G4S Secure Solutions (UK) Ltd v Jones

An amendment from a pleaded claim of actual unfair dismissal to one of constructive dismissal is not a mere re-labelling where it depends on later facts and acceptance of an alleged repudiatory breach. It is a new cause of action. The tribunal must address limitation and balance the parties’ prejudice under the principles in Selkent.

Where an employee’s internal appeal succeeds and, under the contractual disciplinary procedure, the employer may unilaterally substitute a lesser sanction for dismissal, the original dismissal vanishes. There is then no dismissal on which an unfair-dismissal complaint can be founded: Roberts v West Coast Trains Ltd, [2004] IRLR 788, applied.

The respondent employer appealed against orders of the Manchester Employment Tribunal dated 5 April 2013. The Employment Judge had refused to strike out the claimant’s unfair-dismissal complaint and permitted him to amend it from actual dismissal to constructive dismissal.

The claimant had presented an ET1 after being dismissed. His internal appeal later succeeded: dismissal was substituted with a final written warning, and he was directed to return to work at another site. He did not attend and never returned. The central issues were whether the amendment introduced a time-barred new claim and whether the successful internal appeal left any extant dismissal capable of supporting the original complaint.

1. Appeal allowed. The Employment Judge’s orders were set aside. Permission to amend was refused and the original unfair-dismissal claim was struck out for want of jurisdiction.

2. The ET1 plainly alleged actual dismissal on 13 January 2012. It did not plead facts capable of constituting constructive dismissal, nor acceptance by the claimant of a repudiatory breach. Any such acceptance could only have occurred when he failed to attend the new workplace after the successful appeal, which was after presentation of the ET1.

3. The proposed amendment was therefore a new cause of action based on unpleaded facts, not a category 1 re-labelling exercise. It raised a limitation issue which the Employment Judge had not considered. Applying Selkent Bus Co Ltd v Moore, [1996] ICR 836, the amendment was made more than a year after constructive dismissal could have been alleged and at the substantive hearing. The balance of prejudice favoured the employer.

4. On the strike-out issue, the applicable contractual documentation gave the employer sole discretion on an employee’s appeal to substitute a contractual sanction short of dismissal. It did not require the employee’s consent. The case was accordingly governed by Roberts v West Coast Trains Ltd, [2004] IRLR 788, rather than authorities involving a bilateral arrangement for a substituted sanction.

5. The successful appeal caused the original dismissal to vanish. No evidential inquiry was necessary because the relevant contractual documents were clear. There was no extant dismissal when the tribunal considered the claim, so it had no jurisdiction to entertain the original unfair-dismissal complaint.

• Employment Appeal Tribunal: Allowed the employer’s appeal, set aside the Employment Judge’s orders, refused the amendment and struck out the original unfair-dismissal claim.
• Manchester Employment Tribunal: On 13 March 2013, Employment Judge Bright refused strike-out and permitted an amendment from actual to constructive dismissal; reasons were promulgated on 5 April 2013.