Mr M Geary v Haddington Citizens Advice Bureau — 2022

At the preliminary hearing by CVP on 25 March 2022, Employment Judge Jones considered the claimant's application to amend his unfair dismissal claim. The claimant, who had lodged his original unfair dismissal claim on 10 December 2021 following dismissal with effect from 10 September 2021, sought to add a new section 103A ERA 1996 automatic unfair dismissal claim based on alleged protected disclosures said to have been included in a grievance letter dated 31 August 2021. He also sought, without objection, to add further particulars to the basis on which he alleged that his dismissal was unfair under section 98 ERA 1996.

The tribunal granted the amendment to add further particulars to the existing section 98 unfair dismissal claim, but refused the amendment to add the section 103A claim. In doing so it applied the Selkent amendment principles and the guidance in Cocking and Harvey paragraph 311.03, balancing the relative injustice and hardship of allowing or refusing the amendment. The judge found that the proposed section 103A claim was a substantial new cause of action, that the claimant's explanation for not including it earlier was not credible, and that the schedule of loss made no reference to section 103A despite noting that the sums sought exceeded the statutory unfair dismissal cap. The tribunal also found that the proposed claim was out of time, albeit not by a large margin, and that the claimant had provided no proper particulars of the alleged protected disclosures or causation until the hearing itself.