According to a decision of the Employment Appeal Tribunal (EAT) in Ministry of Defence v Dixon, claimants can validly amend their initial claim forms (ET1) using case management procedures, even if it introduces another cause of action that arose after the first ET1 was lodged.
Ms Dixon worked on a series of one-year fixed-term contracts but prior to the end of the fourth contract on 31 August 2016, she was given notice by the MoD in March that it would come to an end on that date. This was confirmed by letter in July. On 1 August, she lodged a claim for a declaration of permanent status (the first ET1). She did not tick the box stating that she was claiming unfair dismissal (as she had not yet been dismissed), but instead ticked the boxes relating to unfair dismissal remedies (on the basis that she would have been dismissed by the time of the tribunal hearing).
A few days before the case management preliminary hearing in October 2016, she stated on the tribunal case management questionnaire that she wanted to amend her ET1 to include a complaint of unfair dismissal. At that stage the MoD did not try to argue that her complaint was being presented prematurely. At the hearing the judge said she could assume her first tribunal claim included a valid complaint of unfair dismissal and the MoD made no objection. However, in order to make her claim clear, Ms Dixon lodged a second ET1 which included a complaint of unfair dismissal.
Shortly after that, the MoD argued that the tribunal had no jurisdiction to hear the case as Ms Dixon had not been dismissed when she lodged her first ET1. Crucially, this application was made after the time limit for making a complaint of unfair dismissal had passed.
The prematurity problem
The main issue to resolve was whether Ms Dixon had become a permanent employee by the end of the fourth fixed term or not. If she had, her dismissal would not have arisen from the expiration of a fixed-time contract and the notice given by the MoD in March 2016 meant she could rely on section 111(3) of the Employment Rights Act (ERA). This allows tribunals to consider complaints that are presented after notice of termination but before the effective date of termination.
If, on the other hand, she had not become a permanent employee, she could not rely on section 111(3) and the first claim form would have been lodged prematurely. In this circumstance, the dismissal would have arisen from the termination of a fixed-term contract by the effluxion of time and therefore no notice was required.
The tribunal accepted that, although Ms Dixon had never intended to include a claim of unfair dismissal in her first ET1, she could rely on the letter sent to her by the MoD as notice of dismissal and thus the tribunal had jurisdiction to hear the claim by virtue of section 113 ERA. Alternatively, given the complexity of the procedural history in this case, time should be extended to allow it to be heard.
The EAT held that the tribunal was wrong to accept the letter from the MoD as notice of dismissal. Instead her contract terminated by effluxion of time, after she had lodged her first ET1.
However, the EAT held that the tribunal had not seemed to consider her amendment to the first ET1 which was validly made. Although the amendment would introduce a cause of action that had arisen only after the first ET1 was lodged, that was not fatal to her claim.
It is worth noting that Ms Dixon was a litigant in person (in other words, she was representing herself) and had been misdirected by both the judge and the Ministry of Defence, which probably persuaded the EAT to allow the claim. In addition, the second ET1 had been submitted in time so no jurisdictional issues arose.