EAT Unfair Dismissal : Dismissal : Ambiguous Resignation –
PRACTICE AND PROCEDURE
– Application/claim – Amendment – Appellate jurisdiction/reasons/Burns-Barke –
Unfair dismissal – dismissal – fixed-term employee – Practice and procedure – claim – application to amend – whether raised below – appellate jurisdiction – The Claimant, not legally trained and acting in person (assisted by her husband, also not legally trained), lodged a claim with the Employment Tribunal (‘the ET’) before the termination of her employment with the Respondent; that claim (‘the first ET1’) related to her status as a fixed-term worker. By the time of the initial case management Preliminary Hearing (‘PH’), the Claimant had been dismissed and she therefore sought to apply to amend her claim to include a complaint of unfair dismissal – indicating her intention to make that application when completing the ET’s pro forma case management document, which she sent to the Respondent’s solicitors and to the ET. The Respondent’s solicitor did not complete a separate pro forma document but provided a draft list of issues, which he stated included the matters raised by the Claimant. The unfair dismissal claim was included in the draft list. At the case management PH, the Claimant was not asked about her application to amend but the Respondent’s solicitor confirmed that it understood that the claim included a complaint of unfair dismissal. Although asking for further particulars regarding another aspect of the claim, the Respondent did not seek further information about the unfair dismissal complaint. Subsequent to the case management PH, the Claimant sought to lodge a another ET1 (‘the second ET1’), this time ticking the box to show that she was claiming unfair dismissal; she confirmed, however, that this was simply the complaint that had already been referred to and the ET did not treat this as a new claim.
Subsequently, after the time limit for making a complaint of unfair dismissal had passed, the Respondent objected that the ET had no jurisdiction to hear that claim as the Claimant had not been dismissed when she lodged her first ET1 (‘the prematurity argument’). It appeared that those advising the Respondent had only spotted this point at or around that stage. A further PH was therefore listed to consider the prematurity argument. At that PH, the ET accepted that the Claimant had never intended to include a claim of unfair dismissal in her first ET1 but, in any event, considered she could rely on an earlier letter sent to her by the Respondent as notice of dismissal and thus the ET would be afforded jurisdiction to hear the claim by virtue of section 111(3) Employment Rights Act 1996 (‘ERA’). In the alternative, the ET considered the procedural history meant it had not been reasonably practicable for the Claimant to present her complaint of unfair dismissal earlier and so time would be extended for her to do so at that stage.
The Respondent appealed. In resisting the appeal, the Claimant relied on the ET’s reasoning and additional grounds, referring back to her intention when lodging the first ET1 and her earlier application to amend.
Held: dismissing the appeal on the alternative basis relied on by the Claimant.
It was correct that the ET had fallen into error in identifying the Respondent’s letter as notice of dismissal: the Respondent had written to the Claimant about the forthcoming expiration of her fixed-term contract but that contract only terminated later, by effluxion of time and that was how the Claimant had been dismissed (not by notice) – after the lodgement of her first ET1. The ET’s decision could not be upheld on this basis. Equally, although a point raised in argument rather than the Notice of Appeal, the Respondent was correct to object to the alternative basis for the ET’s decision – its purported extension of time in respect of a claim that had not yet been made. That also disclosed an error of law on the part of the ET.
Although the Respondent objected to the Claimant’s alternative ground for resisting the appeal on the basis that it was not a point she had taken below, even if that was correct (which was unclear) given the procedural history it would be unjust not to permit her to rely on her earlier application to amend the first ET1. Moreover, it was apparent that the ET at the second PH had accepted that the Claimant had never intended to include a complaint of unfair dismissal in her first ET1 (even if the Respondent had mistakenly thought that she had) and the application to amend itself had been validly made and the ET would have had jurisdiction to consider it. Although the amendment (adequately particularised given that the Claimant was merely attaching a label to matters already raised) would introduce a cause of action that had arisen only after the first ET1 was lodged, that was not fatal: the ET would need to consider the application on normal Selkent principles (see Selkent Bus Company Ltd v Moore [1996] IRLR 661 EAT) (Okugade v Shaw Trust [2005] UKEAT 0172 – 05 – 1108 and Prakash v Wolverhampton City Council [2006] UKEAT 0140 – 06 – 0109 applied).
Citations:
[2017] UKEAT 0050 – 17 – 0410
Links:
Jurisdiction:
England and Wales
Citing:
Cited – Science Warehouse Ltd v Mills EAT 9-Oct-2015
EAT Practice and Procedure : Amendment – Amendment of an ET claim to add a new cause of action – ACAS Early Conciliation (Section 18A Employment Tribunals Act 1996 (as amended))
At a Preliminary Hearing, . .
Lists of cited by and citing cases may be incomplete.
Employment
Updated: 31 March 2022; Ref: scu.597421