Do I need a new claim? (wrongful dismissal/breach of contract)

[voicer]

Hi all,

Happy New Year to everyone! My query is fairly simple and would appreciate some useful advice. At the preliminary hearing, the judge said that if I wish to, I can amend my claim by a certain date.

In the original ET claim, I claimed breach of contract leading to constructive unfair dismissal. Hence, the ET accepted my heads of claim as unfair dismissal and breach of contract.

As I am a litigant in person, I have now done some more research and it appears that I could also have a claim for wrongful dismissal (i.e. I was terminated ahead of the notice period through a PILON which the contract made no provision for and this was disguised as giving me additional annual leave to stay away after I decided to resign).

Am I right to assume that I do not need to amend the claim to include wrongful dismissal as this has already been captured in the 'breach of contract' claim? Or would a request to include wrongful dismissal still be classed as an amendment to the original ET1?

Any advice would be much appreciated as ideally, I do not wish to amend the claim if I can avoid it.

Thank you!

[ULA]

In your ET1 under section 8.1 did you tick the box for your claim being "I was unfairly dismissed (including constructive dismissal)"? Did you detail what the breach of contract was about that led t0 constructive unfair dismissal? If so did that include detailing that you were "terminated ahead of the notice period through a PILON which the contract made no provision for and this was disguised as giving me additional annual leave to stay away after I decided to resign"?

[voicer]

Thank you Ula, yes I did all of the above, the only thing I didn't do was state wrongful dismissal as one of the claims. This is because I thought the issue with the PILON/notice was part of the constructive unfair dismissal claim. If I do add wrongful dismissal as a claim, I will not need to add any further details as it would be covered by the details already given in the ET1.

However, I did originally state 'breach of contract' as a claim.

[ULA]

Did you detail the breach of contract i.e what consituted the breach or did you just say breach of contract without any specific detail?

[voicer]

I went into a fair bit of detail (in fact the judge said so himself) by explaining the breach of contract which resulted in an ultimate loss of mutual trust and confidence.

However, in terms of the PILON I only mentioned that I was offered this to leave ahead of the notice period and I didn't mention that there was no provision in the contract to offer this but the respondent did confiscate my P45 once it realised that I was that I was taking it to the ET by asking me to return it saying it had been issued by mistake and that they would issue a new one which later they admitted was not possible. As they owed me some money I accepted to return the P45 but on reflection I shouldn't have done this as they are now disputing the effective date of termination which they claim was wrong according to the P45.

Only the underlined parts are mentioned in the original ET1.

Thanks!

[ULA]

I always like "belt and braces" since on the ET1 you are required to detail all aspects of the claim and from that perspective it would have been better to have mentioned that there was no provision in the contract to offer PILON. However you have mentioned PILON and you may be able to bring this point out in your witness statement WS.

Has the judge given you leave to amend your ET1?

[voicer]

Yes, I can amend before the beginning of February but I’m a bit reluctant as the respondent will object (they’ve already hinted at that) and I would rather leave fighting them at the main hearing. If I don’t amend, wouldn’t the ET have to consider if the contract allowed the PILON as one of the tests to see if the dismissal was fair?

I think it takes us back to the point of whether wrongful dismissal also occurred which I believe it did and that was the breach of contract which I’ve already pleaded but not pleaded wrongful dismissal as a claim.

[ULA]

Take you point on "picking your battles".

I therefore suggest that when you cover this PILON point as part of your WS you state that "this amounted to a wrongul dismissal as you were dismissed in breach of contract". Hopefully that should cover the specifics you need to get across to the Tribunal.

[voicer]

Thanks Ula, yeah I certainly do want to win the 'war' and not some pointless 'battles' along the way, that'll be fairly futile in my view. However, as I still have time to amend and I'm not that concerned either way. But do you think it might be worth amending the claim now and say I want to claim wrongful dismissal too? The particulars of the claim would not need changing that much, but rather expand and add factual details to it.

The thing that I didn't mention was that the judge asked me to re-structure my claim and set it in a chronological order and said I'm free to amend if I wish to but will have to apply in the normal way (i.e. request a formal application).

In the re-structuring of my claim I did slightly 'expand' on the points, e.g. where I said that I was terminated by a PILON whereas I did not initially mention that this was done through a meeting, I mentioned in the chronological order when did the meeting take place.

My reasoning is that there is no amendment as I have simply added more details to a claim already pleaded (i.e. that I was terminated through a PILON and this was a breach of contract). What I'm struggling to understand is whether giving further or expanding on the details to a claim already pleaded consists of an amendment.

E.g. If you said that the manager told you not to return the next day initially, then said at a later stage in the chronological detail submitted to the ET that on this date, the manager told you not to return because they did not believe you could work in their team again without causing issues.

[ULA]

If you have already amended your claim as required by the Judge to correctly set out the events in chronological order and in doing so have expanded on the issue around PILON then this should be fine.

In any case if you are making claims for both unfair and wrongful dismissal, any money received under one will cancel out the same amount received under the other claim. This is to stop the claimant receiving double compensation.

[voicer]

Thanks Ula, when the judge said to restructure my claim, he meant using the details already in the ET1 as although he didn't explicitly say it, I think he found the ET1 a bit narrative which I'm aware ET judges are not keen on. What he said was that I had given a lot of information in and subsequent to the ET1 and that they must be consolidated into one clear format.

Anyway, that aside, there is a reason why I want to include the 'wrongful dismissal' claim. Reason being that after I decided to resign, about a week later, a pending job offer had failed to materialise (I believe there was something mentioned by an employee of the respondent to the prospective recruiter, but I cannot prove it).

This meant that I could have potentially been out of a job for at least 3 months which I couldn't afford, so I asked the respondent if I could withdraw my notice and they refused. However, they are now arguing that I accepted the repudiatory breach because I asked to withdraw the notice, so it could be that they successfully argue that I rescinded the contract; hence a constructive dismissal claim could fail.

Therefore, it could be that I have to rely on the PILON they offered me to leave ahead of the notice period (to find more time to apply for a new job) after refusing the withdrawal of notice as proof of dismissal/breach of contract.

Sorry, it is more complicated than I first made out.

[ULA]

Sorry but you need to clarify a few points for me. I understand that your claim is for construtive unfair dismissal (aside from any wrongful dismissal claim) i.e. your employer left you no choice, due to something they had done but to resign. The seriousness of what happened meant that this was not something you felt could be resolved and was either a serious incident or a series of things that were serious when taken together.

If you resigned under this situation why would you consider withdrawing your resignation? The Tribunal will have a hard time understanding why the siutation was so bad you felt you had no alternative to resign but then when a job offer did not materialise you asked to withdraw your resignation?

Did you resign because of the seriousness of what happened or because you had another job to go to?

[voicer]

Hi Ula

Basically, I resigned after raising a grievance against a fellow employee which the respondent failed to take up but they quickly to took up his which was only to cover himself. We had a drunken brawl outside of work whilst meeting up with a former colleague, but we already had a tense relationship prior to the incident in relation to another colleague we were both involved with outside of work.

At the relevant event there were quite a few work colleagues present, so the respondent treated as an 'in-work' incident although it happened well outside working hours and it wasn't a Christmas-do or anything organised by work. There were physical contact by both of us but the colleague who made the complaint lied about why he made the first physical contact stating he was protecting others and the respondent did not speak to 'others' to confirm this, they were very selective of who they spoke to and it was largely people who couldn't have possibly seen how the brawl started. The relevant colleague has since been promoted.

I said to the respondent that if they take no action from my complaints, then I will feel I had no option but to resign and they pushed for this, even offering to shorten the notice period. I eventually resigned after securing another job but when this offer failed to materialise, to limit my loss, I decided to withdraw the resignation and the respondent refused and instead offered me a (disguised) PILON to leave, saying it will give me time to find another job.

I'm of a mixed-race background and have also claimed discrimination which the judge accepted that there is a reasonable chance of success at the first preliminary but the respondent is disputing the constructive dismissal claim.

[ULA]

I am not an employment solicitor, however given the information that you are now providing I have concerns over the constructive dismissal part of your claim. What was the timescale between you saying "to the respondent that if they take no action from my complaints, then I will feel I had no option but to resign" and you "eventually" resigning and did you only resign once you had secured another job?

[voicer]

In the last instance it was a day but it was resignation with notice of 2 months. I had made several requests for them to take action from my complaint and said that the situation was leaving me with no option but to resign. When I failed to go through with it, they asked me why I hadn't done so and I later discovered that they had purposefully delayed the outcome of their own investigation hoping I'd resign to save them having to investigate my complaint as they saw it as extra unnecessary work since I had expressed a wish to resign earlier on in the process (this was discovered in a document from a subject access request between managers and HR). When I asked to withdraw the notice, HR told managers it would lead to complications and encouraged them not allow it but offered a PILON instead to avoid further issues arising (again from a subject access request).