Amending time

TGWU v Safeway Stores Ltd

When making claims under section 188 of the 1992 Trade Union and Labour Relations (Consolidation) Act (TULRCA) and regulation 10 of TUPE (the law relating to transfers), certain time limits normally apply.

In TGWU v Safeway Stores Ltd, the Employment Appeal Tribunal (EAT) said that claimants can amend their claim form, even if it is out of time, as long as it relates to facts that have already been alleged.

The TGWU (now Unite) instructed Thompsons to act on its behalf.

Basic facts

Following its acquisition by Wm Morrison Supermarkets, Safeway closed down a depot in Bristol leading to 600 redundancies. In April 2006 claims for unfair and wrongful dismissal were lodged on behalf of the union’s members.

The application claimed that Safeway had failed to consult with the union about the dismissals, but framed the allegation as a breach of the procedural requirements for redundancy, not as a statutory breach of TULRCA.

At a case management discussion in June 2006, the tribunal chair asked why the union was named on the application form. When the union explained that it was making a claim under section 189 of TULRCA and regulation 11 of TUPE, the chair said it would have to amend the form to incorporate any claims it was making in its own right.

Safeway then objected to the amendment on the basis that it had not previously been raised and the union was now out of time. A different tribunal chair agreed, saying that the union was not really amending the original claim form, but adding a new “cause of action”. The union appealed.

Relevant law

Section 189 of TULRCA says that

An employment tribunal will not consider a complaint under this section unless it is presented:

• before the date on which the last of the dismissals to which it relates takes effect, or
• during the period of three months beginning with that date, or
• if it was not reasonably practical to present the complaint within three months, then within whatever time period the tribunal thinks is reasonable

The time limit for complaints of breach of the obligations under TUPE is the same, except that regulation 11 says that the three months run from the date on which the relevant transfer was completed.

Error of law

Relying heavily on the so-called Cocking test (from the case of Cocking v Sandhurst (Stationers) Ltd), the EAT said that the tribunal made an error of law because it did not “have regard to all the circumstances of the case.”

Nor did it “consider any injustice or hardship which may be caused to any of the parties … if the proposed amendment were allowed, or as the case may be, refused.” Instead the chair just looked at whether the union’s claim was a “re-labelling” of its original claim or not.

It also criticised the tribunal chair for ignoring the case of British Newspaper Printing Corporation (North) Ltd v Kelly, in which Lord Donaldson made clear that although Parliament had laid down rules for lodging applications, it did not mention anything about time limits for amending existing applications.

Proposed amendment

The EAT allowed the union’s amendment on the basis that there would be a “greater injustice to … the employees … if the amendment is refused than there will be to Safeway if it is allowed.”

It said that the most important point was not whether the amendment amounted to a “re-labelling” of the original claim, but whether the claim for breach of the consultation obligations depended on facts that had already been alleged.

It was obvious that the union intended to make such a claim (as it was named on the form), and it was one that would have been expected by Safeway. As the amendment was made quickly, the company could not claim “any particular prejudice”.