Employment Law Advocates

It is common in Employment Tribunals for there to be an application to substitute one respondent for another, most frequently because of a mistake, but it is unusual for a tribunal to be asked to substitute the name of a claimant. These are the facts of Enterprise Liverpool v Edwards, a recent decision of the Employment Appeal Tribunal. The situation arose because a claim for failure to consult about a TUPE transfer can only be brought by an individual employee if no union or other employee representative has standing to bring the claim. The claimants issued proceedings when they should have been issued by the union and then sought to have the union added as a party in their place. This was yet another set of circumstances which, regrettably, had not been anticipated by the drafters of the Employment Tribunal Rules, which expressly allow for the addition of respondents but not the addition of claimants.

It was held that the tribunal had been correct to allow the amendment and there was further judicial endorsement of the¬†judgment in TGWU v Safeway, a¬†decision which Judge Peter Clark described as “surprisingly not yet reported,” a surprise that will doubtless be shared by many practioners,¬†given its¬†obvious importance and¬†the repeated¬†approval¬†of the Employment Appeal Tribunal. Its classification of amendments makes it much clearer when it is¬†not appropriate to take the three month time limit into account, making it easier to obtain amendments that amount to a simple relabelling.¬†As employment law becomes more complex¬†and pleadings are¬†regarded as increasingly important, a sensible approach to amendments is the only way to make things fair for parties who cannot afford expensive lawyers.