Paul Douglas v North Lanarkshire Council

When deciding an amendment application, an employment tribunal should ordinarily consider limitation as a Selkent factor. It may reserve the issue where the facts needed to determine time bar are unclear. If time bar was plainly overlooked because the pleaded claim lacked sufficient clarity, the amendment order does not determine it by implication. The issue remains a live jurisdictional matter which the tribunal hearing the evidence must address.

In an unfair-dismissal claim, the tribunal must not substitute its view for that of the employer. It must assess whether the employer had reasonable grounds for its belief after such inquiry as was reasonable, and whether dismissal fell within the range of reasonable responses.

The appellant, a council driver, was dismissed after a lengthy absence attributed to work-related stress. He presented claims including unfair dismissal and later amended his claim to allege detriment for protected disclosures under section 47B of the Employment Rights Act 1996.

The Employment Tribunal found that disclosures made in March 2019 caused four detriments, the latest occurring on 23 March 2019. It held the detriment claim was out of time and that it was reasonably practicable to have brought it in time. It also held that dismissal for anticipated unsatisfactory future attendance was fair.

The appellant appealed from the Glasgow Employment Tribunal’s judgment of 18 January 2023. He contended that allowing the amendment had conclusively resolved time bar, and that the tribunal had not properly applied the reasonable-inquiry principle to unfair dismissal.

1. Appeal dismissed. The Employment Judge’s order allowing the amendment did not expressly or implicitly decide limitation in respect of the March 2019 detriments. At that stage the proposed section 47B claim did not identify the relevant detriments or their dates with adequate clarity. The conclusion that the amendment was merely a relabelling exercise showed that the Judge had not appreciated that a distinct limitation issue arose.

2. A tribunal considering an amendment should usually examine time bar as one of the Selkent factors. Where the issue cannot properly be resolved without evidence, it may be reserved: Galilee v Commissioner of Police of the Metropolis [2018] ICR 634. Where time bar has been overlooked because of material uncertainty in the pleaded case, it remains a live jurisdictional issue. The tribunal hearing the evidence has a continuing duty to address it, whether or not the respondent raises it.

3. The full tribunal was therefore entitled to determine limitation. The last established detriment occurred on 23 March 2019, whereas early conciliation began on 28 February 2020 and the claim was presented on 18 May 2020. The appellant had not shown that it was not reasonably practicable to bring the section 47B claim within the primary time limit. The tribunal had no jurisdiction over that claim.

4. There was no error of law in the unfair-dismissal decision. The tribunal correctly avoided substituting its own assessment for that of the Operations Manager. It considered whether the manager had reasonable grounds, after reasonable inquiry, for believing that future attendance would remain unsatisfactory, applying Sainsbury’s Supermarkets Limited v Hitt [2003] ICR 111.

5. The extensive absence record and the occupational-health reports provided reasonable grounds for that belief. Although another reasonable employer might have waited to assess attendance after the return to work, dismissal was not outside the range of reasonable responses.

• Employment Appeal Tribunal — appeal dismissed: [2024] EAT 194.
• Employment Tribunal, Glasgow — by judgment dated 18 January 2023, held the section 47B detriment claim out of time and dismissed the unfair-dismissal complaint.