United Kingdom Employment Appeal Tribunal

Appeal No. UKEAT/0347/15/BA

EMPLOYMENT APPEAL TRIBUNAL

FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8AE

                                                                                                             At the Tribunal

                                                                                                             On 21 April 2016

Before

HIS HONOUR JUDGE PETER CLARK

(SITTING ALONE)

CATERING ACADEMY UK LIMITED                                                                APPELLANT

MS L McLORREN, MS A ATKINS & MS J SUMMERS                                RESPONDENTS

Transcript of Proceedings

JUDGMENT

APPEARANCES

SUMMARY

PRACTICE AND PROCEDURE - Amendment

The Employment Judge allowed the Claimants’ application for permission to amend their claim forms to add a claim of unfair constructive dismissal which arose after the claims were lodged (the actual dismissal claim was unsustainable following reinstatement on appeal; see Prakash).  The Respondent’s representative below did not object to amendment.

Appeal based on a time point unarguable in those circumstances.  Selkent exercise did not arise given the lack of objection.

HIS HONOUR JUDGE PETER CLARK

1.                  This case is proceeding in the London (South) Employment Tribunal.  The parties are Ms McLorren, Ms Atkins and Ms Summers, Claimants, and Catering Academy UK Ltd, Respondent.  I have before me for a Full Hearing an appeal by the Respondent against an Order made by Employment Judge Zuke sitting alone on 14 October 2015, granting permission to the Claimants to amend their claims, in the following circumstances.

2.                  The Claimants were employed by the Respondent until their dismissals effective on 13 September 2013.  All appealed internally against dismissal with qualified success.  On 18 October they were informed that each would be reinstated but subject to receiving a written warning.  The Claimants objected to reinstatement on those terms, and each presented a form ET1 to the Tribunal, Ms McLorren on 29 November and her two fellow Claimants on 19 December.  The complaints included unfair dismissal.  Thereafter, on 27 January 2014, all Claimants purported to tender their resignation to the Respondent.

3.                  The Respondent entered forms ET3 raising a jurisdictional point, namely that at the time of lodging their claim forms the Claimants remained employees as a result of their reinstatement on appeal (see Roberts v West Coast Trains Ltd [2004] IRLR 788 CA) and thus could not bring a claim of unfair dismissal, which, as the name suggests, requires at least a dismissal.  That plea in bar led Employment Judge Baron to direct on 14 September 2015 a Preliminary Hearing to consider the following relevant issues for present purposes: (1) whether any of the claims should be dismissed because they were presented outside the applicable time limit; and (2) whether any of the Claimants were dismissed prior to the presentation of her claim, if so on what date and whether such dismissal was express or constructive.

4.                  That was the hearing before Employment Judge Zuke on 14 October 2015.  By a Judgment with Reasons dated 19 October Employment Judge Zuke permitted the Claimants to amend their claims by adding a complaint of unfair constructive dismissal on 27 January 2014.  I note (see Reasons, paragraph 8) that Ms Hall, a consultant then appearing on behalf of the Respondent, did not object to that amendment.

5.                  It seems from paragraphs 6 and 8 of the Reasons that Employment Judge Zuke formed the view, based on Roberts, that the effect of the reinstatement on appeal was to remove the original dismissal thus, inferentially, rendering the original unfair dismissal claim unsustainable.  He referred the parties to the Judgment of HHJ Serota QC in Prakash v Wolverhampton City Council UKEAT/0140/06/MAA, September 2006, suggesting that an amendment be the appropriate course.  As I indicated earlier, Ms Hall did not oppose that course.

6.                  In this appeal Mr Rees seeks to argue that the Judge was wrong to hold (Reasons, paragraph 10) that the claims were lodged in time.  As I understand it, he seeks to contend that on the basis of constructive dismissal the effective date of termination was 27 January 2014.  Those claims are either premature or well out of time, since the application to amend was not made until 14 October 2015, and no consideration was given by the Judge to the well known Selkent Bus Co Ltd v Moore [1996] ICR 836 principles applicable to amendments.

7.                  In my judgment, that argument is quite hopeless.  In Roberts at paragraph 35 Arden LJ accepted a submission by Ms Melanie Tether for the employer that there was nothing to prevent Mr Roberts from complaining of constructive dismissal as opposed to the original vanishing actual dismissal later revoked on appeal.  The point in Prakash is that a Claimant may apply to amend his claim to add a cause of action that accrued after the claim was originally presented.  That is consistent with the approach of Mummery LJ in the discrimination case of Chaudhary v Royal College of Surgeons [2003] ICR 1510 (see Prakash, paragraph 41) even where the original pleaded claim is bad (see paragraphs 28 and 62 of Prakash).  The Prakash principle, I note, is specifically cited in both the English and Scottish presidential statements on unpaid holiday pay claims both dated 27 March 2015, thus such claims may be amended, if permitted, to add money claims post-dating the original claim form being presented.

8.                  It is axiomatic, as Mr Rees accepts, that there is no time limit on amendments as such although time may be a relevant consideration when deciding whether or not to grant permission to amend on a contested application, applying Selkent principles.  However, in this case the Respondent’s representative did not object to the amendment.  Consequently, it was unnecessary for Employment Judge Zuke to embark on the Selkent exercise.

9.                  In these circumstances, this appeal fails and is dismissed.  The amendment was properly allowed without objection, thus the new constructive unfair dismissal claim is properly constituted going forward.