Mr M McKelvie v Represented by: Ms K MacColl Advocate Mitie Technical Facilities Management Limited and 1 other — 2019

At a preliminary hearing on 25 January 2019, Employment Judge Shona MacLean considered the claimant's application to amend his claim and the second respondent's application for a deposit order. The claimant had originally presented claims described as redundancy payment, holiday pay, notice pay and a complaint that the TUPE contract was not fulfilled. The amendment application sought to add a regulation 15 TUPE complaint about alleged failure to inform and consult, and the respondents opposed it on time-bar, specification and prejudice grounds.

Applying rule 29, the overriding objective and a balancing exercise of hardship and injustice, the tribunal allowed the amendment but only under deletion of paragraphs 17 and 19 of the Particulars of Complaint. The judge noted that the claimant had initially been unrepresented, had obtained some legal advice, and had made the application late, but she considered the case had not yet reached final hearing and that refusing the amendment would prevent him advancing the claim in its original form.

On the deposit order application under rule 39, the second respondent sought a deposit of no more than £1,000 and later suggested a figure of around £50 to £100. The tribunal was not satisfied that it could conclude at that stage that the claim against the second respondent had little reasonable prospect of success, so the application was refused.