Employment Cases Update

British Gas v Decosta and others UKEAT/0280/19/JOJ

Date published: 08/06/2020

Appeal against the ET’s decision allowing amendments to the Claimants’ claims. Appeal allowed.

The Claimants worked for the Respondent and, when their roles changed over a period of time, they first raised grievances and then started claims in the ET. At that time, the Claimants remained employed and there was no suggestion that they regarded themselves as having been dismissed, so the Respondent argued that the ET had no jurisdiction. The Claimants sought to amend their claims to ones of unfair dismissal, in reliance on Hogg v Dover College [1990] ICR 39, and the Second and Third Claimants resigned, thereby arguably having claims of constructive unfair dismissal. At the hearing of the application to amend, the ET gave leave for the amendment to raise the constructive unfair dismissal claims, which were made within three months of the constructive dismissal, and it allowed amendments to the Dover College claims (which were out of time) on the basis that the same material would need to be reviewed as for the constructive unfair dismissal claims. The Respondent appealed, contending that the ET had failed to properly exercise its discretion.

The EAT held that the ET had simply assumed that, because the new constructive unfair dismissal claims were made in time, leave to amend the claim forms should automatically be given, and that the ET had failed to consider, in relation to the Dover College claims (which were significantly out of time), the question of whether or not an extension would be allowed; further, the ET did not carry out an overall assessment of the balance of prejudice in the whole context of the case. Accordingly, the matter would be remitted to a fresh ET to decide what, if any, amendments to allow.

Read the full text of the judgment on BAILII or download the file by clicking the link below.