The issue before the tribunal was whether the claimant should be granted leave to amend her claim so as to include a claim under the Agency Workers Regulations (Northern Ireland) 2011. The claimant had sought advice from a number of sources but relied on lack of knowledge, understanding, and experience in relation to the process, although acknowledging that at all material times that she was an Agency Worker.

The first named respondent contended that any claims under the Regulations were wholly new claims not contained within the original claim forms and could not be regarded as a ‘relabelling of facts’ already pleaded in the case. It was also contended that there would be prejudice caused, further delay in the case and that the balance of hardship should fall against the claimant.

The tribunal made clear that a distinction must be drawn between amendments which are merely designed to alter the basis of an existing claim and amendments which add or substitute a wholly new claim or unconnected cause of action. Based on this, the tribunal held that if the amendments constituted a new claim then Regulation 18(5) of the 2011 regulations required consideration of whether it is ‘just and equitable’ to consider them out of time.

After holding that the proposed amendments constituted a new claim, the tribunal then held that it was not ‘just and equitable’ to extend the relevant time limit. It relied on the late stage at which the issue of amendments was raised and further relied on two main considerations: 

a) The claimant had access to an array of advice for a period of time; and
b) That the overall hardship including that the interlocutory process would be reopened and additional witness evidence 

Practical lessons

Whilst the potential hardship to the respondents was an important factor, the tribunal could not look past the fact that the claimant had access to a number of information sources who could have informed her of the existence of the 2011 Regulations and their applicability to her. It appears that in such factual circumstances the tribunal almost creates a presumption that a claimant will be properly informed unless strong evidence to the contrary is adduced.