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Issue 18 (January 1998)
Fixed term contracts - more confusion
It's not just what you do, it's the way that you do itEAT defines what amounts to sexual harassment
Bringing human rights to the workplace
Enforcing the minimum wage
Amending tribunal applications Ashworth Hospital Authority v H J L Liebling EAT/1436/96 (unreported)
Amendment of an Industrial Tribunal application form can be of crucial importance to an Applicant, and hopefully the rules concerning such amendments have been clarified by the EAT in Ashford Hospital Authority v Liebling.
Ms Liebling resigned from her employment at Ashworth in March 1996 and claimed that she was constructively and unfairly dismissed. More than three months later an application was made to amend the IT1 to include an allegation of sexual discrimination.
The Industrial Tribunal allowed the application, basing the decision upon the principles derived from Cocking v Sandhurst [1974] ICR 650. The Tribunal considered all of the circumstances and the decision reflected an exercise of their general discretion in this area.
The employer lodged an appeal and the EAT was required to consider how discretion should be exercised, particularly when the amendment added a fresh claim. The EAT indicated that the case of Selkent Bus Co. Limited v Moore [1996] ICR 836 was now of more assistance than the decision in Cocking v Sandhurst. The EAT further stated that the general and only principle derived from the authorities is that:
"Whenever the discretion to grant an amendment is invoked, 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 EAT stressed that Industrial Tribunals have a wide discretion in these matters, and drawing assistance from the Supreme Court Practice the EAT directed that amendments ought to be made "for the purpose of determining the real question in controversy between the parties to any proceedings or of correcting any defect or error in any proceedings". When as in this case a new claim was being advanced, this was a factor to be considered by Tribunals in exercising discretion. In this regard it would also be relevant if the cause of action arises out of the same facts as those in respect of which relief had already been claimed in the action.
In a sex discrimination claim, an application would be accepted by a Tribunal out of time if it was just and equitable to do so. The EAT indicated that these words provide a wide discretion and that Tribunals should apply concepts of justice and fairness. There was little difference between a situation in which it was just and equitable to extend time and a case where an amendment should be made in the interests of justice. The EAT therefore upheld the decision of the Industrial Tribunal. The case of Liebling provides helpful analysis of the general discretion to amend applications, but also the position when an amendment adds a new cause of action. Sometimes IT1 forms are lodged with only the briefest particulars, and more information can result in the need to broaden cases later and perhaps outside of the time limit.
It is encouraging that both the Industrial Tribunal and the EAT were prepared to view the questions arising in a manner consistent with the interests of justice and not simply the strict rules. The decision though affirms the wide discretion of the Industrial Tribunal, and best practice dictates that amendments and/or adding new claims should be avoided if possible.