The Employment Appeal Tribunal (EAT) has held in Pontoon (Europe) Ltd v Shinh and Anor that, when considering whether to allow an amendment to a claim, tribunals have to take all the circumstances into account. Although some of these were set out in the earlier case of Selkent, the EAT made clear in that case that they were not exhaustive.
Mr Shinh’s company, Global Sourcing Company International Ltd, entered into a contract with Pontoon Europe Ltd which was part of the Adecco Group to provide services to the National Grid from the end of September 2016 to the end of January 2017. However, National Grid asked him to leave its premises on 1 November 2016 allegedly because of his poor timekeeping and his rude and aggressive attitude.
Mr Shinh submitted a tribunal claim in February 2017 against National Grid arguing that, as a worker, he had been dismissed for making protected disclosures about poor security for the launch of its new smart meter rollout. A few months later, he submitted an amended statement which included Pontoon/Adecco Group as a second respondent to that termination claim. He also sought permission to add a new claim against National Grid and Pontoon to the effect that he had been blacklisted by all the companies in the group and was therefore entitled to damages.
Pontoon resisted the amendments on the basis that Mr Shinh had added a “new and substantial cause of action” which was out of time.
While accepting that the amendment to include Pontoon in his termination claim was out of time, the tribunal held that the injustice to Mr Shinh would far outweigh any hardship to Pontoon and it would therefore extend the time to submit it.
In addition, it agreed to allow the blacklisting claim to be added as a cause of action because it had not been reasonably practicable for Mr Shinh to file proceedings by the time limit of 10 April and he did not delay unreasonably thereafter. In any event, it held that even if the blacklisting claim was out of time it would have allowed Mr Shinh to add it, on the basis that it would not cause any hardship to Pontoon.
Pontoon appealed arguing, among other things, that the tribunal was wrong to allow the blacklisting claim to be added without referring to the matters set out in Selkent Bus Company Ltd v Moore.
Although there is no specific provision in the Employment Tribunal Rules of Procedure 2013 governing amendments, the EAT noted that tribunals are required by Rule 2 to deal with cases fairly and justly. In relation to adding parties to a claim, rule 34 states that tribunals can add (or remove) anyone if it is in the interests of justice to do so.
In relation to amendments generally, the EAT in Selkent said that tribunals should take all the circumstances into account while balancing the injustice and hardship of allowing the amendment against the injustice and hardship of refusing it. Although it was impossible to list them exhaustively, these included: the nature of the amendment, the applicability of time limits; and the timing and manner of the application.
In this case, the EAT held that the tribunal had carried out the necessary exercise when balancing the injustice and hardship of allowing the amendments against the injustice and hardship of refusing them. Although the tribunal did not expressly state the potential prejudice to Mr Shinh if his application was refused, it was obvious that it would involve him forgoing a claim that had merit.
It therefore dismissed the appeal.