Ministry of Defence v Dixon

An Employment Tribunal may permit an amendment which adds an unfair-dismissal complaint arising after the original claim form was presented. The amendment must be determined under the ordinary Selkent principles, including limitation and prejudice. A claim for unfair dismissal based on the expiry of a fixed-term contract cannot be presented before dismissal. Employment Rights Act 1996 section 111(3) assists only where there has been notice of dismissal, not a notification of an anticipated contractual expiry.

The EAT may exceptionally allow an unrepresented party to rely on a new point where the existing material permits a fair decision and refusing it would cause injustice. Procedural defects in an amendment application may be venial where the opposing party received and understood the application.

The Claimant presented an ET1 seeking a declaration concerning her fixed-term status before her employment ended. After her employment ended, she used the Tribunal's case-management agenda to seek to amend the claim to add unfair dismissal. The Respondent's proposed list of issues treated unfair dismissal as already pleaded, and the Employment Tribunal proceeded on that basis.

After the primary limitation period, the Respondent contended that any unfair-dismissal claim in the first ET1 had been premature. The Employment Tribunal held that it had jurisdiction under Employment Rights Act 1996 section 111(3), or alternatively extended time. The Respondent appealed. The Claimant relied, among other matters, on her earlier application to amend.

The central issues were whether the original ET1 was validly presented before dismissal, whether time could be extended for an unpresented claim, and whether the proposed amendment could add a cause of action arising after the original ET1.

1. Appeal dismissed on an alternative basis. The EAT held that the Employment Tribunal's stated grounds could not stand. The letter of 11 March 2016 merely notified the anticipated expiry of the fixed-term contract. It was not notice of dismissal. Accordingly, Employment Rights Act 1996 section 111(3) did not validate an unfair-dismissal claim lodged before the dismissal.

2. The Tribunal also erred in purporting to extend time for a claim that had not been presented. Its limited discretion under section 111(2)(b) arises only in relation to a complaint already presented out of time.

3. The Claimant was nevertheless permitted to rely in the EAT on her earlier amendment application. The circumstances were exceptional. As an unrepresented litigant, she had correctly not claimed unfair dismissal before dismissal, had applied to amend after dismissal, and had been led by the Respondent and the Tribunal to believe that unfair dismissal was already in issue. The necessary material was before the EAT and refusing the point risked injustice.

4. The case-management agenda validly communicated an application to amend. Its failure to include the statement contemplated by Rule 30(2) of the ET Rules was venial. The Respondent had received the document, understood that unfair dismissal was the claim being added, and had no real uncertainty about the proposed amendment.

5. An Employment Tribunal has jurisdiction to consider an amendment adding a cause of action arising after the original ET1. That is not fatal or a nullity. The application must be decided judicially under Selkent principles, including whether limitation or prejudice makes amendment inappropriate. On the facts, the application was made in time, the unfair-dismissal particulars were already available, and no practical prejudice was identified.

6. The EAT did not substitute its own discretionary decision because the parties had not agreed to that course. The amendment application was remitted to the Employment Tribunal, with scope for further case-management directions if amendment is allowed.

• Employment Appeal Tribunal: The Respondent's appeal from the Employment Tribunal was dismissed on the alternative ground that the Claimant's amendment application remained to be determined. The amendment issue was remitted.
• London Central Employment Tribunal: At a preliminary hearing, the Tribunal held that it had jurisdiction over unfair dismissal under section 111(3) of the Employment Rights Act 1996, alternatively extended time, and dismissed the claim for a declaration of permanent status.