Pope v Rise (Refuge, Information, Support & Education) & Ors (Contract of Employment : Notice and pay in lieu)

An employment tribunal may refuse an amendment which is, in substance, an attempt to advance an ordinary unfair dismissal claim under the label of wrongful dismissal when the claimant lacks the qualifying service for unfair dismissal.

A wrongful dismissal claim based on notice pay concerns contractual sums due on termination. It cannot succeed where the employer has paid the employee’s full contractual notice entitlement. A claim for unauthorised deduction of wages is not an alternative means of recovering notice pay.

The claimant sought to amend proceedings to add a claim for wrongful dismissal. The Employment Judge refused permission, finding that the proposed amendment was in substance an attempt to pursue ordinary unfair dismissal although the claimant lacked one year’s continuous employment.

On a rule 3(10) application, the Employment Appeal Tribunal considered whether that refusal was permissible. The claimant also contended that she had received only three weeks’ notice pay. The respondent’s written case was that it had summarily dismissed her after paying one month’s money in lieu of notice.

1. The rule 3(10) application was dismissed. The Employment Judge’s refusal to permit the amendment was unimpeachable. Although the proposed amendment referred to breach of contract or wrongful dismissal, the judge was entitled to conclude that it was an impermissible attempt to litigate ordinary unfair dismissal without the necessary qualifying service.

2. The Tribunal distinguished the limited contractual issue which could potentially remain. A wrongful dismissal claim for notice pay requires proof that the employee was paid less than the contractual sum due on termination. The claimant’s claim that she was four days short of a four-week or one-month notice period could only succeed if the evidence established an underpayment.

3. The claimant could not recast the alleged shortfall as a claim for unauthorised deduction of wages. The judge referred to Delaney v Staples as preventing that route.

4. On the papers, the respondent had asserted that it paid one month’s pay in lieu of notice. If that was correct, there was no viable wrongful dismissal claim. The judge held that, even if the claim had been relabelled as a notice-pay claim, it could have been struck out as an abuse of process because the contractual entitlement had already been paid.

5. The claimant was given 14 days to seek a review if the judge’s assumptions about the paperwork were wrong.

• Employment Appeal Tribunal: Rule 3(10) application dismissed. The Tribunal upheld the Employment Judge’s refusal to permit the proposed amendment.
• Employment Tribunal: The Employment Judge refused permission to amend the claim to add wrongful dismissal.