N Scott v Garden County Vending Limited — 2022

The preliminary hearing was conducted by Employment Judge L Burge on 31 January 2022, with the claimant in person and the respondent represented. The tribunal held that when the claim form was lodged the claimant was still in employment and had not been dismissed, so it had no jurisdiction to hear the original unfair dismissal claim. The decision records that the claim should have been rejected under Employment Tribunals Rules 2013 rules 12 and 26.

The tribunal allowed the claimant to amend her case to include constructive unfair dismissal. The written reasons describe this as a new legal label based on facts already pleaded in the claim form, and the judge applied Selkent Bus Co Ltd v Moore, Abercrombie and others v Aga Rangemaster Ltd, Vaughan v Modality Partnership and Prakash v Wolverhampton City Council. The tribunal found that the amendment was timely once the jurisdiction point was resolved and that the balance of injustice and hardship favoured the claimant.

The tribunal also allowed amendment to add whistleblowing. It held that the claim form already contained detailed allegations about COVID-19 safety, health and safety concerns, company vehicles, accusations of theft, interviews for new staff, a verbal warning and other detriments, even though the term whistleblowing was not used. The claimant was a litigant in person, and the tribunal said the information was already sufficiently set out in the claim form and related communications. The claim form also referred to victimisation, sexual harassment and harassment on the grounds of sex, but those issues were not in issue at this preliminary hearing. No remedy was awarded at this stage.