Amendments: an introduction
The Employment Tribunal Procedure Rules 2024 set out their overriding objective at rule 3(1), namely to deal with cases fairly and justly, and require that tribunals must give effect to that objective when exercising any powers under the Rules (rule 3(3)(a)).
What is now Rule 30 allows tribunals to make case management orders, and what is now rule 41 allows tribunals to regulate their own procedure.
Amendment applications have to be decided with regard to the above.
It is well known that Selkent Bus Co v Moore [1996] IRLR 661 sets out certain principles:
- 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.
- What are the relevant circumstances? It is impossible and undesirable to attempt to list them exhaustively, but the following are certainly relevant:
- The nature of the amendment [among other things is it presaged in the claim form?]
- The applicability of time limits
- The timing and manner of the application
Recent appellate authorities caution, sometimes robustly, against using Selkent as a checklist.
Vaughan v Modality Partnership [2021] IRLR 97 clarifies that the core test is the balancing exercise of injustice and hardship to each party and Selkent is not a checklist, and it is best to consider the “real practical consequences of allowing or refusing the amendment. I the application to amend is refused how severe will the consequences be, in terms of prospects of success… ; if permitted what will be the practical problems in responding?”
