Out of time particulars
Labour & European Law Review Weekly Issue 523 07 June 2017
In claims of unlawful deductions of wages (such as unpaid holiday pay), claimants can apply to amend their original applications in certain circumstances. In Amey Services Ltd & Enterprise Managed Services Ltd v Aldridge and ors, the Employment Appeal Tribunal (EAT) held that amendments are not allowed if the tribunal judge has not assessed whether they are out of time or not.
The claimants’ union, Unite, instructed Thompsons to act on their behalf.
The claimants alleged that they were entitled to an enhanced rate for holidays on the basis that their employer had failed to pay them overtime and other elements of pay additional to their basic rate. However, their claims were suspended pending the outcome of Lock v British Gas Trading Limited (weekly LELR 497) and Fulton and ors v Bear Scotland Limited (weekly LELR 397).
The claimants then applied to amend their claims to include deductions and underpayments in respect of holidays that they had taken during the periods of amendment. However, they did not specify particular dates, and some of the amendments appeared to be time barred.
The employer argued that the amended claims were not properly formulated or sufficiently particularised with the result that they could not understand the case they were required to meet.
Although the employment judge regarded the issue of the time bar “as of relevance in the ultimate determination of the applications to amend”, he concluded that it was “both appropriate and open to me to allow the amendments subject to time bar in the particular circumstances of these cases”.
Overturning the judge’s decision, the EAT said that he was wrong to separate the issue of the time bar from the decision on whether or not to allow the amendment on the basis that this was a “single stage exercise”.
Although judges have the discretion to grant (or refuse) amendments taking into account injustices and hardship that might otherwise result to either party, the EAT held that the employment judge in this case had misunderstood the legal position in relation to the time bar which he seemed to have regarded “as some sort of tentative conclusion, to be revisited later”. He should instead have decided, as part of the overall hardship test whether or not the amendments sought to introduce time barred claims. As he had failed to do that, his decision could not stand.
According to the EAT, there were other options open to the judge. For instance, he could have deferred his decision on the amendments until the legal issues were resolved or he could have required the claims to better particularise the terms of the amendments. What he was not entitled to do was to allow the amendments at the same time as deferring the timebar issue.
Although it could be argued that it was inconsistent to allow amendments at the same time as requiring them to be further particularised, this approach could be justified if an outright refusal of the amendments would lead to undue hardship. As such, there was no reason in principle why adjustment of the proposed terms of the amendments could not take place prior to the decision on whether the amendments themselves should be allowed. The focus of the arguments might then be on the time frame in which the proposed amendments should be allowed but those arguments would take place before the single stage decision on the granting or refusal of the amendment itself.
This case exposes an administrative tension at the heart of many courts and tribunals. On the one hand, there is the need to stay (or sist) cases while awaiting imminent appellate authority on a relevant point of law. On the other, there is the pressure on the court to hit targets in relation to reducing case durations. In this case, the Scottish tribunal got the balance wrong. It decided these amendments in order to demonstrate that some progress was being made with the 20000 holiday pay claims in the Scottish tribunal system. However, these conditional decisions were not asked for by the claimants; nor, as the EAT now confirms, were they validly determined. The tribunal should simply have let the amendment applications sit on the table to be determined at a later date once the relevant appeals had run their course and the question of time bar could be properly addressed. As a result of the decision in Aldridge, that is what will now happen. The case shows that the pressure to hit simplistic administrative targets is often incompatible with fair and effective case management.