Ministry of Defence v Dixon UKEAT/0050/17/DM

Appeal against a decision that the ET had jurisdiction to hear the Claimant's claim of unfair dismissal. Appeal dismissed.

The Claimant worked on a series of fixed term contracts for the MoD. The MoD then informed her that after the 4th fixed term contract, she would no longer be employed by them. The Claimant completed an ET1, the intention of which was to apply for a declaration of status as a permanent employee, but as she knew that she would have been dismissed by the time of the hearing, she also ticked the boxes relating to unfair dismissal remedies 'in anticipation' of the dismissal. The Respondent, in their response to the claim, acknowledged that she was also claiming unfair dismissal and at that stage the Respondent did not seek to argue that any complaint of unfair dismissal included within the Claimant's claim would have been presented prematurely (the Claimant's final fixed-term contract not having expired at the date she lodged her first ET1). In advance of the PH to decide the declaration issue, the Claimant sought to amend her claim to include unfair dismissal (having by then been dismissed). The Claimant was concerned that she had not specifically mentioned unfair dismissal in her first ET1 (because it would have been premature) and so she submitted another ET1 in order to ensure that everything was indeed contained within an ET1. She said that it was not a new claim (and therefore there was no need to pay another fee or obtain an EC certificate) but was in fact an extension or development of the existing claim. The Respondent applied for the Claimant's claims to be struck out or made subject to deposit orders, raising - for the first time - the point that the unfair dismissal claim had been presented prematurely, so the ET did not have jurisdiction to decide it. This application was made after the time limit for making a complaint of unfair dismissal had passed. At that PH, the ET accepted that the Claimant had never intended to include a claim of unfair dismissal in her first ET1 but, in any event, considered she could rely on an earlier letter sent to her by the Respondent as notice of dismissal and thus the ET would be afforded jurisdiction to hear the claim by virtue of section 111(3) ERA. In the alternative, the ET considered the procedural history meant it had not been reasonably practicable for the Claimant to present her complaint of unfair dismissal earlier and so time would be extended for her to do so at that stage. The Respondent appealed.

The EAT dismissed the appeal. The ET had fallen into error in identifying the Respondent's letter as notice of dismissal and its purported extension of time in respect of a claim that had not yet been made. However, it would be unjust not to permit her to rely on her earlier application to amend the first ET1. Moreover, it was apparent that the ET at the second PH had accepted that the Claimant had never intended to include a complaint of unfair dismissal in her first ET1 (even if the Respondent had mistakenly thought that she had) and the application to amend itself had been validly made and the ET would have had jurisdiction to consider it. Although the amendment (adequately particularised given that the Claimant was merely attaching a label to matters already raised) would introduce a cause of action that had arisen only after the first ET1 was lodged, that was not fatal: the ET would need to consider the application on normal Selkent principles.

Published: 06/10/2017 11:10

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