Mrs O Lawson v West Midlands Fire Service: 1304185/2024
JUDGMENT
[1]The claimant’s application to amend her claim to include a claim of wrongful dismissal is granted.[2]The respondent has leave to amend its response by 1600 on 28 February 2025 if it wishes to do so.REASONS
[1]The claimant, Mrs Lawson, was employed by the respondent, West Midlands Fire Service until her dismissal was confirmed by letter dated 8 January 2024. Case No: 1304185/2024[2]The claimant presented a claim to the Employment Tribunal on 3 April 2024. The claimant raised claims of unfair dismissal and discrimination on the grounds of the protected characteristic of disability.[3]The claimant subsequently withdrew the discrimination aspects of her claim.[4]The claimant provided further and better particulars of her unfair dismissal claim on 23 August 2024 and, at the same time, made an application via her representatives to amend her claim to include a claim of wrongful dismissal in respect of unpaid notice pay (the ‘Application’).[5]The respondent contests the Application.[6]With the agreement of the parties (as confirmed on behalf of the claimant on 9 September 2024 and on behalf of the respondent on 11 October 2024) the Application was heard on the basis of the papers alone.The hearing
[7]The tribunal dealt with the Application on 5 February 2025.[8]The tribunal had before it a 68-page agreed bundle of documents provided by the claimant. There were no witness statements, but the bundle included representations on the Application dated 23 August 2024 (in relation to the claimant’s representations) and 4 September 2024 (in relation to the respondent’s representations). Issues for the Tribunal to decide[9]The single issue I had to decide was whether the claimant’s application to amend her claim to include a claim for wrongful dismissal should be granted.Findings of fact
[10]I make the following findings of fact.[11]The claimant was employed by the respondent as a firefighter from 13 March 2020 until her dismissal without notice which was confirmed by letter dated 8 January 2024.[12]The claimant commenced early conciliation with ACAS on the 15 January 2024. Early conciliation came to an end on 26 February 2024. I find that the claimant was aware of the obligation to contact ACAS prior to presenting her claims to the tribunal.[13]The claimant’s claims were presented to the tribunal on 3 April 2024. The claims were presented in time and I am satisfied that the claimant knew that Case No: 1304185/2024 employees had certain rights and knew that those rights could be enforced via the employment tribunal.[14]The claimant did not at that stage have a representative.[15]In her responses to the questions at sections 8.2 and 15 on the ET1 form, the claimant made reference to her union. Specifically, she stated that her union could not understand why she had been dismissed.[16]The respondent submits that the claimant had the support of her trade union throughout the internal processes that preceded the claimant’s dismissal.[17]I find that the claimant was receiving support from her trade union prior to presenting her claims to the tribunal.[18]Section 8.1 of the ET1 form requires claimants to indicate the type of claim they are making by ticking the relevant box or boxes. The claimant ticked the boxes that relate to unfair dismissal and discrimination on the grounds of disability. She did not tick the box that relates to notice pay.[19]The claimant set out the grounds of her claim at section 8.2 of the ET1. She then provided further information at section 15. The claimant set out her concerns around a) the way she believed that her grievance had been mishandled by the respondent b) what she perceived as the respondent’s failure to adhere to its own policies and procedures and c) the way she believed that the disciplinary procedure that led to her dismissal for gross misconduct had been mishandled by the respondent.[20]The claimant made no express mention of notice pay.[21]The claimant instructed representatives who first wrote to the tribunal on 23 August 2024. The claimant’s representative a) confirmed that the claimant’s claims of discrimination were withdrawn, b) provided further and better particulars of the claimant’s claim for unfair dismissal and c) made the Application.[22]The claimant’s representative made brief submissions in the email of 23 August 2024 in support of the Application. It was submitted that the claimant had been unrepresented at the time of presenting her claim to the tribunal and had not understood that she may have a claim for wrongful dismissal.[23]The claimant’s representative further submitted that the proceedings would not be affected by granting the application. There would be no change to witness requirements and no requirement to extend the time estimate for the substantive hearing on liability. It was submitted that the wrongful dismissal claim arose out of the same facts that the tribunal would already have to consider at that substantive hearing. The claimant’s representative submitted that it would be in accordance with the overriding objective to grant the Application. Case No: 1304185/2024[24]The tribunal did not have any other submissions on behalf of the claimant in respect of the Application before it.[25]The respondent’s representative made brief submissions in an email of 4 September 2024. It was submitted on behalf of the respondent that although the claimant did not have a solicitor at the time of presenting her claim, she had had the support of her trade union throughout the respondent’s internal proceedings and that she could have sought advice from them. I find that this was indeed a course of action open to the claimant.[26]The respondent’s representative also drew the tribunal’s attention to the case of Chandok v Tirkey [2015] IRLR 195. The respondent’s representative submitted that this case was authority for the proposition that the ET1 is not, to use Mr Jerrison’s words merely “something to set the ball rolling”.[27]The respondent did not make any response as to the claimant’s representative’s contentions that the proceedings would not be affected by granting the Application.[28]The tribunal did not have any other submissions on behalf of the respondent in respect of the Application before it. Relevant law and conclusions[29]When assessing whether or not an application for an amendment to a claim should be granted, the tribunal should first consider the real practical consequences of allowing or refusing the amendment (Vaughan v Modality Partnership [2021] IRLR 97).[30]The injustice and hardship of allowing the amendment must be balanced against the injustice and hardship of refusing it (Selkent Bus Co Ltd v Moore [1996] IRLR 661).[31]A distinction is drawn between amendments that seek to add a new claim that arises out of the same facts as the original claim and those that add a new claim that is entirely unconnected with the original claim.[32]When carrying out this balancing exercise, the tribunal must take into account all of the circumstances of the case. Tribunals frequently have recourse to the list of relevant factors set out in the Selkent decision, although it must be borne in mind that these factors are a non-exhaustive list that might be relevant in any given case, rather than a rigid checklist that must be applied in every case.[33]Although the claimant did not mention wrongful dismissal or notice pay in her ET1 form, she did set out her concerns about the respondent’s handling of the process that resulted in her dismissal for gross misconduct. She believed that dismissal was unfair and intimated a claim for unfair dismissal. Case No: 1304185/2024[34]The facts that the claimant relies upon to support a claim of wrongful dismissal arise out of the respondent’s decision not to pay her notice pay. In turn, I find that this decision arises out of the respondent’s decision to dismiss the claimant for gross misconduct – i.e. summarily and without notice. I am therefore satisfied that the claim for wrongful dismissal arises from the same factual matrix as the existing claim for unfair dismissal.[35]As such, I find that the addition of a claim for wrongful dismissal simply adds a new label to the factual basis of the unfair dismissal claim that has already been pleaded.[36]The Application was made by the claimant’s representative on the same day that they came on the record. The respondent was given notice of the Application that same day. I therefore find that the Application was made in a timely fashion.[37]The respondent’s representative has not sought to argue that granting the Application would impact on the witness requirements for the substantive liability hearing or the time estimate for that hearing and neither have they sought to argue that granting the Application would otherwise impact on the fairness of the substantive hearing on liability.[38]I therefore accept the claimant’s representative’s submissions and find that granting the Application will not unduly affect the conduct of the proceedings or the ability for the parties to have a fair hearing.[39]The respondent’s representative drew specific attention to the case of Chandok. In that case it was stated that: “The ET1 and ET3 have an important function in ensuring that a claim is brought, and responded to, within stringent time limits. If a 'claim' or a 'case' is to be understood as being far wider than that which is set out in the ET1 or ET3, it would be open to a litigant after the expiry of any relevant time limit to assert that the case now put had all along been made, because it was 'their case', and in order to argue that the time limit had no application to that case could point to other documents or statements, not contained within the claim form.”[40]And: “In summary, a system of justice involves more than allowing parties at any time to raise the case which best seems to suit the moment from their perspective. It requires each party to know in essence what the other is saying, so they can properly meet it; so that they can tell if a tribunal may have lost jurisdiction on time grounds; so that the costs incurred can be kept to those which are proportionate; so that the time needed for a case, and the expenditure which goes hand in hand with it, can be provided for both by the parties and by the tribunal itself, and enable care to be taken that any one case does not deprive others of their fair share of the resources of the system. It should provide for focus on the central issues. That is why there is a system Case No: 1304185/2024 of claim and response, and why an employment tribunal should take very great care not to be diverted into thinking that the essential case is to be found elsewhere than in the pleadings.”[41]I find that the essential case in this extant case is indeed to be found in the pleadings. I have found that the wrongful dismissal claim does not represent a new cause of action; instead, it represents a relabelling of matters already pleaded in the ET1, notably at sections 8.2 and 15. This is not therefore a matter where the claimant’s case can only be found outside the pleadings and, as such, I find that the facts of this case distinguish it from the scenario envisaged by the EAT in Chandok.[42]I therefore find that, having regard to all of the circumstances of the case, the injustice and hardship to the claimant of refusing the Application outweighs the injustice and hardship to the respondent of granting it.[43]Accordingly, the Application is granted and the claimant’s claim is amended to add a claim of wrongful dismissal arising out of the respondent’s decision not to pay the claimant notice pay as more particularly pleaded in the claimant’s further and better particulars as submitted on 23 August 2024.[44]I grant leave to the respondent to amend its response by 1600 on 28 February 2025 if it wishes to do so.