Selkent Bus Company Ltd v Moore
Selkent Bus Company Ltd v Moore [1996] I.C.R. 836
Facts
The applicant, Mr. Michael Moore, presented an originating application to the Industrial Tribunal on December 1, 1995. His initial complaint was for "unfair dismissal" on the ground of misconduct, specifically that the company created distrust, unfairly accused him of coercing/intimidating behaviour regarding overtime, and dismissed him despite 22 years of service with no prior disciplinaries. This initial complaint did not mention trade union membership or activities. The employers, Stagecoach Selkent, admitted the dismissal and contended it was for a "conduct" reason, related to intimidating other mechanics about voluntary overtime.
On January 30, 1996, the applicant applied to amend his originating application. The proposed amendment sought to add a claim that his dismissal was on grounds relating to trade union membership or activities, making it automatically unfair under section 152 of the Trade Union and Labour Relations (Consolidation) Act 1992. The amendment stated his dismissal was due to his involvement in pay negotiations or belief of involvement in an overtime ban. The application to amend was made after the three-month time limit for an unfair dismissal claim had expired, as his dismissal was on October 20, 1995, and the time limit would have ended on January 20, 1996. An industrial tribunal chairman granted the amendment on February 6, 1996, before receiving written objections from the employers. The employers subsequently objected, arguing it was a new claim based on additional facts, out of time, and that natural justice was breached as they were not heard.
Held
The Employment Appeal Tribunal (EAT) allowed the employer's appeal and refused leave to amend the originating application. The EAT found that the proposed amendment pleaded new primary facts that had not been previously alleged, in support of a new case of automatically unfair dismissal for trade union reasons. No explanation was provided as to why these facts, which must have been within the applicant's knowledge, were not included in the original application.
Refusing the amendment would not cause hardship to the applicant, as his original, valid, and in-time unfair dismissal claim could still proceed to a hearing. He could still win his original case. On balance, the risk of hardship was greater if the amendment was granted, due to the foreseeable need for adjournments, increased unrecoverable costs, and potentially added length to the hearing without guaranteeing additional benefit to the applicant. The EAT clarified that a tribunal chairman granting an amendment ex parte (without hearing the other side) should subsequently consider any objections raised.
Comment
Selkent v Moore is considered one of two key cases that established the factors an Employment Tribunal (ET) should consider when faced with an application to amend a claim or response.
The case held that when considering an amendment, a tribunal must perform a careful balancing exercise of all relevant circumstances, exercising its discretion in a way that aligns with "relevance, reason, justice and fairness". The EAT identified three "Selkent factors" that are crucial to this balancing exercise:
The nature of the amendment - Distinguishing between minor corrections (like typographical errors or adding factual details) and substantial alterations that introduce an entirely new cause of action.
The applicability of time limits - If a new complaint is proposed, it is essential for the tribunal to consider whether it is out of time and if the time limit should be extended.
The timing and manner of the application - While there are no strict time limits for making amendments, the extent of any delay is a discretionary factor, and an explanation for the delay is relevant. These "Selkent factors" are not exhaustive and are not to be treated as a tick-box checklist. They are considerations for the fundamental balancing exercise.
The Test
The core test remains the balance of injustice and hardship that may be caused to any of the parties by either allowing or refusing the proposed amendment. This requires parties to provide submissions on the practical consequences of granting or refusing the amendment.
Subsequent case law, such as Kuznetsov v Royal Bank of Scotland and MacFarlane v Commissioner of Police of the Metropolis, has reiterated that Selkent remains a clear guide, emphasizing the need to take into account all circumstances and balance the injustice and hardship.
The case also highlights the importance of clear and accurate pleadings in the tribunal.
While Selkent stated it was "essential" to consider time limits, later EAT decisions like Galilee v Commissioner of Police of the Metropolis have offered a different view, suggesting it's not always mandatory to resolve time points at the amendment application stage, especially if significant evidence is required. However, there is conflicting authority on this point.
