Tribunal erred in refusing litigant in person’s amendment to claim
The Employment Appeal Tribunal (EAT) has ruled that a tribunal wrongly refused a litigant in person permission to amend his claim to include automatic unfair dismissal after asserting a statutory right or making a protected disclosure.
Background
In Fong v Montgomery and others (t/a Raemoir Trout Fishery), the claimant, a litigant in person, brought claims for unfair dismissal and underpayment of wages. His ET1 included references to alleged financial abuse by his employer, including non-payment of wages and concerns about other employees not receiving the national minimum wage. He also ticked the whistleblowing box on the ET1, requesting that the information be forwarded to a regulator.
The respondent disputed his employment status and asserted that he was dismissed due to inappropriate conduct. Attempts to clarify the issues at a preliminary hearing proved unsuccessful. The claimant later provided further particulars, making clear that his dismissal was linked to his complaints about pay shortfalls and non-compliance with minimum wage laws.
An employment judge treated this as an amendment to introduce a new claim, rather than a re-labelling of an existing claim, and refused permission for the amendment.
EAT decision
The EAT overturned the tribunal’s decision, ruling that it had taken the wrong approach.
The key issue was that the claimant’s original claim form already contained references to his concerns about pay and how his employer reacted when he raised them. While he had not used precise legal terms at the start, the essence of his claim was clear. The EAT decided that this was not a new claim but rather a case of adding legal labels to facts that were already there.
The tribunal should have helped clarify the issues earlier instead of repeatedly asking the claimant to amend his claim. The EAT found that the tribunal’s refusal to allow the amendment was unfair because it wrongly treated the clarification as a new claim and failed to properly consider the impact on the claimant.
The EAT also criticised the tribunal for making assumptions about what the claimant did or didn’t intend when he first submitted his claim, without actually hearing evidence from him.
Key takeaways for employers
This case is a reminder that tribunals may take a broad approach when deciding whether to allow claim amendments, especially where a claimant is unrepresented. Employers should be prepared for claims to evolve over time and should not assume that an unclear claim will simply be dismissed on a technicality.
Employers should also be aware that tribunals expect them to engage constructively in case management discussions. If a claim is unclear, the best approach is often to work with the tribunal to identify the real issues as early as possible, rather than relying on procedural arguments.
Where a former employee is alleging unfair dismissal or retaliation for raising concerns, seeking early legal advice can help assess the risks and prepare an effective response.
For more information or advice, please contact Sofia Efstathiou in our Employment team on 020 7665 0907, or complete the form below.