The EAT has come up with another clever way of circumventing s31 of the Employment Act 2002 in Mackay v Blakes Newsagents (HHJ Serota QC).
It held that where an ET1 is presented prematurely (because 28 days from the grievance letter had not elapsed), an employment tribunal has jurisdiction to permit the ET1 to be amended after the 28 days has elapsed, provided it contains one or more causes of action that are not caught by s32(2).
The EAT has handed down an important decision, GAB Robins v Trigg, dealing with the calculation of a compensatory award for a constructively dismissed employee who had been off work sick.
The issue, on which there was no direct authority, was whether such an employee's loss of earnings has been caused by the constructive dismissal or, instead, caused by her long-term sick absence. The employer argued that since the employee had been off work for four months prior to her dismissal, her absence after the dismissal had not been caused by that dismissal.
HHJ Peter Clark distinguished an 'actual' dismissal, where loss of earnings might not be awarded, from a 'constructive' dismissal (para. 66). The constructive dismissal covered a whole series of events, not just the 'last straw' (failure to deal with a grievance properly), some of which were the incidents of bullying and overwork which gave rise to the sickness absence in the first place.
In those circumstances, the course of conduct by the employer amounted to a breach of the implied term, formed part of the constructive dismissal, and thus the Claimant’s ill-health caused by that breach is to be treated as a consequence of the dismissal leading to loss of earnings which would otherwise have been received at the full rate from the employer, such loss being attributable to action taken by the employer (para. 75)
As part of my ongoing quest to find the cheekiest legal argument of the year (see bulletin 18/5/07), the second contender is the employer in Cummings v Scholarest.
The Claimant presented an equal pay claim to the employment tribunal with an equal pay claim. Her solicitor misspelled her name on the ET1 as Mrs W.E. Cummings (it should have been Mrs W.E. Cowings). The Claimant, who had worked for the employer for 30 years, set out her place of work and address correctly.
The employer applied to strike out the claim on the basis that the Claim Form did not correctly identify the Claimant. The employment tribunal granted the application.
Quashing the decision, the EAT made it clear that there was a power to amend the name of the Claimant, and sent the case back to a different chairman with a clear steer to make a finding that it was just and equitable to allow the Claimant to amend her name on the ET1.
(any other contributions for 'cheekiest legal argument of the year' gratefully received)
The EAT has handed down judgment in the important case of TGWU v Safeway Stores. It is authority for the proposition that it will almost always be permissible to amend a Claim Form to introduce a new legal cause of action which relies on already pleaded facts, even if the new cause of action is out of time (see paras. 13 and 15).
Even if you don't have a case involving this particular point, this is a decision well worth reading for Underhill J.'s analysis and explanation of the authorities on amending Claim Forms.
This archive contains Daniel Barnett's employment law email bulletins which are posted when an email bulletin is sent out. To receive these bulletins by email you can subscribe for free.
Over 28,000 people, including solicitors, barristers, HR professionals and employment tribunal judges, receive these bulletins.
Daniel Barnett is a barrister at Outer Temple Chambers, with over 15 years' experience defending companies facing employment tribunal claims and associated commercial disputes. He is listed as a leading employment barrister in the ‘Legal 500′, and described in the Times Law Supplement as having “carved out a strong reputation”.
Daniel regularly advises and represents large and small businesses in discrimination claims, TUPE problems, team moves, removal of confidential business information, and unfair dismissal disputes. He has been appointed as employment law advisor to Acas since 2004, and is the author or co-author of seven legal textbooks.