Latest in Employment Law>Case Law>Johnstone v Glasgow City Council [2024]
Johnstone v Glasgow City Council [2024]
Published on: 28/05/2024
Article Authors The main content of this article was provided by the following authors.
Jason Elliott BL Lecturer in Law and Barrister
Jason Elliott BL Lecturer in Law and Barrister

Jason Elliott was called to the Bar of Northern Ireland in 2013 and is the Associate Head of School of Law at Ulster University.  As a practising barrister, he has developed a largely civil practice representing individuals, companies and public bodies in litigation. This covers a wide range of areas including personal injuries, wills and employment law. In terms of employment law, he has represented both applicants and respondents in the Industrial Tribunal.   At Ulster University, Jason lectures extensively on the civil areas of practise such as Equity and Trusts and delivers employment law lectures for both undergraduate and postgraduate students.

Background

Summary Description:

Amendment applications to be adjudicated based upon the relative injustice or hardship caused by allowing or refusing them rather than grouping them into distinct classifications.

Background:

The claimants were foster carers.  They had cared for a child for 10 months until he was removed from their care.  They claimed unlawful deduction from wages and detriment relating to protected disclosures as they had claimed they had disclosed some health and safety concerns.

This legal saga began with the respondent denying that the claimants were workers.  In 2017 the Tribunal found that they were employees.  This was appealed.  During that appeal to the EAT, the claimants sought to amend their ET1 form which was not heard due to the appeal.  The respondent's appeal, relating to status, was dismissed.

The Tribunal requested in 2021 that the claimants submit a formal application to amend.  This was refused by the Tribunal in October and was subsequently appealed to the EAT.

Outcome:

The basis of the appeal was that the claimants referred to different categories of amendment citing Harvey on Industrial Relations.  This source was not referred to by the Tribunal and instead the amendments were viewed more generally.   After the general inquiry each of the amendments were examined specifically to determine whether they would involve substantially different areas of inquiry when compared to the original claim.   The EAT found that the Tribunal Judge had considered all of the relevant circumstances with the overarching consideration being the relative injustice and hardship in allowing or refusing the application.  Therefore, the EAT found that the Tribunal had not erred in exercising discretion.

The second issue related to the delay in bringing the amendment application.   This related to the fact that the amendment application was made in 2019 but was not heard until it was formally made in 2021.   The EAT found that the ‘delay’ between 2019 and 2021 was not considered as being a very significant factor and would not be sufficient to ground an appeal against the decision.

Practical Guidance for Employers:

This case has been a long-running saga relating to different areas of employment law and practice. This has now gone into the practice element relating to the procedural elements of the Tribunal overseeing the claims.  In this case, the EAT made it clear that there was no requirement for amendments to be classified into particular groups but rather they could be looked at generally before specifically examining the extent to which it fits into the overarching question of injustice or hardship in allowing or refusing the application.
https://assets.publishing.service.gov.uk/media/664220e9993111924d9d3345/Mr_James_Johnstone_and_Mrs_Christine_Johnstone_v_Glasgow_City_Council__2024__EAT_75.pdf

**NB This is the second running of this case. The first was the on the question of employment status. The Review of the first decision can be found here:
https://www.legal-island.com/articles/uk/case-law/2020/sep/glasgow-city-council-v-johnstone--anor-2020/

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Disclaimer The information in this article is provided as part of Legal Island's Employment Law Hub. We regret we are not able to respond to requests for specific legal or HR queries and recommend that professional advice is obtained before relying on information supplied anywhere within this article. This article is correct at 28/05/2024