Mr E McClung v Doosan Babcock Ltd and 1 other — 2021

This was a preliminary hearing before Employment Judge Wiseman concerning whether Mr McClung's existing claim included an automatically unfair dismissal complaint under section 104 Employment Rights Act 1996, whether later correspondence should be treated as an amendment application, whether any amendment should be allowed, and whether strike out or deposit orders should be made. The original ET1 had indicated unfair dismissal and discrimination because of religion or belief, with allegations of direct discrimination and harassment. A previous preliminary hearing had recorded that the claimant relied on religion as a Protestant Christian and on a philosophical belief in support for Rangers Football Club.

The tribunal found that the claim presented on 2 September 2019 did not include a section 104 ERA complaint. The claim form referred to unfair dismissal and incidents involving Donald Ross, but the tribunal found there was no hint that the claimant alleged he had asserted a statutory right or that he had been dismissed for doing so. When previously asked to explain how he could bring an unfair dismissal claim with less than two years' service, the claimant had referred to dismissal being unfair because it was discriminatory rather than to section 104 ERA.

The tribunal did not treat the claimant's email of 25 February 2020 as an application to amend. It found that the email did not say it was an amendment application, did not identify the statutory right said to have been asserted, and did not set out the causal link between any assertion and dismissal. The tribunal nevertheless considered the claimant's position as an application to amend, treating his later email of 29 June 2020 as the application to introduce a section 104 claim based on an asserted right to a peaceful work break.

Applying the amendment principles in Cocking, Selkent and Ali, the tribunal refused permission to amend. It held that the proposed section 104 complaint was an entirely new claim, not a relabelling of facts already pleaded; that it was made over a year after termination and was out of time; and that it had been reasonably practicable to bring it in time. Balancing hardship, the tribunal found that allowing the amendment would require the first and second respondents to seek further information, interview additional witnesses, amend responses, and likely address a further preliminary hearing on employment status.

The tribunal did not determine the respondents' applications to strike out the discrimination complaints or to make deposit orders. It held those matters over because the claimant had not understood that the hearing would address strike out or deposit arguments concerning the discrimination claims and needed time to prepare. No remedy was awarded.