Science Warehouse Ltd v Mills (Practice and Procedure : Amendment) [2015] UKEAT 0224_15_0910

EAT
Science Warehouse Ltd v Mills (Practice and Procedure : Amendment)
[2015] UKEAT 0224_15_0910 · 2015-10-09
[1]I refer to the parties as the Claimant and the Respondent, as below. The appeal is that of the Respondent, against an order of the Employment Tribunal sitting at Sheffield (Employment Judge Little, sitting alone on 21 July 2015; “the ET”) sent to the parties on 30 July 2015. The Claimant was then represented by her solicitor, now by Mr MacPhail, counsel. The Respondent has been represented throughout by consultants, today by Mr Rees. By its order, the ET permitted the Claimant to amend her claim so as to add a complaint of victimisation. The Respondent appeals; complaining no ACAS early conciliation (“EC”) certificate had been issued in respect of the additional claim. The appeal was set down for an expedited hearing, the Full Merits Hearing before the ET being due to take place later this month.[2]At the outset of this hearing, I was told that the Claimant has since obtained an EC certificate in respect of the new claim in any event. Although the Respondent must have been aware of that earlier, Mr Rees himself was only informed of this circumstance this morning. In any event, neither representative was in a position to say whether this rendered the present appeal entirely academic or not. Given the risk that there might still be an issue between the parties requiring fairly speedy determination, this hearing has proceeded. The Background Facts and the ET’s Decision[3]The Claimant was employed by the Respondent from 1 April 2013 until she resigned on 9 March 2015, when she was on maternity leave. On 28 January 2015, she had submitted details of prospective claims under sections 11, 13 and 18 of the Equality Act 2010 (“the EqA”) to ACAS. On 27 February 2015 ACAS issued an EC certificate.[4]On 8 April 2015, the Claimant presented an ET claim form (ET1), in which she complained she had been subjected to discrimination because of pregnancy or maternity, contrary to the EqA . Included in the Respondent’s response to that claim (the ET3) was a statement that, had she not resigned, the Claimant would have been subject to an investigation and potentially to disciplinary action in respect of a conduct issue that had come to light during her maternity leave. Details of the misconduct in question were also set out.[5]The Claimant would have received that response in early July 2015. In advance of a telephone Preliminary Hearing listed for 21 July 2015 she made an application to amend her claim to include a complaint of victimisation in respect of the new allegation made against her. Contending that her ET claim was a protected act (not disputed), the Claimant said she had suffered a detriment as a result of the Respondent’s allegation. The Respondent objected to the proposed amendment solely on the basis that the Claimant had not complied with the EC procedure in relation to an additional claim of victimisation under section 27 of the EqA .[6]Observing that it was unclear why the Respondent had included the additional allegation in its response and that the Claimant had only recently been made aware of the matter, the ET permitted the amendment, relevantly holding: “… Whilst it is usually necessary for an early conciliation certificate and number to be obtained prior to commencing proceedings in the Employment Tribunal, it is not a prerequisite of an amendment application.” (Paragraph 2) The Relevant Legislative Provisions and Legal Principles[7]The relevant legislative provisions concerning the EC procedure are found at section 18A of the Employment Tribunals Act 1996 (inserted by section 7 Enterprise and Regulatory Reform Act 2013 (“the ERRA”)). As from 6 April 2014, it is provided:
“ 18A. Requirement to contact ACAS before instituting proceedings (1) Before a person (“the prospective claimant”) presents an application to institute relevant proceedings relating to any matter, the prospective claimant must provide to ACAS prescribed information, in the prescribed manner, about that matter. This is subject to subsection (7). … (3) The conciliation officer shall, during the prescribed period, endeavour to promote a settlement between the persons who would be parties to the proceedings. (4) If - (a) during the prescribed period the conciliation officer concludes that a settlement is not possible, or (b) the prescribed period expires without a settlement having been reached, the conciliation officer shall issue a certificate to that effect, in the prescribed manner, to the prospective claimant. (5) The conciliation officer may continue to endeavour to promote a settlement after the expiry of the prescribed period. … (7) A person may institute relevant proceedings without complying with the requirement in subsection (1) in prescribed cases. … (8) A person who is subject to the requirement in subsection (1) may not present an application to institute relevant proceedings without a certificate under subsection (4). … (12) Employment tribunal procedure regulations may (in particular) make provision - (a) authorising the Secretary of State to prescribe, or proscribe requirements in relation to, any form which is required by such regulations to be used for the purpose of providing information to ACAS under subsection (1) or issuing a certificate under subsection (4); …”
[8]By Regulation 2 of the Employment Tribunals (Early Conciliation: Exemptions and Rules of Procedure) Regulations 2014 SI 2014/254 (“the 2014 Regulations”) the following interpretations are provided relevant to section 18A:
“… “prospective claimant” means a person who is considering presenting a claim form to an Employment Tribunal in relation to relevant proceedings; “prospective respondent” means the person who would be the respondent on the claim form which the prospective claimant is considering presenting to an Employment Tribunal; …”
[9]The Schedule to the 2014 Regulations then sets out the Early Conciliation Rules of Procedure (“the EC Rules”). Relevantly, they provide as follows:
“ 1. Satisfying the requirement for early conciliation To satisfy the requirement for early conciliation, a prospective claimant must - (a) present a completed early conciliation form to ACAS in accordance with rule 2; or (b) telephone ACAS in accordance with rule 3. 2. … (2) An early conciliation form must contain - (a) the prospective claimant’s name and address; and (b) the prospective respondent’s name and address. (3) ACAS may reject a form that does not contain the information specified in paragraph (2) or may contact the prospective claimant to obtain any missing information. … 3. (1) A prospective claimant telephoning ACAS for early conciliation must call the telephone number set out on the early conciliation form and tell ACAS - (a) the prospective claimant’s name and address; and (b) the prospective respondent’s name and address. (2) ACAS must insert the information provided under paragraph (1) on to an early conciliation form.”
[10]The ET’s power to allow an amendment to a claim is provided by Rule 29 of Schedule 1 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 (“the ET Rules 2013”) - the general power to case manage proceedings - which provides:
“ 29. Case management orders The Tribunal may at any stage of the proceedings, on its own initiative or on application, make a case management order. The particular powers identified in the following rules do not restrict that general power. …”
[11]The power to permit an amendment to a claim is a matter of judicial discretion, to be exercised “in a manner which satisfies the requirements of relevance, reason, justice and fairness inherent in all judicial discretions” per Mummery J (as he then was), in Selkent Bus Co Ltd v Moore [1996] ICR 836 EAT; a case which provides general guidance as to relevant matters to consider when determining an application to amend an ET claim.[12]Possible amendments may include a wide range of matters, from the minor correction of a typographical error to the addition of an entirely new claim. There is no time limit for making an application to amend, although questions of time limits in respect of new claims and issues of delay will be relevant factors for the ET to take into account in exercising its discretion. As has been accepted by the Respondent in the current proceedings, an amendment may be allowed to add a new claim based upon a cause of action postdating the presentation of the ET1 itself (see, for example, Okugade v Shaw Trust UKEAT/0172/05 and Prakash v Wolverhampton City Council UKEAT/0140/06). Submissions The Respondent’s Case[13]Before summarising the submissions made on behalf of the Respondent, I should make clear what has not been challenged on this appeal. First, whilst the Claimant’s amendment was not formally put in writing, the Respondent takes no issue with that. Further, it is undoubtedly the case that the amendment concerned matters arising after the ET1; it was, after all, the ET1 itself that was the protected act. The Respondent does not contend that this necessarily required the submission of an entirely new ET1. It does, however, argue that an amendment that seeks to add an entirely new claim, which postdates the ET1, requires the Claimant to go back and invoke the EC procedure once again.[14]That brings me into the substance of the Respondent’s submission on appeal. It contends that “any matter”, for the purposes of section 18A, means the claim in question. In this regard it relies on the Explanatory Notes to section 7 of the ERRA 2013 , which state that:
“… a prospective claimant must first have submitted the details of their claim to ACAS before they can lodge the claim at an employment tribunal. …”
[15]The Respondent observes that there was nothing to stop the Claimant from obtaining an EC certificate before applying for the amendment; that was the practical answer here (and see Cranwell v Cullen UKEATPAS/0046/14, per Langstaff P, albeit that case concerned exemptions rather than additional claims.[16]For completeness, I note that it is common ground that the list of prescribed cases in which an EC certificate is not required does not refer to additional claims added by way of amendment as an exempted category.[17]Returning to the Respondent’s submissions, Mr Rees takes specific exception to the ET’s distinction between the institution of proceedings and the adding of a new claim by way of amendment. He objects that this would permit a Claimant to lodge an ET1 for what he calls a simple wages claim, whilst still employed, and then, if dismissed, to add an unfair dismissal and/or discrimination claim by way of later amendment without first going through EC. The Claimant’s Case[18]On behalf of the Claimant, it is submitted that the ET was properly exercising its case management powers under Rule 29. The requirements of section 18A of the 1996 Act only applied to a person who wished to “present an application to institute relevant proceedings” (subsections 18A(1) and (8)). An application to amend did not fall into that category. Section 18A was intended to apply to those who had not yet presented a claim to the ET, hence:(i) the use of the phrase “the prospective claimant” (section 18A(1));(ii) the further use of that term in the 2014 Regulations ;(iii) its definition at Regulation 2 of the 2014 Regulations ; and(iv) the general impression given by the Explanatory Notes. The Claimant was not ‘considering’ instituting proceedings; she had already done so; she was not a prospective Claimant.[19]Further, section 18A(1) provided that before a person institute proceedings “relating to any matter” she must have provided ACAS with the prescribed information about that matter. Regulation 2(2) of the 2014 Regulations provided that the prescribed information was simply the name and addresses of the parties (it did not even state when that information had to be provided); the Claimant had already done that.[20]The prescribed information did not include details of the complaint or dispute. In many cases, the information provided might be oral and simply unknown to the Respondent. It was unlikely that Parliament intended that ACAS EC officers might be called to give evidence as to what the Claimant had said in the otherwise confidential discussions. There could, therefore, be no implication that the prospective Claimant had to provide specific information as to each possible intended claim or cause of action. That being so, what difference of substance arose in respect of the addition of a claim by way of amendment, in circumstances where the facts giving rise to the claim occurred only after the presentation of the ET1?[21]Even if there were any jurisdictional issue arising from section 18A, the ET had a residual power to permit applications to amend in any event. That could include amendments to add claims otherwise falling outside the ET’s jurisdiction, for example by reason of the operation of a time limit (see British Newspaper Printing Corporation (North) Ltd v Kelly and Ors [1989] IRLR 222, per Lord Donaldson MR at paragraph 10, and Lehman Brothers Ltd v Smith UKEAT/0486/05). There was no compelling reason why the same approach might not be used to permit amendments despite jurisdictional issues arising from section 18A.[22]Finally, Rule 10 of the ET Rules 2013 provided that a claim might be rejected if it did not include the EC number; it did not so provide for any application to amend.[23]The facts of this case showed why it was properly dealt with as a question of case management. The Claimant made her application in good time. She could not have made it as part of the original ET1, because it arose after that. It was not obviously unmeritorious. It was linked to the matters complained of in the ET1, and, apart from the technical point taken regarding EC, there was no objection to the exercise of the ET’s discretion. Discussion and Conclusions[24]I start by considering what early conciliation requires. Section 18A uses the broad terminology of “matter” rather than “cause of action” or “claim”. It envisages a “prospective Claimant” and imposes certain obligations in terms of the EC process upon that person, in respect of which there are only limited exceptions (see Cullen ).[25]The Respondent contends “any matter” for the purposes of section 18A must be read as referring to the claim in question, relying on the reference to “claim” in the Explanatory Notes. I disagree. I am not persuaded the reference to “the claim” in the Explanatory Notes is to be understood as using that term in a formal sense, to refer to a claim based on a particular cause of action. Parliament chose to use the broader terminology of “matter” - “ any matter ”, “ the matter ” - and to read the reference to “claim” in the Explanatory Notes as requiring a narrower construction would, in my judgment, not provide an accurate explanation of section 18A.[26]That broader interpretation is not only suggested by the fact that section 18A does not use the term “claim” (which might have suggested something more specific) it is, further, consistent with the way in which EC is to operate, in particular as indicated by the EC Rules . The Respondent’s reading of section 18A would suggest the information given to ACAS had to formally set out each such cause of action, each ‘claim’, but that is not required by the EC Rules ; no doubt with the hope of avoiding disputes and satellite litigation as to whether proper notification had been given of each and every possible claim subsequently made to the ET.[27]As for the objection that the amendment of an existing claim is not included within the prescribed exceptions permitted under section 18A(7), I consider that this is because the question of amendment of existing proceedings falls within the case management powers of the ET; no specific exemption needed to be made. Thus it is that a claim that does not include an EC number will not be accepted by the ET (Rule 10 of the ET Rules 2013 ), but no such provision is made in respect of an application to amend an existing claim.[28]Furthermore, section 18A does not purport to address the case of an existing Claimant, merely that of the prospective Claimant. For those who are existing Claimants, who seek to add additional claims to existing proceedings, this will be a matter for the ET, exercising its case management powers under Rule 29 of the ET Rules 2013 and applying the well known guidance laid down in cases such as Selkent v Moore .[29]Does this approach undermine the objective of the EC procedure, as Mr Rees suggests? Would it permit (using his example) an accrual of new claims simply by way of amendment of existing proceedings and thus avoiding early conciliation? Mr Rees’ fears in this regard fail to take account of the fact that such amendments would only be permissible if allowed by the ET, properly exercising its judicial discretion. An ET is not bound to permit such an application. The fact that it concerns a matter that is entirely new, having arisen only after the ET1 was lodged, may well be a relevant factor weighing against allowing an amendment. If such an application to amend were not permitted, it may be that the Claimant becomes a prospective Claimant in respect of that matter, and there may then be an obligation to invoke the EC procedure unless one of the section 18A(7) exceptions apply. If the amendment is permitted, however, I cannot see that the EC process arises. It is simply a matter of case management.[30]It seems to me that the most the Respondent can really say is that an ET considering whether or not to allow an amendment might consider the potential avoidance of EC to be a relevant factor. I do not see, however, that it can be determinative. The rationale of the EC scheme is to encourage the settlement of employment disputes before litigation has commenced and positions have become entrenched. Apart from the initial obligation to contact ACAS, however, the process is entirely voluntary. If the Claimant has no interest in participating in a conciliation process, she is not obliged to do so; the same is true of the Respondent. EC builds into the ET process a structured opportunity for parties to take advantage of ACAS conciliation; albeit an opportunity that has to be formally acknowledged by the initial contact to be made with ACAS and the issuing of an EC certificate. The initial requirement placed upon a prospective Claimant is, however, limited; it may even be by telephone. In any event, she is only required to provide her own name and address and that of the prospective Respondent. She is not required to state the nature of the claim she might subsequently bring, still less to label it under the relevant statutory provisions. That information might emerge during the conciliation process, but there is no requirement that it does so, and normally the ensuing discussions will remain confidential in any event.[31]Given, then, the limited nature of the requirement and the way in which EC operates as an opportunity rather than a more stringent obligation, was the ET bound to decline to allow an amendment to add an additional claim where that could not have been a subject of the original EC process? I do not consider that it was. Had the subsequent claim been entirely unrelated to the existing proceedings - and I am not going to speculate on what that might have been - the ET might have declined to permit the amendment, but that decision would be informed by a variety of factors, not merely the fact that no EC process could have been engaged in.[32]The practical answer proposed by the Respondent suggests that the Claimant would have had to have undergone the entirely technical exercise of undertaking a second EC notification to ACAS in respect of a cause of action that was new, albeit that it was related to an existing matter already before the ET, had been raised at an early stage of the proceedings and that the ET, otherwise having regard to the relevant matters set down in Selkent , would be prepared to allow to be added by way of amendment. If that were really required by the legislation, then, of course, I would be obliged to so rule, however academic the process would seem to be (although the fact that it would be entirely academic might assist in determining whether the section should be given the construction for which Mr Rees contends). I am satisfied, however, that this is not what section 18A requires. This was a matter for the ET’s case management discretion. No error of law is disclosed in the approach adopted and I duly dismiss the appeal.

Cited in 1 later judgment