David Fong v David Montgomery & Ors

The Employment Appeal Tribunal allowed the appeal against the Employment Tribunal's refusal to permit an amendment to plead automatic unfair dismissal for asserting a statutory right and/or making a protected disclosure. The EAT applied the well-known Selkent principles on amendment, emphasising that the tribunal must weigh the injustice of allowing or refusing an amendment and must categorise whether a proposed amendment is a minor re-labelling or a new complaint. The EAT held that the Employment Tribunal had erred in law by failing to give the ET1 a fair reading, by treating the claimant's case as a new complaint rather than a re-labelling, by taking into account irrelevant considerations (including time limits), and by making a factual finding without hearing evidence. The EAT remitted the application to the tribunal to be reconsidered, directing that the proposed amendment be characterised as a re-labelling and that the matter be dealt with as part of case management.

This is an appeal from a preliminary Employment Tribunal decision refusing the claimant permission to amend his claim to include a contention of automatic unfair dismissal under sections 103A and 104 of the Employment Rights Act 1996 (for alleged protected disclosures and assertions of statutory rights).

Background and parties:

• The claimant (self-represented) brought claims including unfair dismissal, discrimination and complaints about pay. The respondents were the owners/operators of a trout fishery.
• The ET1, and subsequent particulars, referred to alleged "abuse" by the employer encompassing alleged underpayment (including national minimum wage concerns) and conduct affecting the claimant's mental health; the claimant alleged he was dismissed after raising those concerns.

Procedural history:

• The matter proceeded through a series of case management preliminary hearings. Employment Judge Hendry decided the claimant was a worker in an earlier period and an employee from 1 September 2020 to dismissal on 5 March 2021, so he lacked qualifying service for an ordinary unfair dismissal claim but could, in principle, pursue automatic unfair dismissal claims.
• At a preliminary hearing on 2 December 2022 the tribunal refused the claimant permission to amend, treating the proposed automatic unfair dismissal allegation as a new head of claim and citing lack of particulars, time limits and that the claim could not sensibly be responded to.
• Permission to appeal to the EAT was granted, and the appeal was heard before Judge Clarke.

Issues before the EAT:

1. Whether the tribunal properly characterised the proposed amendment as a new complaint rather than a re-labelling of matters pleaded in the ET1.
2. Whether the tribunal erred in law in applying time limit considerations and in making findings of fact without hearing evidence.
3. Whether the tribunal failed to give a fair reading to the ET1 and to apply the correct approach to a litigant in person.

Reasoning and decision:

• The EAT reviewed the Selkent approach to amendments and emphasised that tribunals must weigh the injustice of allowing or refusing an amendment and give the ET1 a fair reading. The court also applied guidance in Vaughan and Cox about case management and treatment of litigants in person.
• The EAT concluded that the claimant’s ET1 and subsequent particulars sufficiently alleged that he raised concerns about underpayment and that his dismissal was linked to those representations: that factual substance only required proper legal labelling. The tribunal therefore should have treated the proposed amendment as re-labelling, not a new claim.
• The tribunal’s errors included misreading dates, making a factual finding about the claimant’s state of mind when completing the ET1 without hearing evidence, treating time limits as decisive, and concluding the particulars were incapable of sensible response. Those errors vitiated the Selkent balancing exercise.
• The EAT remitted the amendment application to the Employment Tribunal to be reconsidered afresh, directing that it be characterised as a re-labelling and recommending that the issue be determined as part of a case management hearing before a different tribunal.

Relief sought: permission to amend the claim to include automatic unfair dismissal for asserting statutory rights and/or making a protected disclosure.

Appeal allowed. The EAT held that the Employment Tribunal erred in law by failing to give the ET1 a fair reading, mischaracterising the proposed amendment as an entirely new complaint rather than a re-labelling, improperly taking time limit considerations and other irrelevant matters into account, and making a factual finding without hearing evidence. The EAT remitted the amendment application to the Employment Tribunal to be reconsidered, directing that it be treated as a re-labelling and handled as part of case management by a different tribunal.

Appeal to the Employment Appeal Tribunal from an Employment Tribunal preliminary case management decision of Employment Judge Hendry refusing permission to amend (preliminary hearing 2 December 2022). Permission to appeal was given by Lady Haldane. EAT neutral citation: [2025] EAT 31. Case No: EA-2023-SCO-000004-DT.