(2) order, to have that opportunity. That is the policy rationale for rule 12(2). It provides an affected party with the opportunity to make such written or oral representations as they might have wished to make, and they are able to do that, either prior to the expiry of the time for compliance with the rule 12(2) order, or after time for compliance has expired. There is nothing in the wording of the provision that requires or entails suspension of the unless order in the meanwhile. Had Parliament intended that result, it would have been easy for that to have been expressly stated. Nor do I regard the fact that the application is ordinarily contemplated as being required to be made before the expiry of the 12(2) order as altering that conclusion. The requirement to act promptly is understandable in circumstances where an order has been made that is expected to be complied with, but an opportunity is offered (to ensure natural justice) for an affected party to come along and make representations about the appropriateness of that order. 54. This interpretation does not deprive rule 12(2) of any meaning, even if it is unlikely that an application to vary will be heard by the tribunal before the deadline for compliance with the rule 12(2) order. The period for attempting to comply is, in effect, extended by the mere fact that the application is made. At the hearing the affected party can make representations to vary or revoke the order and will have had, in effect, the benefit of that extended period in which to comply and to offer evidence of compliance, or substantial compliance. There can, however, be no expectation of any particular outcome. 55. Rule 34 has no application in this context because it applies only to judgments. Until the unless order takes effect as a judgment because the period for compliance has expired, it is an order that cannot be reviewed under rule 34. Similarly, as I have indicated, a party would not ordinarily be able to bring an application to review or vary under rule 11(1), absent some compelling basis for saying that circumstances had changed or there was some other compelling basis for entertaining such an application. 56. This construction is consistent with the overriding objective set out in regulations 3(1) and (2) of the 2004 Regulations which guide the construction of the 2004 Rules of Procedure. It affords an affected party the opportunity to be heard by a tribunal on an application to vary or revoke a rule 12(2) order. Tribunals have ample power to do justice, if it transpires that any unless order has been wrongly made or should be varied or if relief from sanctions should be given. 57. The “unless order” power is a salutary power designed to ensure compliance with tribunal orders and to ensure that the particular case is dealt with expeditiously and fairly. A party affected by it cannot avoid its consequences or the consequences of disobedience simply by making an application to vary or discharge. A party who chooses not to comply and instead relies on an application to vary does so at real and significant risk that the order will remain in effect as originally made. A party whose conduct has already attracted the sanction of an unless order cannot be entitled unilaterally to disarm it. That would be the consequence of Ms Gallafent's construction. Accordingly, attractively and persuasively as she has advanced this construction, I cannot accept it. The construction argument therefore fails. 58. In any event, I am persuaded by Mr Massarella in this case that, as a matter of fact, although there was a reference in the notes to the unless order to the opportunity to apply under rule 12(2), this was not in fact an order made under rule 12(2). I say that for two reasons. Firstly, the Claimant was a represented party, albeit not represented by legal representatives. Dr Davidson was there as her friend and representative and was recorded as such. He made submissions on her behalf, both as to the form of order he proposed and objecting to the form of order proposed by the Respondents. He had the opportunity to persuade the Tribunal, and indeed was successful in persuading the Tribunal, not to make the order sought by the Respondents. Secondly, I am not satisfied that this was an order made on the Judge's own initiative. This was an order made by the Judge in circumstances where she was invited to make a different unless order and different case management orders by both parties; Dr Davidson, opposing any unless order altogether. Having heard submissions and determined what was the fair and just approach to take in this particular case, the Employment Judge made the unless order in light of those submissions and representations. This was not a case where she acted on her own initiative. 59. In the alternative, Ms Gallafent submits that the Judge erred in refusing the Claimant’s application to vary the unless order by wrongly taking into account three matters. I do not accept that these matters give rise to any error of law by the Employment Judge, whether taken alone or together. First, the Employment Judge was entitled to refer to what she described as "apparent indications that the Claimant did not have a completed witness statement ready to be exchanged". There was no evidence to the contrary. An unless order had been made. If the Claimant attending a hearing at which she was seeking a variation or revocation of that order or some relief in relation to it, had prepared a witness statement ready for exchange, it was incumbent on her to say so and to make that clear. She did not do that, either through Dr Davidson when he attended on her behalf previously on 10 December, and nor did she do it when she attended in person on 27 February. In fact, Dr Davidson informed Judge Lewzey that the witness statement was not ready and that the Claimant required disclosure before she was in a position to provide her witness statement. These submissions were repeated before Judge Grewal, who was told that the reason the Claimant did not proceed to exchange was that she wished to have disclosure of the notes of Colin Peake's investigation before doing so. That point in particular is reflected by paragraph 35 of Judge Grewal’s decision and, although the Claimant through Ms Gallafent rejects that understanding and says that that was not the case, I am bound by Judge Grewal's finding and cannot go behind it. Moreover, it appears to me to be consistent with the Claimant's own letter of 3 January where she told the Employment Tribunal in terms that such disclosure was necessary "for the writing of witness statements and before exchange of witness statements". 60. Secondly, Ms Gallafent criticises Judge Grewal's finding that Judge Lewzey directed the Respondents to put their statements in the post. She does so on the footing that, at most, Judge Lewzey instructed the Respondents orally to give simultaneous exchange of those witness statements. Whether or not Judge Lewzey gave a direction or instruction is neither here nor there. The fact is at the hearing before Judge Lewzey, there was a discussion about whether that exchange would be simultaneous. That discussion resulted in an understanding and acceptance that the Respondents would do so and Dr Davidson expressed his satisfaction with that result. This is not surprising in circumstances where the Respondents had already sent their witness statements to the Claimant in an envelope which she returned. There could have been no doubt that the Respondents were ready to exchange and that they were prepared to exchange and, in those circumstances, I do not find it surprising that the matter was dealt with in the way it was by Judge Lewzey. Nor can I accept that the Claimant was under any misapprehension as to this position; indeed, her correspondence with the Respondent’s solicitors already referred to, makes plain that she understood that there would be simultaneous exchange. 61. The third matter criticised is Judge Grewal’s reliance on the fact the Claimant sought to make arrangements for simultaneous exchange of witness statements which I have dealt with above. 62. Further, Ms Gallafent argues that the Judge erred in refusing to grant the Claimant relief from sanctions by wrongly taking into account a series of matters set out at paragraph 20 of the substituted grounds. I have already dealt with the principles that apply to the question of relief from sanctions, and it is noted that the Judge (at paragraphs 38 to 43 of the Reasons) set out those principles and gave herself an appropriate legal direction. 63. The starting point in relation to any review of the Judge's refusal to grant relief must, as Mr Massarella submits, start with her finding at paragraph 48 that: “This is not a case where there has been some misunderstanding or an inadvertent or technical failure to comply. This is a case where the Claimant has chosen consciously and deliberately not to comply with the unless order, fully understanding the consequences of not doing so.”
“This case provides a salutary example of the value of the rule that the tribunals themselves are the best judges of the case management decisions which crop up every day as they perform the function, an important but seldom an easy one, of trying to do justice with the maximum of flexibility and the minimum of formality to the problems that arise from the employment relationship and its termination. Decisions of the kind that the Chairman is required to make in this case frequently call for a balance to be struck between considerations of time, cost and convenience as well as fairness to the parties. The vast majority of cases can and should be left to the tribunals to resolve for themselves without interruption from the appellate process.” 77. M ore recently in Fuller v London Borough of Brent[2011] IRLR 414 at 31, Mummery LJ warned against an over-analytical approach to Tribunals’ reasoning. He said: “The reading of an ET decision must not, however, be so fussy that it produces pernickety critiques. Over-analysis of the reasoning process; being hypercritical of the way in which the decision is written; focusing too much on particular passages or turns of phrase to the neglect of the decision read in the round: those are all appellate weaknesses to avoid.” 78. I n this case, the Employment Judge dealt with the application to amend over a hearing that lasted two days. She heard evidence from the Claimant, and although the Claimant even now contests that she was cross-examined despite Mr Massarella having provided his notes of her cross-examination at that hearing, I accept she was cross-examined. The Tribunal, in light of that evidence and the cross-examination, made findings of fact which is a further reason for appellate caution in relation to the decision. 79. The principles applicable to amendments are set out in a number of authorities, starting with Cocking v Sandhurst (Stationers) Ltd[1974] ICR 650 followed by British Newspaper Printing Corporation (North) Ltd v Kelly[1989] IRLR 222 and ultimately being authoritatively set out in the case of Selkent Bus Company Limited v Moore[1996] IRLR 661 where the EAT at [22] (Mummery J, as he then was) identified the relevant circumstances and factors that ought to be considered when considering whether to exercise a discretion to permit or refuse an amendment. Firstly, there should be consideration of the nature of the amendment; secondly the question of time limits; and thirdly, questions concerning the timing and the manner of that application. 80. The EAT dealing with the rule 3(10) hearing in this case, having referred to paragraph 22 of Selkent v Moore said : “All the circumstances must be taken into account. The matters he [Mummery J] identified were only some, but they were significant. He said they were ‘certainly’ relevant. The first was the nature of the amendment; the second the applicability of time limits, and the third the timing and manner of the application. As to the first, this needs to be said; first, that a cause of action is a set of facts that give rise to a legal remedy. The focus of any court therefore needs to be upon the facts that are alleged; the remedy may simply be a label, although most causes of action may involve some additional fact or a different emphasis to be placed upon the same facts. It is therefore well accepted that, if an amendment is in effect no more than or little more than applying a different legal label to the same set of facts, it is not a fresh cause of action; it is identifying rather a different way of looking at precisely the same facts for the convenience of the court and to enable justice to be done.” 81. More recently, in a case called Abercrombie & Ors v AGA Rangemaster Ltd[2013] ICR 213 , the Court of Appeal gave further guidance in relation to the question concerning the nature of the amendment at stake. What is required is a focus on the substance of the amendment and the extent to which it gives rise to, on the one hand, minor or technical amendments at the low end of the spectrum, or a wholly new allegation raising altogether new matters not previously raised at the other end of the spectrum. 82. Ms Gallafent argues that there is a significant difference between a re-labelling case and a wholly new allegation case. I agree. There is however, a spectrum between these two extremes. If the case is a re-labelling case, it is quite right that time limits are unlikely to defeat an amendment application because it is difficult to see how those time limits should properly be brought into play and difficult to see how prejudice can properly flow from an amendment that simply adds a new label. The position is otherwise where the amendment involves a substantial change in the case and the scope of enquiry that the Tribunal and the Respondents will have to address. 83. Here, the Employment Judge (at paragraph 29) identified the complaints that were being proposed by way of the April 2011 and March 2012 documents, and categorised them as falling into three broad categories. First, complaints of direct race discrimination in respect of events that occurred in or around April 2009 leading to the raising of the grievance; secondly, similar complaints in respect of the grievance process itself between May 2009 and3 December 2009 ; and thirdly, complaints of direct race discrimination in respect of suspension and the disciplinary process between January and June 2010. This was a reasonable approach to adopt. 84. At paragraph 31 Judge Grewal said: “Other than the complaints relating to the suspension and the disciplinary process, all the other complaints raise new factual allegations. This is not a minor amendment but a substantial amendment that would completely change the way the case will have to be defended. Instead of dealing with a complaint of victimisation over a four monthly period, the Respondent would have to defend and the Tribunal would have to determine a different complaint, one of direct race discrimination involving a large number of allegations covering a period of up to two years.” 85. L eaving aside the period of years in respect of which these allegations were said to cover, where it is agreed that the Tribunal over-stated the position, Ms Gallafent submits that the Employment Judge recognised the third category of complaints (and she includes the second category also, although the Tribunal did not recognise this) as raising no new factual allegations and, although not expressly stated by the Employment Judge, so far as those allegations are concerned, this was a mere re-labelling exercise. But having reached the conclusion that this was a mere re-labelling exercise, the Judge failed to follow through with this analysis and instead lumped all the proposed amended allegations together in what followed when she carried out the necessary balancing exercise. 86. I do not accept that submission. It places undue weight on a single sentence and the use of the singular term “amendment” in paragraph 31 and fails to look at the decision as a whole. Seen in the context of the decision as a whole and not treating that sentence as an isolated or stand-alone sentence, what the Judge was saying at paragraph 31 was, despite the fact that some of the complaints raised no new factual allegations, all the proposed new allegations raised substantial changes to the way in which the case would have to be defended. They amounted to a complete change and to substantial amendments. This was not a re-labelling exercise, whether in relation to the category (iii) or (ii) complaints at all. 87. Whether or not new factual allegations were raised, the finding that all the proposed amendments were substantial and would completely change the way the case would have to be defended, was a conclusion open to the Judge in this case. I agree with Mr Massarella that true re-labelling involves giving a different label or description to an allegation that raises all relevant factual issues. The example he gave was a case of unlawful deduction which could also be labelled breach of contract without any additional factual enquiry being required. To take another example, where a Claimant alleges in her claim, “I complained about race discrimination and because of that I was dismissed”, it would be difficult to argue, if unfair dismissal only was pleaded, that an amendment to plead victimisation was not simple re-labelling. 88. Here, however, whilst the factual allegations may have been raised in some, but certainly not all respects in the original claims, the Claimant was seeking to argue for the first time that what had happened to her at each stage of this process was done on the grounds of her race. This was, as the Judge found, a complete change in her case. First, a fresh period of enquiry was opened up, namely March 2009 to November 2010. Secondly, the scope of the factual enquiry was significantly widened. She was now saying that there had been a campaign against her because she was black, starting in March 2009 and continuing until she left employment. The fact that this was alleged to be a continuing act, moreover, militates against the adoption of a fragmentary approach. Even if only one or two of these amendments were to have been permitted, all the amendment matters would be capable of being advanced by way of background or by way of supporting evidence as part of her claims. Those were matters to which the Judge was entitled to have regard. 89. The point can be illustrated by reference to the March 2012 third ET1 produced by way of further amendment application, and the example, at paragraph 4, where the Claimant alleged that her position as a VSH involved acts of racial discrimination: “"I was the only black member of the team at the time. Jacqui agreed that my staff salary should be increased. She instructed me to look at parity of salary with their colleagues in other authorities. However, my own salary increase on parity with colleagues in other authorities was rejected.”
“I am a black African Caribbean woman and both management in general and Chris Hogan in particular subjected me to less favourable treatment than that which a white comparator would have received in similar circumstances.” 91. T he claim goes on, under the heading "Act of racial discrimination 5", to make allegations about the positive or otherwise, appraisals given to the Claimant during the course of her employment. There is also an allegation over the page in paragraph 10 that there was a failure to consult with her in the decision to delegate her duties to Sue Thompson, who is a white woman. 92. All of these allegations widen the scope of the factual enquiry that this Tribunal would have to undertake and that the Respondents would have to defend. The Respondents would have to positively rebut allegation of race discrimination and also, put forward positive evidence as to why these decisions and actions were taken. That would involve an enquiry into potential comparators, people who were of a different ethnic background or a similar ethnic background and how they were treated in order to identify whether race tainted these decisions and actions. The Respondents would need to consider questions of equal opportunities training, the incidence of discrimination complaints, the racial composition of the work force and other surrounding circumstances. An Employment Judge experienced in dealing with these issues would have appreciated the factual enquiry that was being opened up, both as to primary facts and as to inferences to be drawn from those facts. 93. Moreover, the Tribunal expressly found in this case that the new complaints proposed by way of amendment were all within the Claimant's knowledge. This was a case where she had knowingly elected not to pursue any allegations of unlawful direct race discrimination. She fully understood the case that had been pleaded on her behalf by competent solicitors. She expressed satisfaction with that position at a case management decision hearing and confirmed that she was not making allegations of direct race discrimination, as reflected by the order setting out the outcome of the case management decision hearing. The fact that she had taken this deliberate decision in the context of the proposed amendments was one that the Tribunal was obviously entitled to consider. 94. Having concluded at paragraph 31 that this was not a minor amendment (and I see no significance in the use of the singular word “amendment” to reflect all of the amendments that were being proposed), the Tribunal went on to make findings about the way in which the Claimant had conducted herself, the fact that she had had legal advice, that she had deliberately chosen not to pursue those complaints at paragraph 33. The Tribunal dealt with the question of memory fade and the fact that the Respondents would, in effect, have to start afresh. They would have to file another response; disclose additional documents and interview more witnesses. 95. The Tribunal addressed the second claim, and at paragraph 42 said: “I adopt the same approach in considering this application to amend as I did for the first claim. In seeking to add claims for direct race discrimination, the Claimant is seeking to add entirely new causes of action.”