THE INDUSTRIAL TRIBUNALS

         CASE REFS:	1248/11
1249/11

CLAIMANTS:		1.  John Gerard McCann
				2.  Jonathan McCann		

RESPONDENTS:		1.  Vector Facilities Management
				2.  Wallace Contracts (NI) Limited 

DECISION ON A PRE-HEARING REVIEW (FIRST DECISION ON LEAVE TO AMEND CLAIM FORM)

(A)	Each claimant is granted leave to amend his claim form so as to include a claim against the first named respondent in respect of alleged failures to comply with the information and consultation duty which is contained in Regulation 13 of the Transfer of Undertakings (Protection of Employment) Regulations and in Regulation 13 of the Service Provision Change Regulations.

(B)	Each claimant has also sought leave to amend his claim form so as to include a claim against the second named respondent in respect of alleged failures to comply with the information and consultation duties which are contained in Regulation 13 of TUPER and the SPCR.  I have deferred making any determination in respect of that application.  (See below).

Constitution of Tribunal:
Chairman (sitting alone):		Mr P Buggy	

Appearances:
The claimant was represented by Mr B Copeland.

The first named respondent was represented by Mr T Sheridan of Peninsula Business Services.

The second named respondent was represented by Mr C Hamill, Barrister-at-Law, instructed by Worthingtons Solicitors.

REASONS

1.	These proceedings have to be treated as being brought by reference both to the Transfer of Undertakings (Protection of Employment) Regulations (“TUPER”) and by reference to the Service Provision Change Regulations (“SPCR”).  In the context of the present proceedings, each relevant provision of TUPER has a counterpart in the SPCR, which is cast in practically identical terms.  Accordingly, any reference below to a provision of TUPER should be read, unless the context otherwise indicates, as also incorporating a reference to the corresponding provision of SPCR.  

2.	Subject to any arguments about the effects of “objection”, it appears to be common ground, among all the parties to these proceedings, that there was a relevant transfer (within the meaning of TUPER) of the entity to which each of these claimants was assigned immediately prior to the transfer.  It also seems to be agreed between the parties that, under the relevant transfer, the first named respondent (“Vector”) was the transferor and that the second named respondent (“Wallace”) was the transferee.  

3.	Immediately after the transfer, each of the claimants ceased to be employed in the transferred entity.  

4.	In these proceedings, in their claim forms, each of the claimants made claims of unfair dismissal, arising out of those terminations of their contracts of employment.

5.  	Initially, the claims were made only against Vector.  Wallace was subsequently joined as a respondent to those claims of unfair dismissal.  

6.	Regulation 13 of TUPER imposes obligations to inform and consult.  Regulation 15 of TUPER provides a remedy, by way of complaint to an industrial tribunal, in respect of any failure to comply with the Regulation 13 information and consultation duties.

7.	Regulation 15(12) of TUPER provides that an industrial tribunal cannot consider a Regulation 15(1) complaint unless:

	(1)	It is presented to the tribunal before the end of the period of three months beginning with the date of the relevant transfer, or

	(2)	within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of the period of three months.  

8.	In the claim forms as originally presented, no complaint was made pursuant to Regulation 15.  Each claimant now seeks leave to amend his claim form so as to include a claim under Regulation 15 (both of TUPER and of SPCR), against both Vector and against Wallace.  Each claimant, in relation to each proposed Regulation 15 claim, against both Vector and Wallace, requires leave of the tribunal to amend, so as to include those claims.  

9.	In each instance, the application to amend is not opposed by Vector, but it is opposed by Wallace.
10.	I have decided to defer arriving at a determination in respect of the application for leave to add Regulation 15 claims against Wallace, against the following background and for the following reasons.  

11.	First, it seems to be strongly arguable that Wallace has joint and several liability in respect of any failure on the part of Vector to comply with its Regulation 13 duties.  (See Regulation 15(9) of TUPER and of SPCR).  Accordingly, a refusal to grant leave to add Regulation 15 claims against Wallace may arguably have no practical effect upon the claimants.  

12.	Secondly, it seems to me to be strongly arguable that a transferee is not itself subject to any Regulation 13 duties in respect of those employees who were not employed by the transferee prior to the transfer.

13.	I note that the Regulation 13 duties apply only in relation to “affected employees”.  I note also that those duties arise prior to the contemplated relevant transfer.  Furthermore, I note that it is arguable the duties apply only to the person who is the employer, of those affected employees, at the time that the information and consultation duties are triggered.  (See Regulation 13(2) of TUPER).

14.	In light of the observations set out above, Mr Copeland may wish to reconsider whether he wishes to continue with his application for leave to amend so as to include Regulation 15 claims against Wallace.  If, upon such reconsideration, he does decide to pursue such claims, I will arrive at a determination in respect of the relevant applications for leave to amend, during the course of the hearing which has already been scheduled to take place on 11 January 2012.  

15.	I have decided to grant leave to each claimant to amend his claim form so as to include Regulation 15 claims against Vector.  I have made those decisions against the following background and for the following reasons.  

16.	On behalf of Vector, Mr Sheridan did not oppose the granting of leave to amend the claims so as to include Regulation 15 claims against Vector.  However, because Wallace would potentially be jointly and severally liable in respect of any compensation payable pursuant to those claims, I have not treated Mr Sheridan’s consent as being determinative.  

17.	For the same reason, I have construed Mr Hamill’s arguments (on behalf of Wallace), against granting leave to amend the claim form so as to include Regulation 15 claims against Wallace, as arguments also against the grant of leave so as to include Regulation 15 claims against Vector.  

18.	Those arguments can be summarised as follows.

19.	First, Mr Hamill argued that Regulation 15 claims against Wallace should not be entertained because they have been made late in the day and, had it not been for those potential claims, there would be no good reason for Wallace not to be disjoined from the proceedings.  (This argument is premised on the assumption that the claim of unfair dismissal against Wallace is unsustainable; however, of course, that argument has not yet been the subject of any determination.  In any event, I do not consider that the question of whether the unfair dismissal claims are sustainable has any implications within the context of these amendment applications).  
20.	Secondly, Mr Hamill argued that the Regulation 15 claims were first being raised more than three months after the date of the relevant transfer; it would have been reasonably practicable for them to have been raised within three months of the relevant transfer; accordingly, for that reason alone, the Regulation 15 claims should not be allowed to proceed.  

21.	I have no hesitation in rejecting the latter argument.  In my view, the correct legal position is set out in the commentary in “Harvey on Industrial Relations and Employment Law”, at paragraph 31 2.07 of Division P1:

	“Although the decisions in the above cases seem to suggest that, where an entirely new claim is being advanced by way of amendment, the critical question is whether it is in time and, if not, whether an extension should be granted under the statutory “escape clause” relevant to that claim, other divisions of the EAT have held that, even in the case of an entirely new claim made out of time, there is a residual discretion to allow the amendment to be made on the basis of the hardship/injustice criteria mentioned in [Selkent Bus Co Ltd v Moore [1996] IRLR 661], and in British Newspaper Printing Corpn (North) Ltd v Kelly [1989] IRLR 222,  … , rather than on the statutory basis. … According to Underhill J in the Safeway case, “the position on the authorities is that an employment tribunal has the discretion in any case to allow an amendment which introduces a new claim out of time” (para 7), though he did add: “No doubt the greater the difference between the factual and legal issues raised by the new claim and by the old the less likely it is that it will be permitted, but that will be a discretionary consideration and not a rule of law” (para 13).”

22.	According to the Selkent principles, I have to exercise my discretion having regard to all the circumstances of the case and, in particular, I must consider any injustice or hardship which may be caused, to any of the parties, if the proposed amendment is allowed or refused.  

23.	In my view, in all the circumstances of this case, a refusal of leave to amend the claim form so as to include the Regulation 15 claims (against Vector) would cause greater prejudice and hardship to the claimants than would be caused (to Wallace) by allowing the amendments. 

24.	In arriving at that conclusion, I have taken account, in particular, of the following factors. 

25.	As Mr Hamill frankly conceded, the ability of Wallace to effectively contest these claims has not been diminished by the delay in making these claims.  Secondly, the delay in making these new claims was relatively short.  Thirdly, I note that the claim forms  already include assertions about an alleged lack of consultation.

26.	In granting leave to make the relevant amendments, I made the following assumptions.  First, I assumed (without deciding) that it would have been reasonably practicable to make the new claims within the period of three months beginning with the date of the relevant transfer.  Secondly, I assumed (again without deciding) that the proposed new claims are category (iii) amendments (in the sense 

	in which category (iii) amendments are referred to in the commentary in “Harvey” at paragraphs 311-312.07 of Division P1 of Harvey).  

Chairman:

Date and place of hearing:  9 December 2011, Belfast.		

Date decision recorded in register and issued to parties: