(in chambers) Mr T Campbell v Written submissions by: Ms L Neil (Solicitor) Powerteam Electrical Services (UK) Limited — 2020

On 24 January 2020 the claimant lodged claims for unfair dismissal, statutory redundancy pay and unlawful deduction from wages. In this judgment, the tribunal dealt only with the claimant's application, made on 19 May 2020, to amend the ET1 to add a complaint of automatically unfair dismissal based on an alleged denial of the right to be accompanied at disciplinary hearings. The respondent opposed the amendment, arguing among other things that it raised new factual issues and was out of time.

Applying Rule 29 of the Employment Tribunals Rules of Procedure 2013 and the guidance in Selkent Bus Company Ltd v Moore and Abercrombie & Others v Aga Rangemaster Ltd, the tribunal held that the proposed amendment was a substantial one rather than a minor re-labelling exercise. It considered that the new pleading would involve different factual and legal enquiries, including whether the claimant had been called to a disciplinary hearing, whether he had sought to exercise the statutory right to be accompanied, and whether dismissal was for that reason.

The tribunal also treated limitation as a material factor. It noted that any complaint of this kind would be subject to the three-month time limit, that the date of dismissal was disputed, and that the amendment was sought several months after the events in question and shortly before the substantive hearing. The tribunal rejected the explanation that the material was unavailable in the previous representative's file, saying the relevant facts were known to the claimant and could have been raised earlier.

The application was refused because the proposed claim did not plead that dismissal was because the claimant sought to exercise the right to be accompanied, and therefore did not disclose a claim with reasonable prospects of success. The judgment does not decide the merits of the original unfair dismissal, redundancy pay, or unlawful deduction claims.