Paul Douglas v North Lanarkshire Council

The Employment Appeal Tribunal refused the appellant's appeal. The key issues were (i) whether the Employment Tribunal erred in permitting an amendment to add whistleblowing complaints under sections 47B and 103A of the Employment Rights Act 1996 and then treating the section 47B claim as time-barred, and (ii) whether the tribunal misapplied the test in Sainsbury's Supermarkets Ltd v Hitt when evaluating fairness of dismissal for some other substantial reason under section 98 ERA. The EAT held that, where an amendment application is unclear, a tribunal may permissibly allow the amendment without finally resolving time bar questions and that a later full tribunal remains under an ongoing duty to address any live jurisdictional time-bar point. The EAT also held there was no error in the tribunal's application of the Sainsbury's test: the respondent had reasonable grounds for its belief about future attendance, and dismissal fell within the band of reasonable responses.

Background and procedural posture. The appellant was dismissed by the respondent on 25 February 2020. He brought an ET1 on 18 May 2020 complaining of unpaid wages, holiday pay and unfair dismissal. He later sought to amend to add detriment and automatic unfair dismissal claims arising from protected disclosures (sections 47B and 103A ERA) and a disability discrimination claim. The amendment was allowed in January 2022 in respect of the whistleblowing claims but the disability claim was refused; the matter proceeded to a full hearing in November/December 2022. The tribunal found protected disclosures were made on 10 March 2019 and established four specific detriments, the last occurring on 23 March 2019. It held the section 47B claim was outwith the primary time limit and that no reasonable basis existed to extend time. It also found the dismissal fair, concluding the reason was "some other substantial reason" concerning a genuine belief about future attendance.

Nature of the claim / relief sought. The appellant sought remedies for unpaid wages and holiday pay, unfair dismissal, detriment and automatic unfair dismissal for making protected disclosures under sections 47B and 103A ERA, and initially sought to plead disability discrimination.

Issues framed by the court.

• Whether allowing the amendment in January 2022 had implicitly resolved the jurisdiction/time-bar question in favour of the claimant;
• Whether a tribunal may reserve or revisit a time-bar point when an amendment lacks clarity;
• Whether the ET correctly applied the Sainsbury's Supermarkets Ltd v Hitt test when assessing fairness of dismissal for "some other substantial reason" under section 98 ERA.

Concise account of reasoning. The EAT concluded that, because the pleaded amendment remained materially unclear as to the nature and dates of the alleged detriments, the Employment Judge considering the amendment had not addressed the time-bar issue in relation to the specific March 2019 detriments and therefore had not determined it either expressly or by implication. The EAT preferred the approach of Galilee (that time-bar may be reserved) over Amey where necessary, and held that when time-bar is unclear it is competent to reserve it; where the point was overlooked it remains a live jurisdictional matter for the tribunal at the final hearing. On unfair dismissal, the tribunal had applied the correct standard, considered reasonable inquiry and occupational health evidence, and reasonably concluded the dismissal fell within the range of reasonable responses under section 98 taking into account Sainsbury's guidance.

Appeal dismissed. The EAT rejected the appellant’s submission that the earlier amendment ruling conclusively decided time bar; where an amendment is unclear the tribunal may reserve or may not have addressed time bar, leaving it live for the final tribunal which must address jurisdictional points. The EAT also found no error in the tribunal’s application of the Sainsbury’s test in relation to dismissal for "some other substantial reason" under section 98 ERA; the employer had reasonable grounds for its belief about future attendance and dismissal was within the band of reasonable responses.

This is an appeal to the Employment Appeal Tribunal from a full Employment Tribunal sitting at Glasgow (Judgment dated 18 January 2023). The EAT delivered judgment on 10 December 2024 ([2024] EAT 194).