Amending Claims in the Employment Tribunal: Procedural Considerations

The Employment Tribunal has the power to allow Claimants in the Employment Tribunal to amend their claims. This power is exercised as a judicial discretion, taking into account all the relevant circumstances, including relevance, reason, justice and fairness.

Adding Respondents to Claims - Further Early Conciliation?
Until recently, it was not clear whether amending a claim would result in the parties needing to participate in the process of ACAS Early Conciliation again. However, the Employment Appeal Tribunal in the case of Science Warehouse Ltd v Mills 2015 held that a claimant was not required to re-start ACAS Early Conciliation when amending a claim, as each case should be broadly treated as one "matter".

Will claims be struck out for administrative errors?
If the name of the respondent on the claim form is not the same as the name of the prospective respondent on the Early Conciliation Certificate, a claim will be rejected by the Tribunal, unless the judge considers that the Claimant made a minor error in relation to a name or address, and that it would not be in the interests of justice to reject the claim.

The Tribunal also has the power (on its own initiative or on the application of a party) to add any person as a party to proceedings.

However, in the case of Mist v Derby Community Health Services NHS Trust 2015, the Claimant had referred to the second respondent throughout the ET1 but failed to name them as a respondent on the form. The EAT overturned the decision to strike out the claim on this basis, commenting that the particulars to the ET1 did everything to involve the second respondent, save for actually adding them as respondent.

Although it would be prudent of a respondent to seek to have claims struck out on the basis of such errors, this case demonstrates that the Tribunal are likely to allow proceedings to continue on the basis of justice and fairness.

Commentary
These recent tribunal decisions demonstrate the common sense approach taken by Tribunals when exercising their powers of discretion. The EAT also appears to be willing to grant Claimants some flexibility in complying with the requirements of the Early Conciliation process. This is certainly something for Respondents to be aware of when applying to strike out claims against prospective Claimants due to errors such as incorrectly naming the responding party.

Claimants should also be mindful that this power remains at the discretion of the Judge, and care should be taken to name the correct parties in the first instance, rather than relying on the precedent set by this case.

This article has been jointly written by Charles Pallot and Wonnacott.