Catering Academy UK Ltd v McLorren & Ors

An Employment Tribunal may permit an amendment adding a constructive unfair-dismissal claim which accrued after presentation of the original claim. This remains so where reinstatement on internal appeal has removed the earlier actual dismissal and rendered the original dismissal claim unsustainable.

There is no time limit on amendments as such. Delay may matter on a contested application under the Selkent principles, but where the respondent does not object, the Tribunal need not undertake that exercise.

The claimants were initially dismissed, but their internal appeals resulted in reinstatement subject to written warnings. They objected to reinstatement on those terms, lodged Employment Tribunal claims including unfair dismissal, and later resigned.

The respondent contended that reinstatement meant that the original dismissals had ceased to exist. At a preliminary hearing, Employment Judge Zuke allowed an unopposed amendment to add claims for constructive unfair dismissal arising from the resignations. The respondent appealed, contending that the claims were premature or out of time and that the Judge should have applied the Selkent amendment principles.

1. Appeal dismissed. The amendment was properly permitted and the constructive unfair-dismissal claims were properly constituted.
2. Following reinstatement on appeal, an earlier actual dismissal may be removed, so that the original unfair-dismissal claim cannot proceed on that basis. That does not prevent a claimant from advancing a constructive-dismissal claim arising from subsequent events.
3. An amendment may add a cause of action which accrued after the original claim form was presented. The ability to seek such an amendment is not defeated because the original pleaded claim is unsustainable.
4. There is no freestanding limitation period for making an amendment application. Time may be relevant where an amendment is opposed and the Tribunal must exercise its discretion under Selkent. Here the respondent's representative did not oppose the amendment. Employment Judge Zuke was therefore not required to undertake a Selkent exercise.

• Employment Appeal Tribunal: dismissed the respondent's appeal and upheld Employment Judge Zuke's order of 14 October 2015 permitting the unopposed amendment.
• Employment Tribunal: Employment Judge Zuke permitted the claimants to amend their claims to add constructive unfair-dismissal claims arising on 27 January 2014.