Mathews v Nortel Networks UK Ltd (in adm... Nortel Networks UK Ltd (in adm... Avaya Ltd Nortel Networks UK Ltd (in adm...

Factual and Procedural Background

This opinion concerns three lead cases involving claimants who were formerly employed by Company A (Nortel Networks UK Ltd, in administration) and who bring claims following their dismissal in 2009. The claimants seek to amend their claims to include additional respondents—Company B (Avaya Ltd), Company C (Genband Ltd), and Company D (Ciena Ltd)—on the basis that parts of Company A’s Northern Ireland business were transferred to these companies after the dismissals.

Company A entered administration in January 2009, as part of a global insolvency process involving coordinated filings in multiple jurisdictions. During 2009, Company A made redundancies at its Northern Ireland premises, affecting numerous employees who subsequently brought employment tribunal claims mainly concerning unfair dismissal.

The claimants’ original claims were directed solely against Company A. They now seek to add claims against the transferee companies on the basis that dismissals were automatically unfair under Regulation 7 of the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPER), as applied to Northern Ireland, because the dismissals were connected to planned business transfers.

The applications for joinder and amendment were considered at a Pre-Hearing Review (PHR) before Employment Judge Buggy, with hearings held over multiple days in 2013 and 2014. The administrators of Company A did not participate in the PHR, citing costs reasons.

Legal Issues Presented

1. Whether the joinder of Company B (Avaya Ltd) as a respondent in the Snoddy case should be set aside.
2. Whether the application to join Company C (Genband Ltd) as a respondent in the Mathews case should be granted or refused.
3. Whether the application to join Company D (Ciena Ltd) as a respondent in the Firth case should be granted or refused.
4. Whether the claimants should be granted leave to amend their claim forms to include new claims of automatically unfair dismissal pursuant to Regulation 7 of TUPER against the transferee companies.
5. Whether the proposed new claims fall within the relevant statutory time limits or whether an extension of time should be granted in the exercise of the tribunal’s discretion.

Arguments of the Parties

Claimants' Arguments

• The dismissals of the claimants were connected to planned transfers of parts of Company A’s Northern Ireland business to Companies B, C, and D.
• Under Regulation 7 of TUPER, dismissals linked to such transfers are automatically unfair if the sole or principal reason is the transfer or a non-economic, technical, or organisational reason connected to it.
• The claimants were unaware of the possibility to bring claims against the transferee companies until early 2013, following a successful amendment application by a third party in England.
• The delay in seeking to amend claims was due to genuine and reasonable ignorance of their legal entitlements in a complex area of law.
• The purpose of joinder is to enable claims that the dismissals were automatically unfair because they were made to facilitate the transfers.

Respondents' Arguments

• The delay in bringing the new claims, which was over three years after the relevant transfers, was excessive and unreasonable.
• The delay prejudices the respondents’ ability to have a fair hearing, as evidence and documentation are less accessible, and recollections have faded.
• The claimants failed to provide sworn oral testimony during the initial hearing, which respondents argued should weigh against granting the amendments.
• Joinder and amendment should be refused because the new claims are not closely connected with the original claims and introduce different factual and evidential issues.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Unite The Union v Company A (in administration) [2010] IRLR 1042	Factual summary of the insolvency and administration context of Company A.	Used as background for understanding the administration and redundancies.
Spacewright Europe Ltd v Baillavoine [2012] IRLR 111	Clarification of principles regarding automatically unfair dismissal claims under Regulation 7 of TUPER.	Confirmed that relevant employees dismissed before transfer may have claims against transferees.
Gillick v BP Chemicals Ltd [1993] IRLR 437	Joinder of parties is not subject to time limits.	Supported the parties’ agreement that joinder applications are not time-barred.
Cullinane v Balfour Beatty Engineering Services Ltd [2011] UKEAT 0537/10/0504	Guidance on the reasonableness of delay beyond primary time limits for bringing claims.	Used to assess whether the claimants’ delay in seeking amendments was objectively reasonable.
London Borough of Southwark v Afolabi [2003] IRLR 220	Delay affecting cogency of evidence must usually be proven specifically.	Applied in assessing prejudice arguments related to delay.
Cocking v Sandhurst (Stationers) Ltd [1974] ICR 650	Principles governing the exercise of discretion to allow amendments out of time.	Considered in weighing whether to grant leave to amend claims.
Selkent Bus Co. Ltd v Moore [1996] ICR 836	Factors for granting leave to amend claims out of time.	Guided the court’s discretion regarding amendment applications.
Abercrombie v Aga Rangemaster Ltd [2013] IRLR 953	Clarified when amendment to introduce new claims out of time is permissible.	Found that wholly different claims, not closely connected to original claims, generally should not be allowed as amendments.
Walsall MBC v Birch UKEAT/0376/10	Time-limit for claims against transferees runs from date of relevant transfer in equal pay context.	Discussed but distinguished as applicable only to equal pay claims, not to the present unfair dismissal claims.
Ryan v Taylorplan Services Ltd and Another UKEAT 826/99	Claim for unfair dismissal amendment refused for being out of time.	Noted but considered less persuasive due to its premise that no discretion exists to grant leave if claim would be out of time.
Gill v Northern Ireland Council for Ethnic Minorities [2001] NIJB 289	Procedural errors should not affect outcomes if they can be corrected without undue prejudice.	Supported the court’s approach to allowing claimants to provide oral evidence despite initial omissions.
Kavanagh v Crystal Palace FC Ltd [2014] IRLR 139	Regulation 7 claims require subjective, fact-intensive analysis of dismissal reasons.	Recognised the evidential challenges posed by delay in such claims.
Barking and Dagenham London Borough v Oguoko [2000] IRLR 179	Recommended procedural approach for submissions and responses in tribunal proceedings.	Followed in managing submissions and comments process in this case.

Court's Reasoning and Analysis

The court began by acknowledging the complex factual and legal background, including the insolvency administration of Company A and the coordinated global restructuring. The claimants were dismissed before the relevant transfers of parts of Company A’s Northern Ireland business to Companies B, C, and D.

The claimants sought to add new claims of automatically unfair dismissal against the transferee companies pursuant to Regulation 7 of TUPER, which protects employees dismissed because of or connected with a transfer not involving economic, technical, or organisational reasons entailing changes in the workforce.

The court accepted that the new claims were not merely relabeling but introduced new causes of action and that joinder applications are not subject to statutory time limits. The respondents conceded the existence of relevant transfers and that the claimants, if employed at the time, would have been assigned to the transferred entities.

The principal legal question was whether the claimants’ applications to amend their claims to add these new causes of action were brought within a reasonable time under the secondary time limit provisions of Article 145(2) of the Employment Rights (Northern Ireland) Order 1996 (ERO), or whether the tribunal should exercise its discretion to allow amendments despite delay.

The court applied the guidance from Cullinane v Balfour Beatty, focusing on three key factors: the reason for the delay, prejudice to respondents, and the duration of the delay.

It found that the claimants’ delay was due to genuine and reasonable ignorance of their legal rights, given the complexity of TUPE law. However, the delay was very lengthy—over three years in each case—from the date of the relevant transfer to the application to amend.

Regarding prejudice, the court rejected the respondents’ submission that the delay made a fair hearing impossible, noting that relevant documentation was likely preserved due to ongoing administration and that statutory provisions and professional administrators would facilitate disclosure if leave were granted. Nonetheless, the passage of time diminished the cogency of evidence, particularly witness recollections.

The court emphasized the strong public interest in prompt resolution of unfair dismissal claims and the need for legal certainty and finality.

The court further reasoned that the proposed new claims were wholly different in nature from the original claims, focusing on different facts and legal issues. Therefore, the claims were not sufficiently connected to the existing proceedings to justify circumventing statutory time limits by amendment.

Considering the above, the court concluded that the proposed amendments would have been out of time even if commenced as fresh claims and that the delay was not reasonable. Exercising its discretion, the court decided not to allow the amendments, given the length of delay, the distinct nature of the new claims, and the impact on evidence and procedural fairness.

The court also addressed procedural matters, including the absence of sworn oral testimony from lead claimants during the initial hearing. It allowed the claimants to provide oral evidence at a reconvened hearing to avoid procedural unfairness, consistent with established principles encouraging correction of procedural errors where possible.

Holding and Implications

In the Snoddy case, the joinder of Company B (Avaya Ltd) as a respondent is set aside.

In the Mathews case, the application to join Company C (Genband Ltd) as a respondent is refused.

In the Firth case, the application to join Company D (Ciena Ltd) as a respondent is refused.

The claimants’ applications for leave to amend their claims to include new automatically unfair dismissal claims against the transferee companies are refused in all three lead cases.

The direct consequence is that the claimants cannot pursue claims against the transferee companies in these proceedings. No new precedent is established beyond the application of existing legal principles on time limits, joinder, and amendment discretion in the context of TUPE-related unfair dismissal claims.