A Kemp (sitting alone) Mrs J Henry v Represented by Ms J Redpath Solicitor Highland Health Board — 2019

At the preliminary hearing on 8 February 2019, the claimant applied to amend the claim to add a section 47E Employment Rights Act 1996 claim. The tribunal refused that amendment. It held that there was no sufficient explanation for the delay in making the application, which was already out of time, and it considered that the proposed new claim had no reasonable prospects of success because the pleadings did not set out the requirements needed to found a section 47E claim, including the written application requirements in section 80F.

The claimant's separate stigma damages claim was withdrawn by her solicitor at the hearing. The tribunal therefore dismissed it under Rule 52 and treated it as struck out accordingly. The tribunal allowed the amendment only so far as it clarified the existing constructive dismissal and breach of contract claims, including the allegation that the final straw was the respondent's letter withdrawing the right of appeal.

On the breach of contract issue, the tribunal held that it had jurisdiction to consider the claim because it arose on termination and fell within section 3 of the Employment Tribunals Act 1996 and the Employment Tribunals (Extension of Jurisdiction) Order 1994. It refused the respondent's strike-out application under Rule 37. The tribunal said duplication with the constructive dismissal claim might arise, but it was not yet clear that the breach of contract claim had no reasonable prospects of success, and no final merits determination was made at this stage.