Remploy Ltd v Abbott & Ors (Practice and Procedure : Amendment) [2015] UKEAT 0405_14_2404

EAT
Remploy Ltd v Abbott & Ors (Practice and Procedure : Amendment)
[2015] UKEAT 0405_14_2404 · 2015-04-24
[33]“33. … These were case management decisions. I do not need to cite authority for the obvious proposition that an appellate court should not interfere with case management decisions by a judge who has applied the correct principles and who has taken into account matters which should be taken into account and left out of account matters which are irrelevant, unless the court is satisfied that the decision is so plainly wrong that it must be regarded as outside the generous ambit of the discretion entrusted to the judge. ” 61. I draw attention to paragraph 13 of the Employment Appeal Tribunal Practice Direction , as this is sometimes overlooked, as the passage is in that part of the Practice Direction relating to bias and procedural irregularity:
“13. Complaints about the Conduct of the Employment Tribunal Hearing or Bias … 13.6. Parties should note the following: … 13.6.2. The EAT recognises that employment judges and Employment Tribunals are themselves obliged to observe the overriding objective and are given wide powers and duties of case management (see Employment Tribunal (Constitution and Rules of Procedure) Regulations 2004 (SI No 1861)), so appeals in respect of conduct of Employment Tribunals which is in exercise of those powers and duties, are the less likely to succeed.” 62. Rather than refer to a number of authorities that are well known, I refer to observations I made in Basra : “44. I now turn to the relevant legal principles. I derive the following principles from the authorities on appeals from Employment Tribunals [including Noorani v Meryside Tec [1999] IRLR 184 referred to by Mr Linden]. These Decisions are entrusted to the discretion of the court of first instance. Appellate courts must recognise that in such Decisions different courts may disagree without either being wrong, far less having made a mistake in law. Such Decisions are essentially challengeable on what loosely may be called Wednesbury grounds, when the court at first instance exercised the discretion under a mistake of law, 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. If Employment Tribunals are firm and fair in the management of cases pre-hearing and in the conduct of the hearing, the Employment Appeal Tribunal should, wherever legally possible, back up their case management decisions and rulings. 63. I shall return to this case shortly when considering general principles applicable to granting permission to amend in the Employment Tribunal and shall also make references to passages in the Selkent and Adams cases. Amendment 64. If a party wishes to add to his claim something not already pleaded, he will require permission to amend if the point is to be raised. The principle in Chapman v Simon [1994] IRLR 124 is well known; in litigation before the Employment Appeal Tribunal, a point not set out in the ET1 cannot be taken on appeal by a Claimant. The point was taken further in Ahuja v Inghams [2002] EWCA Civ 1292. This was an unusual case in which evidence was adduced by the Claimant for three allegations of separate incidences of discrimination. The evidence was the subject of cross-examination and submissions, but in the Court of Appeal Sedley LJ observed at paragraph 49: “Here, as it happened, one allegation was pleaded but not formally proved and two were proved but not pleaded. A lay person may be forgiven for not differentiating between the two things but the law says otherwise.” 65. In that case Mummery LJ had said at paragraph 35: “… Chapman v Simon is Court of Appeal authority for the proposition that the jurisdiction of the Employment Tribunal is limited to complaints made to it. Under Section 54 of the 1976 Act the complainant is entitled to complain to the tribunal that a person has committed an act of unlawful discrimination. But it is the act of which complaint is made and no other that the tribunal must consider and rule on. If the act of which complaint is made is found to be not proven, it is not for the tribunal to find another act of racial discrimination of which complaint has not been made and to give a remedy in respect of that act. The tribunal should confine itself to the acts of racial discrimination specified in the originating application, unless it allows the originating application to be amended.” 66. It is only in exceptional cases that a point not raised in the Employment Tribunal may be raised in the Employment Appeal Tribunal on appeal; see Kumchyk v Derby City Council [1978] ICR 1116 . The importance of cases being presented to the Employment Tribunal on the basis of the formal claim has more recently been the subject of the observations of Langstaff J in Chandhok v Turkey [2015] IRLR 195 . In that case an Employment Tribunal had determined a point raised in a witness statement rather than in the ET1. Langstaff J stressed the importance of confining cases to what was pleaded in the ET1: “16. I do not think that the case should have been presented to him in this way or that it should have formed part of his determination. That is because such an approach too easily forgets why there is a formal claim, which must be set out in an ET1. The claim, as set out in the ET1, is not something just to set the ball rolling, as an initial document necessary to comply with time limits but which is otherwise free to be augmented by whatever the parties choose to add or subtract merely upon their say so. Instead, it serves not only a useful but a necessary function. It sets out the essential case. It is that to which a Respondent is required to respond. A Respondent is not required to answer a witness statement, nor a document, but the claims made - meaning, under the Rules of Procedure 2013, the claim as set out in the ET1. 17. I readily accept that Tribunals should provide straightforward, accessible and readily understandable fora in which disputes can be resolved speedily, effectively and with a minimum of complication. They were not at the outset designed to be populated by lawyers, and the fact that law now features so prominently before Employment Tribunals does not mean that those origins should be dismissed as of little value. Care must be taken to avoid such undue formalism as prevents a Tribunal getting to grips with those issues which really divide the parties. However, all that said, the starting point is that the parties must set out the essence of their respective cases on paper in respectively the ET1 and the answer to it. If it were not so, then there would be no obvious principle by which reference to any further document (witness statement, or the like) could be restricted. Such restriction is needed to keep litigation within sensible bounds, and to ensure that a degree of informality does not become unbridled licence. The ET1 and ET3 have an important function in ensuring that a claim is brought, and responded to, within stringent time limits. If a “claim” or a “case” is to be understood as being far wider than that which is set out in the ET1 or ET3, it would be open to a litigant after the expiry of any relevant time limit to assert that the case now put had all along been made, because it was “their case”, and in order to argue that the time limit had no application to that case could point to other documents or statements, not contained within the claim form. Such an approach defeats the purpose of permitting or denying amendments; it allows issues to be based on shifting sands; it ultimately denies that which clear-headed justice most needs, which is focus. It is an enemy of identifying, and in the light of the identification resolving, the central issues in dispute. 18. In summary, a system of justice involves more than allowing parties at any time to raise the case which best seems to suit the moment from their perspective. It requires each party to know in essence what the other is saying, so they can properly meet it; so that they can tell if a Tribunal may have lost jurisdiction on time grounds; so that the costs incurred can be kept to those which are proportionate; so that the time needed for a case, and the expenditure which goes hand in hand with it, can be provided for both by the parties and by the Tribunal itself, and enable care to be taken that any one case does not deprive others of their fair share of the resources of the system. It should provide for focus on the central issues. That is why there is a system of claim and response, and why an Employment Tribunal should take very great care not to be diverted into thinking that the essential case is to be found elsewhere than in the pleadings.” 67. In my opinion, the judgment of Langstaff J is highly material to my considerations in this appeal and points to the importance of requiring “new” claims, or claims not set out in the ET1, to be subject to the discipline of an application for amendment before they can be raised. 68. The principles applicable to the grant of permission for an amendment in the Employment Tribunal are well known and clearly set out in the decision of Mummery J (then the President of the Employment Appeal Tribunal) in Selkent . I specifically draw attention to the following. At page 844 he said: “(5) … (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.” (my underlining) And at page 843: “(3) Consistently with those principles, a chairman or a tribunal may exercise the discretion on an application for leave to amend in a number of ways. (a) It may be a proper exercise of discretion to refuse an application for leave to amend without seeking or considering representations from the other side. For example, it may be obvious on the face of the application and/or in the circumstances in which it is made that it is hopeless and should be refused. If the tribunal forms that view that is the end of the matter, subject to any appeal. On an appeal from such a refusal, the appellant would have a heavy burden to discharge. He would have to convince the appeal tribunal that the industrial tribunal had erred in legal principle in the exercise of the discretion, or had failed to take into account relevant considerations or had taken irrelevant factors into account, or that no reasonable tribunal, properly directing itself, could have refused the amendment. …” 69. Mummery J referred to Adams , to which I shall come shortly. 70. Mummery J continued in conclusion: “(2) … an application for amendment made close to a hearing date usually calls for an explanation as to why it is being made then, and was not made earlier, particularly when the new facts alleged must have been within the knowledge of the applicant at the time when he was dismissed and at the time when he presented his originating application. 71. In Adams Wood J (then the President of the Employment Appeal Tribunal) explained the principles upon which Employment Tribunals (then Industrial Tribunals) should exercise their discretion: “15. In giving its decision in interlocutory proceedings an industrial tribunal is exercising its discretion, but that discretion must be exercised within the powers given to the industrial tribunal on that issue and within the relevant legal principles which have been evolved largely through decisions of appellate courts. It is the exercise of a judicial discretion. 16. It seems to us desirable, and indeed we would have expected, that the same principle would apply to interlocutory appeals as for final appeals even though the former will in the main be the result of the exercise of a discretion. Thus, in examining an interlocutory order of an industrial tribunal or of a chairman sitting alone we would define three issues: (a) Is the order made one within the powers given to the Tribunal? (b) Has the descretion [sic] been exercised within guiding legal principles? eg as to confidential documents in discovery issues. (c) Can the exercise of the discretion be attacked on Wednesbury principles? 17. This approach seems to us to follow from the reasoning of Arnold J in Bastick v James Lane (Turf Accountants) Ltd [1979] ICR 778. That case concerned an appeal from a refusal by a chairman of tribunals to adjourn proceedings. In considering the question of discretion Arnold J at p.782A says this: “Now we think that when we, in this appellate tribunal, approach a consideration of the validity of a decision by an industrial tribunal, or by the appropriate officer of an industrial tribunal, upon a matter of discretion, we must look for two things, the discovery of either of which would be sufficient to entitle us to overturn the exercise of that discretion. Either we must find, in order so to do, that the tribunal, or its chairman, has taken some matter which it was improper to take into account or has failed to take into account some matter which it was necessary to take into account in order that discretion might be properly exercised; or, alternatively if we do not find that, that the decision which was made by the tribunal, or its chairman, in the exercise of its discretion was so far beyond what any reasonable tribunal or chairman could have decided that we are entitled to reject it as perverse.” ” 72. I return to Basra , in which I referred to other considerations to be borne in mind by the Employment Tribunal. I noted that the authorities are helpfully and comprehensively collected by HHJ Eady QC in a case very similar on the facts ( City Facilities Management v Ling [2014] UKEAT/0396/13). The case had been decided in the Employment Tribunal by the same Employment Judge as in Basra . At paragraph 47 in Basra I said in relation to the principles upon which permission to amend should be given: “47. When an application for amendment is made close to a hearing date, it will usually call for an explanation as to why it is being made then and was not made earlier, particularly when the new facts alleged must have been within the knowledge of the applicant at the time he presented his originating application. This does not mean that an amendment raising issues out of time is to be treated in the same way an application to extend time for presenting an application either on just and equitable grounds or on the grounds of reasonable practicability, as the case may be. In amendment cases, the test that is applied is the hardship test. It will involve, however, the Employment Tribunal considering the reason why the application was made at the stage when it was made. Why was it not made earlier? It requires the Employment Tribunal to consider whether, if the amendment was allowed, delay would ensue as result of adjournments, whether there were likely to be additional costs, whether because of the delay or because of the extent to which the hearing might be lengthened if the new issue was allowed to be raised, particularly if the costs were 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 or was of lesser quality than it would have been earlier. The paramount considerations are the relative injustice and hardship involved in refusing granting an amendment or refusing to do so. 48. It is essential before allowing an amendment that it must be properly formulated, sufficiently particularised, so the Respondent can make submissions and know the case it is required to meet. In this regard, I refer to the decision of Mr Recorder Luba QC in Chief Constable of Essex Police v Kovacevic UKEAT 0126/13. It was the practice of the former President of the Employment Tribunal, Burton J, in cases where he granted permission to amend not to allow the advocates to leave the building before producing at least a manuscript draft. That has also always been my almost invariable practice: I always ask advocates not to leave the court building without leaving a written document draft for approval, if they wish to amend.” 73. When is an amendment not required? There are circumstances in which a point is so well known and obvious that an Employment Tribunal may be expected to determine the point in any event even if not specifically advanced by the parties. This may well be so in a case in which either or both of the parties are not represented. 74. The high water mark of such cases is perhaps Langston v Cranfield University [1998] IRLR 172 , in which the Claimant had been unrepresented at the Employment Tribunal and remained unrepresented in the EAT; the Respondent did not appear. It appears that the Claimant was not up to the challenge and told the EAT, “I understand I probably made a mess of the Tribunal”
. The Claimant claimed that the dismissal for redundancy was unfair at the Employment Tribunal. The only issue identified by the Employment Tribunal was whether the Claimant was fairly selected for redundancy. However, on appeal he sought to raise issues relating to alleged inadequate consultation prior to dismissal and whether the employers had taken reasonable steps to find alternative employment for him. The Respondent opposed this on the grounds that these issues had not been raised before the Employment Tribunal and could not, therefore, be argued in the Employment Appeal Tribunal, relying on such authorities as Kumchyk , to which I have already referred. HHJ Peter Clark held that:
“30. … Where an applicant complains of unfair dismissal by reason of redundancy we think that it is implicit in that claim, absent agreement to the contrary between the parties, that the unfairness incorporates unfair selection, lack of consultation and failure to seek alternative employment on the part of the employer.”
He later added:
“34. … We would normally expect the industrial tribunal to refer to these three issues on the facts of the particular case in explaining its reasons for concluding that the employer acted reasonably or unreasonably in dismissing the employee by reason of redundancy.”
The EAT permitted the appeal to proceed on the new points on the basis that the Employment Tribunal should have considered these points regardless of whether the parties had referred to them. 75. This decision was considered by the Employment Appeal Tribunal (HHJ Ansell) in Buckland v Aifos [2005] All ER (D) 40 (Oct). In that case the Employment Tribunal took the view that it was not appropriate for an Employment Tribunal to deal with issues that were not raised by the parties in circumstances where the parties had themselves defined the issues and not identified those ones as issues for consideration. The Employment Tribunal was not obliged to go outside the nature of the inquiry as it had been defined by the parties, and declined to follow Langston . 76. I do not consider that the decision of Langston is of blanket application. Whether an Employment Tribunal is bound to take a point not raised by the parties will depend on the circumstances, and I shall consider this matter further when I come to my discussion and conclusions. If a point was not raised by the parties, the necessary evidence upon which a decision may be based may well not have been adduced. 77. I have heard substantial argument as to the effect of the list of issues and whether the presence of an issue in the list of issues will give the Employment Tribunal jurisdiction to determine that issue even if not raised in the ET1, nor has it been the subject of amendment. 78. The point may be academic, because although there may have been some consensus as to the list of issues, no list of issues has ever been agreed let alone approved by the Employment Tribunal. The starting point of consideration must be the well-established rule in Chapman and the other authorities I have cited that stresses that for an Employment Tribunal to have jurisdiction to decide a particular claim it must be pleaded. 79. Lists of issues are valuable case management tools widely used in Employment Tribunals. However, even when a list of issues is approved by the Employment Tribunal, it is not an order of the Employment Tribunal nor a pleading. In Parekh v London Borough of Brent [2012] EWCA Civ 1630 Mummery LJ stated:
“31. A list of issues is a useful case management tool developed by the tribunal to bring some semblance of order, structure and clarity to proceedings in which the requirements of formal pleadings are minimal. The list is usually the agreed outcome of discussions between the parties or their representatives and the employment judge. If the list of issues is agreed, then that will, as a general rule, limit the issues at the substantive hearing to those in the list: see Land Rover v Short Appeal No UKEAT/0496/10/RN (6 October 2011) at 30 to 33. As the ET that conducts the hearing is bound to ensure that the case is clearly and efficiently presented, it is not required to stick slavishly to the list of issues agreed where to do so would impair the discharge of its core duty to hear and determine the case in accordance with the law and the evidence …”
If a party subsequently disagrees with the list, the proper course is to query it with the Tribunal, not to seek to appeal to the Employment Appeal Tribunal. 80. While a list of issues may limit the issues to be determined, consistently with the authorities the list of issues cannot extend the list of issues to be determined beyond those contained in the pleadings. Any addition to those issues will require an amendment. 81. Employment Tribunals are also obliged to have regard to the overriding objective, including the avoidance of delay, dealing with cases in ways proportionate to their complexity and the importance of issues, in exercising their very wide case management powers, including in particular the giving of permission to amend. Discussion and Final Conclusions: Taking points not in the ET1 82. In my opinion, it is contrary to principle to permit a point to be taken in the Employment Tribunal or on appeal unless it has been pleaded. As a general rule the addition of further Particulars of an existing allegation will require an amendment to be made. If the fresh points can properly be considered to be particularisation of an allegation already pleaded, a more liberal approach may be taken in considering whether to grant permission to amend, than in cases where the point is a “new” point, or will require the parties to produce further evidence or disclosure and prejudice the timetable set for the proceedings or cause further delay. Further as I have already observed, it is not easy to see how the Employment Tribunal could take a point that depends on factual investigation unless the parties have prepared and led some evidentiary material. The question, for example, of whether the Respondent was in breach of its obligations in relation to seeking suitable alternative employment cannot be determined in a factual vacuum. In straightforward cases it may properly be left to the Employment Tribunal to determine for example all the Burchell points or various heads of compensation for unfair dismissal, but in a complex case such as the present case where the parties are legally represented and have pleaded their case with some particularity, any addition to the Particulars will require an amendment, which will have to be applied for and considered in the usual way on conventional grounds. I ask forensically how the Employment Tribunal might have been expected to consider the question of alternative employment if the parties had not raised it. The point could only properly be determined, if the Employment Tribunal were bound to determine the point, if it had been drawn to the attention of the parties, who would then have had to consider what evidence if any might be required and to make appropriate submissions. 83. I do not consider that the principle in Langston has any application to the present case, because of its complexity, history of case management and professionally drawn notices of application. I am supported in my view that an amendment was necessary because the Claimants evidently accepted this was the case by making an application (even if they now assert they may not have needed to) to amend, and the Employment Tribunal acceded to the application. 84. Was it necessary to amend? It is clear therefore, in my opinion, that permission to amend in the circumstances of this case was necessary. What the Claimants seek to raise are not new Particulars of pleaded allegations, but new allegations. Even if they could simply be classed as Particulars, permission to amend would still be required. Even if permission to amend were not required, the Employment Tribunal has adequate case management powers to prevent an issue being raised unexpectedly that might cause the need for an adjournment or take the other side by surprise by reason of inability to call evidence or produce documents. 85. I do not take HHJ Peter Clark in Langston as saying that in any case where a point such as failure to seek alternative employment on the part of an employer in cases of alleged unfair dismissal in redundancy dismissals has not been taken in the Employment Tribunal, it can always be taken on appeal, or that the Employment Tribunal is required to take the point of its own motion. It may be that in some cases where the pleadings are sparse and a point is so obvious that an Employment Tribunal should take the point even if it has not occurred to the parties, provided the Employment Tribunal brings this to the attention of the parties so they can deal with it. On the other hand there will be, for example, cases in which there has been comprehensive case management and the parties have elected not to regard the point as being an issue that requires to be decided. Neither do I take HHJ Peter Clark to have said that if a particular series of factual allegations related to a pleaded issue were not raised, the Employment Tribunal is nonetheless bound to determine them. The Judgment in Langston has no resonance at all in a complex case such as the present, where the parties are well represented and have engaged in extensive case management, and the addition of the new points would be likely to derail the previous case management and delay any trial. I do draw support from the decision of HHJ Ansell in Aifos , who came to a similar conclusion. I consider that the Employment Tribunal fell into error in holding that it was required by Langston to consider all aspects of unfair dismissal by reason of redundancy, whether raised by the parties or not. 86. The crux of the appeal, as it seems to me, relates to the Employment Tribunal’s Decision at paragraph 13 of the Judgment where in assessing the balance of prejudice the Employment Tribunal considered that the prejudice to the Respondent did not outweigh the injustice that would be done were the Claimants not able to put forward the particularity of the “generic” allegations in respect of alternative employment. If and insofar as the Employment Judge placed any reliance upon the inclusion of these matters in the list of issues, that list was not agreed. The Employment Judge does not appear to have given any consideration to the effect of the amendments on previous case management and the delay this would entail. As a result of the amendments, if they are allowed to stand, comprehensive new case management will be required, and it may well be necessary to abandon the idea of centralised test cases and instead hold numerous more-local hearings. The Employment Tribunal has not explained how the claims are now to be litigated, neither has the Employment Tribunal considered the reasons for the delay in raising these issues but has approached the issue on the basis that they are merely particularisation of existing grounds, which I do not accept to be the case. The Employment Tribunal has not addressed the reasons that were given for not raising these matters earlier, nor has it ascertained when these matters first came to the attention of the Claimant’s legal advisers. 87. The Employment Tribunal should have looked at each proposed amendment separately rather than lumping them all together and should have addressed the evidence of Ms Goldsbrough. These amendments, as can be seen, are not particularised as they should have been before permission to amend could have been granted. In the absence of particularised amendments it was impossible for the Employment Tribunal or for the Respondent to consider the effect of those amendments, in particular in relation to previous case management and whether the timetable for the hearing would be affected. These matters will require consideration of what further evidence from witnesses is available and what further disclosure may be necessary, regardless of whether or not what the Claimants seek to do is to add further Particulars of existing allegations. The case has progressed so far through extensive and effective case management on the basis of particular issues set out in the claims, and for those to be varied requires amendment. It is crucial, therefore, that the Employment Tribunal should have been in a position to consider the effect of any amendment. The Employment Tribunal and the parties had been preparing for months for a hearing on the basis of the case as defined in the ET1 and response, and it is clear that if new issues were to be raised, significant further case management would be required and the expenditure of further time and expense. These are matters the Employment Tribunal has scarcely dealt with. The Employment Tribunal has scarcely dealt with the prejudice the Respondent claims to have suffered in relation to the absence of witnesses and documentation, the increase in the length of the hearing, the additional witnesses and disclosure that might be required, together with the additional costs. 88. The Employment Tribunal was clearly wrong when it observed that the Respondent had not stated whether it considered the amendment would require a postponement. I have already drawn attention to paragraph 19(e) of Mr Linden’s Skeleton placed before the Employment Tribunal: “The new issues will likely require a postponement of the November Hearing …”, the most significant effect of the amendment. The Employment Tribunal has simply said it had regard to the overriding objective, but the only specific matter it referred to was that of the possibility of delay. The Employment Tribunal does not appear to have considered what the effects would be of the parties not being on an equal footing because of the especial prejudice to the Respondent. It also does not appear clearly that the Employment Tribunal had regard to obligations of proportionality and dealing with the case expeditiously and to the saving of expense. 89. I recognise the restrictions on overturning case management decisions reached in the exercise of the discretion of the Employment Tribunal. I consider, however, that the Employment Tribunal placed itself in great difficulty by failing to ensure that before it granted permission to amend, it had before it a properly particularised proposed amendment. This failure in itself in sufficient to flaw the exercise of discretion. Without that the Employment Tribunal was simply not in a position to consider the effect of the proposed amendments on existing and future case management and in particular whether the previously agreed model was achievable in the light of the fragmentation of the issues. The effect of allowing the new issues to be raised is to leave existing case management in tatters, and the case is no nearer a hearing. The Employment Tribunal’s careful and effective previous case management of a very complex set of proceedings is in great danger of being unravelled. The lead Claimants are still not identified, the Claimants have still not completed taking instructions, and the Claimants are still not in a position to particularise the “new” issues, let alone propose further issues appropriate to the efficient disposal of the actions by the mechanism of lead cases. Although clearly many of the issues for determination have been agreed as issues or are likely to be agreed, as yet there is no agreement or even proposals as to how the latest issues can be accommodated. 90. During the course of submissions I enquired of Mr Panesar and Mr Engelman in relation to the selection of closing-down teams and redeployment issues and whether there was any overall policy in relation to these matters. I learnt from them and Mr Linden that there was no overall policy; the method of selection was left to individual plant managers, there were some 60 plants, and so it could be there were 60 separate methods of selection. In my opinion, the investigation of procedures in 60 separate plants will not be capable of fitting into a generic issue or a small number of generic issues. It may be necessary, when the matter is further examined, that these matters will have to be examined on a plant-by-plant basis. This feeds into another issue. All the plants were shut several years ago, and the staff, including managers, have dispersed to the four winds (assuming they can be traced). I would not have expected documents to be retained and email accounts to be preserved, nor can I accept that the Respondent should have recognised the necessity of retaining documents and email accounts pending possible litigation, because of the enormous number of documents concerned. If the Claimants wish to pursue an application for adding the “new” issues, they should do so on the basis of properly formulated and particularised amendments. The Employment Tribunal will then have to consider whether the new issues are compatible with the retention of the current model of determining generic issues by lead cases. The Employment Tribunal will have to consider the likely trial date, the length of any proceedings, which include the new issues, and the ability of the Respondent to deal with the new issues when they have been particularised by reference to the need to call further witnesses and provide further documents. The Employment Tribunal will also need to consider the reason for the delay by the Claimants in raising the “new” points and when the Claimants first knew of them. 91. I had hoped to hear of further case management progress, as I was aware that there were further hearings, and I am also currently considering the “sift” of a Notice of Appeal by the Claimants in relation to disclosure issues. 92. I regard it as vital that this case is returned to the Employment Tribunal for comprehensive case management as soon as possible and a reconsideration of the application to amend (if proceeded with) in relation to overall case management. 93. For these reasons, I allow the appeal and set aside the order of the Employment Tribunal in relation to permission to amend.