LAW REPORT v 9 October 1996: Amendment of pay claim required hearing

Smith v Gwent District Health Authority and another; Davies v South Manchester DHA and another; Employment Appeal Tribunal (Mr Justice Mummery, Mr J. Shrigley, Mrs P. Turner) 1 August 1996

The question whether someone making a complaint under the Equal Pay Act 1970 should be allowed at a late stage to substitute a new male comparator for the one originally chosen was one that required an interlocutory hearing before the industrial tribunal.

The Employment Appeal Tribunal allowed appeals by Mary Smith and Sian Davies against the refusal of an industrial tribunal, without a hearing, to allow either of them to amend their equal pay complaints in order to substitute new male com- parators, and remitted the matter for reconsideration by another tribunal.

The appellants, who worked as speech therapists, had presented their claims in 1987. Ms Davies claimed she was doing work of equal value to a male hospital pharmacist, grade II, and that her salary should be increased in line with his. Ms Smith made a similar claim, naming as her comparator a principal pharmacist.

These cases, along with many hundreds of similar claims, then lay dormant to await the final result of the lead case of Enderby v Frenchay Health Authority (No 867/86). Nothing further was done in the instant cases until February 1996, when the appellants applied to amend their originating applications to substitute new male comparators. The tribunal chairman refused the application without holding the interlocutory hearing requested by the appellants' solicitor.

Dinah Rose and I. Mitchell (West Brow, Hampstead) for the appellants; Patrick Elias QC and Adrian Lynch (Treasury Solicitor) for the respondent authorities and the Secretary of State for Health.

Mr Justice Mummery said the Industrial Tribunals (Constitution and Rules of Procedure) Regulations 1993 did not contain any specific power to amend an originating application or notice of appearance. Tribunals did, however, have a power to regulate their own procedure: rule 13(1). That had been held to include the power to amend an application in order to change the basis of a claim and to add or substitute respondents. The rules did not lay down any time limit for making amendments.

That power must be exercised judicially, having regard to all the relevant circumstances of the case and, in particular, to the injustice or hardship which might be caused to any of the parties if the proposed amendment were allowed or refused. The general principles applicable to amendment in ordinary civil proceedings in the County Court and High Court were also relevant.

In the light of those principles, the tribunal chairman erred in law in refusing the amendment without an interlocutory hearing.

There was no obligation on a chairman to hold a hearing to deal with every application for leave to amend. The appropriate procedure depended on the nature of the amendment and the circumstances in which it was made. An uncontested application to correct a typing error would not require a hearing.

But if the refusal of the amendment meant the applicant's claim would certainly fail, as was conceded in these cases, the application was likely to be contested and was also likely to require closer examination of all the circumstances before a decision could be made.

In these cases, there were circumstances which required further examination and argument before a decision could be made. For example, why was the application made nine years after the proceedings commenced? The appellants wished to argue that it was because their cases had been stayed to await the result of the the various proceedings, including a reference from the Court of Appeal to the European Court of Justice, in the Enderby case. It was only once a preliminary point in that case had been resolved in December 1995 that the need for the amendment in these cases arose. There was no hardship or prejudice to the respondents in allowing the amendment, but that suffered by the appellants if it were refused was overwhelming.

The respondents contested these arguments. But their arguments should have been made to the industrial tribunal on the exercise of its discretion. They were not made because there was no hearing