David Fong v David Montgomery & Ors

An amendment is a re-labelling, rather than a new complaint, where a fair construction of the ET1 already alleges facts and a causal connection capable of supporting the proposed statutory labels. The tribunal must read an ET1 substantively and proportionately, particularly where a vulnerable litigant in person has expressed the essential case imperfectly.

In deciding an amendment application, the tribunal must balance the injustice and hardship of allowing or refusing it. The Selkent factors are not a checklist. Time-limit issues do not arise merely because an existing factual case is given a new legal label. A lack of particularity may require clarification, but does not itself make a claim incapable of sensible response.

The claimant, acting without representation, presented an ET1 alleging unfair dismissal, discrimination and payment-related concerns. He said that he had raised underpayment and national minimum wage concerns, including concerns affecting other workers, and was dismissed when he sought to discuss what he described as financial abuse.

After several directions requiring further particulars, he sought to pursue automatic unfair-dismissal complaints under sections 103A and 104 of the Employment Rights Act 1996. The Employment Tribunal refused permission to amend. It treated the complaints as new, out-of-time claims which could not sensibly be answered.

The appeal concerned whether the proposed complaints were instead a re-labelling of the factual case advanced in the ET1.

1. Appeal allowed. The Employment Tribunal erred in law by treating the proposed automatic unfair-dismissal complaints as entirely new claims. No reasonable tribunal, properly directing itself, could have reached that conclusion.

2. A fair reading of the ET1 disclosed an allegation that the claimant had complained of financial abuse, including inadequate pay and non-payment of the national minimum wage, and that the respondents dismissed him when he tried to discuss it. That pleaded a causative link between his assertions and his dismissal. The later reliance on sections 103A and 104 of the Employment Rights Act 1996 was therefore a paradigm re-labelling exercise, not an attempt to introduce a new factual basis of claim.

3. The tribunal failed to construe the ET1 fairly and substantively. The claimant’s unrepresented status, poor expression and vulnerability required proactive case management to identify the real issues. His further particulars of 27 October 2021 confirmed, rather than created, the case concerning repeated pay shortfalls, the national minimum wage, assertion of statutory rights and public-interest disclosure.

4. Because the amendment was mischaracterised, the tribunal wrongly treated time limits as relevant. Its concerns about what had been said, by whom and about the minimum wage were matters capable of clarification by particulars; they did not mean that the claim could not sensibly be answered. It was also procedurally irregular to find, without evidence, what the claimant had had in mind when completing the ET1. Those errors tainted the Selkent balancing exercise.

5. The merits of the automatic unfair-dismissal claims were not determined. The amendment application was remitted to a different Employment Tribunal for reconsideration as a re-labelling application, preferably at a case-management hearing which properly clarifies the issues.

• Employment Appeal Tribunal: Allowed the appeal and remitted the amendment application to a different tribunal: [2025] EAT 31.
• Employment Tribunal: At a preliminary hearing on 2 December 2022, refused permission to amend the claim to add automatic unfair-dismissal complaints.