EAT The Claimant was employed on a fixed term contract. During the terms of the contract he was dismissed for misconduct and made an application to the Employment Tribunal (ET) claiming unfair dismissal. He appealed but the appeal was heard after the date when the contract would have expired by effluxion of time. The appeal was allowed. The Claimant maintained that the effect of the successful appeal was to extend the contract beyond the date when it would have expired. The ET rejected this submission and refused permission to amend the Claim Form so as to allege that the dismissal occurred subsequent to the appeal hearing. The EAT held:
a. Where an employee on a fixed term contract is dismissed prior to the expiry of the fixed term, but on appeal overturns the dismissal, the appeal does no more than reinstate the original fixed term contract. If the appeal takes place after the expiration of the original fixed term, the successful appeal does not, without more, have the effect of extending the fixed term contract beyond the date when it would expire according to its terms.
b. An ET has jurisdiction to exercise its discretion to allow a claim that is presented prematurely to be amended so as to permit a claim to be included that could not have been included when the claim form was originally presented, because the claim had accrued at a later date. A claim may be presented pursuant to section 111(2) of the Employment Rights Act 1996 by way of amendment to an existing claim form as well as by the presentation of a claim form. The discretion to allow such an amendment must be exercised by the ET in accordance with the well-known principles set out in Selkent Bus Company v Moore [1996] IRLR 661.
Judges:
Serota QC
Citations:
[2006] UKEAT 0140 – 06 – 0109, UKEAT/0140/06
Links:
Statutes:
Employment Rights Act 1996 111(2), Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 3
Jurisdiction:
England and Wales
Citing:
Cited – Selkent Bus Co Ltd v Moore EAT 2-May-1996
The claimant had been summarily dismissed. His application at first made no mention of a complaint that it had related to his trades union activities. He wrote to the secretary seeking amendment of his claim to include a claim that his dismissal was . .
Cited – London Probation Board v Kirkpatrick EAT 7-Jan-2005
EAT Unfair Dismissal
When an employee is dismissed and then reinstated on an internal appeal it is open to the parties to agree reinstatement as a matter of contract and such an arrangement albeit made . .
Cited – West Midlands Co-operative Society v Tipton HL 1986
All information available to an employer at the date of the termination of the employment relationship is relevant when considering the fairness of dismissal, and also any information becoming available during the course of, for example, an internal . .
Cited – British Medical Association v Chaudhary CA 15-May-2003
The claimant had sought registration as a specialist medical practitioner by the respondent. His complaint that the crtiria used to reject his claim were discriminatory had been rejected by the employment tribunal and EAT on the basis that they had . .
Cited – Roberts v West Coast Trains Ltd CA 16-Jun-2004
The employee had been dismissed. He began a claim for unfair dismissal, but also appealed within his employers’ procedure, accepting a demotion. The tribunal then found that he had not been dismissed.
Held: There had been no dismissal. Had he . .
Cited – Savage v J Sainsbury Ltd CA 1980
Brightman LJ discussed the effect on time requirements of an employee’s appeal against the employers decision to dismiss him: ‘The matter came before the Employment Appeal Tribunal with commendable expedition on 4.10.78. Judgment was reserved until . .
Cited – West Midlands Co-operative Society v Tipton HL 1986
All information available to an employer at the date of the termination of the employment relationship is relevant when considering the fairness of dismissal, and also any information becoming available during the course of, for example, an internal . .
Cited – Sinclair Roche and Temperley and others v Heard and Another EAT 22-Jul-2004
EAT Sex discrimination claim by former partners against the partnership and individual partners: direct discrimination (in both cases) and indirect discrimination (in one) found by ET.
(i) ET must, if . .
Cited by:
Cited – Odoemelam v Whittington Hospital NHS Trust EAT 6-Feb-2007
EAT Statutory grievance procedures
Need for grievance to identify that complaint is one of racial discrimination – application to claims against employees as well as to claims against their employers. . .
Cited – Mackay v Hanna (T/A Blakes Newsagents) EAT 20-Jun-2007
EAT Practice and Procedure – Amendment / 2002 Act and Pre-action Requirements
Where a claim form is issued prematurely by reason of failure to comply with Section 32(2) of the Employment Act 2002 an . .
Lists of cited by and citing cases may be incomplete.
Employment
Updated: 07 July 2022; Ref: scu.245010
