Appeal No. EAT/337/01

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 23 March 2001

Before
HIS HONOUR JUDGE PETER CLARK
MRS A GALLICO
MR P R A JACQUES CBE

EWINGS & CO SOLICITORS 	APPELLANT

ZOE PASSFIELD	RESPONDENT

Transcript of Proceedings

JUDGMENT

INTERLOCUTORY HEARING

Revised

	APPEARANCES

For the Appellant	MR M DULOVIC
(of Counsel)
Instructed by:
Ewings & Co
148 High Street
Penge 
London SE20 7EU	
For the Respondent	MISS C BRYAN 
(of Counsel)
Instructed by:
Argles Stoneham Burstows
Stoneham House
17 Scarbrook Road
Croydon
Surrey
CRO 1SQ

JUDGE PETER CLARK

1	This case is currently proceeding in the London South Employment Tribunal.  The Applicant, Ms Zoe Passfield, is a qualified solicitor.  She was employed by the Respondent firm of solicitors on 2 February 2000 until her resignation effective on 22 September 2000.  

2	On 6 November 2000 she presented an Originating Application, in time, against the Respondent, complaining of breach of the Equal Pay Act and unlawful sex discrimination contrary to the Sex Discrimination Act 1975.  She gave detailed particulars of what she characterised as Instances of Discrimination.  They totalled eleven in all.  

3	On 4 December 2000 the Respondent entered their Notice of Appearance.  That also condescends to detailed particulars of the history of the Applicant’s short employment with the firm.  

4	On 21 December 2000 the primary limitation period for claims of, among other things, breach of contract and unlawful deduction from wages, expired. 

5	On 14 February 2001 the Applicant made application by letter for permission to amend her Originating Application to add claims of breach of contract and a claim of unlawful deductions, that in the sum of £122, out of time.  She gives particulars of five complaints of breach of contract, the last including in the alternative, the unlawful deductions claim.  

6	That application was opposed by the Respondent by letter dated 17 February, the point being taken, as the Applicant had conceded, that the claim was out of time.  

7	On 7 March a Chairman, Mr D Milton, allowed the amendment sought.  In making that Order he gave his reasons as follows:
“A Chairman of the Tribunals (Mr D Milton) has considered the file and recent correspondence.  He grants leave to the Applicant to amend as asked.  The question of the Applicant’s contractual rights would inevitably have to be investigated in the existing proceedings.  The amendment does indeed raise new matters but the Respondent has ample time to meet the allegations.”

8	By letter dated 19 March the Respondent invited the Chairman to revoke that Order.  Yesterday, he declined to do so.  Accordingly, today the Respondent pursues this appeal commenced by a Notice dated 22 March 2001 against the original Chairman’s Order of 7 March, repeated yesterday.  The case is listed for a full merits hearing beginning on Monday 26 March for two days.  

9	Applications to amend an Originating Application fall into three categories:

i)  amendments which are merely designed to alter the basis of an existing claim, but without purporting to raise a new distinct head of complaint;
ii)  amendments which add or substitute a new cause of action but one which is linked to, or arises out of the same facts as, the original claim;
iii)  amendments which add or substitute a wholly new claim or cause of action which is not connected to the original claim at all. 

10	The real question in this appeal is whether the amendment falls into category ii) or iii).  Having been taken to the factual basis for the five heads of breach of contract contained in the amended Particulars of Claim and compared that with the factual allegations raised in the Originating Application, we are persuaded by Miss Bryan that this is a Category 2 case.  We reject Mr Dulovic’s submission that it properly falls into Category 3.  

11	That being so we are satisfied that it was within the legitimate exercise of the Chairman’s discretion to permit the amendment, bearing in mind the guidance given by Mr Justice Mummery in Selkent v Moore [1996] IRLR 661.  

12	Specifically, we think that he was entitled to conclude that the balance of prejudice as between the parties favoured granting the amendment.  The Respondent was not taken by surprise factually: they had time to prepare for the hearing on the amended additional grounds of complaint.  The new claims involved additional labelling of the original complaints. The question of time limits, highly material in Category 3 cases, see Housing Corporation v Bryant [1999] ICR 123 does not, in our judgment, prevent this Category 2 amendment being properly allowed.  

13	In these circumstances, we shall dismiss this appeal.