Sean McGettigan v Northstone (NI) Ltd — 2022

Sean McGettigan applied at an open preliminary hearing to amend his ET1 to add a claim of unfair (constructive) dismissal. The tribunal recorded that his original ET1, presented on 8 November 2021, pleaded unlawful deduction from wages and a public interest disclosure claim, but not constructive dismissal. It found that the proposed amendment would introduce a new claim based on the implied term of trust and confidence, a series of incidents from February 2020 to May 2021, and the last straw doctrine, rather than simply relabelling the existing allegations.

Applying the Selkent guidance and the other authorities cited by the parties, the tribunal held that the proposed constructive dismissal claim was out of time. It found that the claimant knew the circumstances on which he relied before his resignation, that the extended limitation date was 27 November 2021, that by 17 December 2021 he was aware of constructive dismissal as a possible claim, and that by 20 January 2022 he knew how to add a further claim. The tribunal did not accept that the absence of legal advice was a reasonable excuse for the delay.

Balancing hardship and prejudice, the tribunal refused the amendment. It accepted that allowing it would require the respondent to meet a new claim based on factual matters said to be over two years old, with additional cost and delay, while refusing it did not prevent the claimant pursuing his unlawful deduction from wages claim. The tribunal also noted that a whistleblowing detriment/dismissal complaint had previously been dismissed under Rule 52 in a separate judgment copied to the parties on 9 March 2022, and that an equal pay claim had later been rescinded by the claimant.