Those familiar with Tribunal practice and procedure will be well aware that it is not uncommon for Claimants to seek to add to, or amend their claim over the lifetime of the proceedings as further information and discovery becomes available. In this month’s article we consider the Tribunal’s approach and relevant considerations in these circumstances following the recent Court of Appeal decision in Bryant v Nestlé UK Limited [2021] NICA 34 (04 June 2021).

The Facts

This case concerns Ms Bryant who brought proceedings in the Industrial Tribunal against her former employer, Nestlé UK Limited, in which she complained that she had been unfairly dismissed on the grounds of redundancy on 28 July 2019.  Ms Bryant issued proceedings in the Tribunal on 23 October 2019.

On 1 July 2020 Ms Bryant, having received discovery from the Respondent, stated for the first time in Replies to the Respondent’s Notice for Further and Better Particulars that she believed the termination of her employment had been unlawful on the grounds of age discrimination. By application dated 11 August 2020 the Claimant sought to amend her claim to include an additional case of age discrimination. Following a hearing on 9 November 2020 the Tribunal refused the Claimant’s application concluding that “she deliberately decided to ignore the time limit and to decline to properly and fully set out her actual claim until she decided it was opportune to do so”.  Ms Bryant appealed this decision to the Court of Appeal.

Decision

Within its decision the Court of Appeal confirmed that the power to grant leave to amend a claim is found under Rule 25 of the Industrial Tribunal and Fair Employment Tribunal (Constitution on Rules of Procedure) Regulations (Northern Ireland) 2020.  The Court further agreed that the Tribunal was correct to give due regard to the decision in Selkent Bus Company v Moore (1996) ICR836 which provides:

“Whenever the discretion to grant an amendment is involved, the Tribunal should take into account all the circumstances and should balance the injustice and hardship of allowing the amendment against the injustice and hardship of refusing it.”

The Court confirmed that a Tribunal should examine whether the amendment sought was a mere relabelling of facts or whether it constituted a wholly new claim referring to the decision in Abecrombie & Ors v Aga Rangemaster Limited (2013) EWCACIV.148 and its guidance:

“…in cases where the effect of a proposed amendment is simply to put a different legal label on facts which are already pleaded, permission will normally be granted:.. Where the new claim is wholly different from the claim originally pleaded the claimant should not, absent perhaps some very special circumstances, be permitted to circumvent the statutory time limits by introducing it by way of amendment.”

In this case the Court of Appeal agreed with the Tribunals’ conclusions that Ms Bryant’s proposed amendment to include a claim for age discrimination amounted to a new claim.

In finding that the Tribunal’s decision was “unsustainable”, the Court however concluded that a number of its determinations were not supported by findings of fact or the evidence available. The Court commented that “The thrust of the Appellant’s case to the Tribunal was that prior to receiving discovery from the Respondent on 27 June 2020 she had a mere suspicion that she had been the victim of age discrimination. The basis of the Tribunal’s determination that the Appellant had a “belief” rather than a mere ‘suspicion’ that she was the victim of age discrimination is unspecified”

In finding for the Appellant (Ms Bryant) the Court reversed the Tribunal’s decision and permitted the application by the Claimant to add a claim for age discrimination.

Comment

This decision provides a useful reminder of the relevant considerations for a Tribunal when faced with an application to add to or amend an existing claim. As outlined in the Selkent  decision referred to above, when considering such applications a Tribunal is required to consider the hardship of allowing the amendments against the injustice and hardship of refusing it. It is notable in this regard that, as part of its conclusions the Court found that no evidence had been adduced by the Respondent to support findings that it would be prejudiced by permitting the Claimant’s application.

It remains to be seen whether this decision will cause the Industrial Tribunal in Northern Ireland to adopt a more liberal approach when considering applications of this nature in the future.