Amending alleged reason for unfair dismissal did not amount to bringing a new claim


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The employment Appeal Tribunal (EAT) has held in Pruzhanskaya v International Trade and Exhibitors (JV) that an application to change the principle reason put forward for an allegedly unfair dismissal should not be treated as a new, and out of time, claim.

The claimant brought a claim on 26 October 2016 for unfair dismissal, setting out criticisms of her employer's redundancy decision and process. On 24 May 2017 (now acting without legal assistance) she sought to amend her claim to allege that her dismissal was due to whistleblowing. She explained that she had wished to add this claim at the outset, but that her former legal adviser had advised her incorrectly.

At first instance the Employment Judge refused the claimant's application to amend her claim, but the EAT overturned the Employment Judge's decision. The EAT held that an application to amend an existing in-time complaint of unfair dismissal to allege a new principal reason for dismissal does not involve bringing a new complaint outside the time limit. This was because, although there are various potential unfair reasons for dismissal, there is only one right not to be unfairly dismissed under section 94 ERA 1996, and only one related time limit provision.

Take note: The decision in Pruzhanskaya clarifies that where a claimant applies to amend an in-time ordinary unfair dismissal claim to allege that it is automatically unfair, the claim is not to be treated as out of time. However, the tribunal will still have to exercise its discretion taking into account the injustice and hardship involved in refusing an amendment as well as that involved in granting it.

This article is taken from HR Law - August 2018.

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