Employment appeal tribunal overturns decision on unfair dismissal claim

12 Mar 2025Court Report

Employment Appeal Tribunal overturns decision on amendment to unfair dismissal claim by Mr David Fong

Introduction

The Employment Appeal Tribunal (EAT) has overturned a decision by the Employment Tribunal (ET) that refused Mr David Fong permission to amend his claim of unfair dismissal against his former employers, Raemoir Trout Fishery, operated by David Montgomery, Michael Cordiner, and Eunice Low. The EAT found that the ET had erred in characterising Mr Fong's amendment as a new claim rather than a re-labelling of existing allegations.

Background

Mr Fong, represented by Mr Terence Merck of Falconers Law, initially filed his claim in July 2021, alleging unfair dismissal, discrimination, and financial abuse by his employers. His claims included assertions that he was subjected to mental and financial abuse, and that he had witnessed illegal activities such as tax evasion and non-payment of minimum wages to employees.

Legal Principles

The EAT's decision centred on the application of legal principles regarding amendments to claims, notably those outlined in Selkent Bus Co Ltd v Moore [1996] ICR 836 EAT. The tribunal must balance the injustice or hardship of allowing or refusing an amendment, considering factors like the nature of the amendment and the timing of the application.

Tribunal's Decision

The ET, presided over by Employment Judge Hendry, had initially refused Mr Fong's application to amend his claim to include contentions of automatic unfair dismissal based on the assertion of statutory rights and protected disclosures. The ET concluded that Mr Fong's proposed amendments constituted new claims, which were out of time and not adequately articulated.

Appeal and EAT's Findings

On appeal, the EAT, led by Judge Barry Clarke, found that the ET had mischaracterised Mr Fong's amendments. The EAT determined that Mr Fong's claims were not new but rather required re-labelling, as they were based on the same factual allegations originally presented. The EAT noted that Mr Fong's claims of financial abuse and subsequent dismissal for raising these concerns were evident in his initial filings.

Implications of the Decision

The EAT's decision emphasises the importance of correctly identifying the nature of amendments in employment claims. By recognising Mr Fong's amendments as re-labelling, the EAT underscored the necessity for tribunals to carefully assess the substance of claims rather than their form, particularly when dealing with self-represented or vulnerable claimants.

Conclusion

The EAT's ruling has remitted the case back to the ET for reconsideration, instructing the tribunal to treat Mr Fong's amendments as re-labelling. This decision highlights the tribunal's duty to facilitate fair hearings and ensure that claimants' rights are not unduly restricted by procedural technicalities.