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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> De Jong v. Silvertech Ltd [2001] UKEAT 1499_00_1306 (13 June 2001) URL: http://www.bailii.org/uk/cases/UKEAT/2001/1499_00_1306.html Cite as: [2001] UKEAT 1499__1306, [2001] UKEAT 1499_00_1306

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APPEARANCES

 

For the Appellant	THE APPELLANT In Person


 


MR JUSTICE NELSON

1. This is an Appeal against the decision of the Brighton Employment Tribunal on 29 September 2000 dismissing the Appellant's application to amend the Originating Application that he had put in based on a claim for wrongful dismissal to include a claim for unfair dismissal.
2. The Applicant had it appears been advised that as he was over 60 and had not worked for two years with the Respondents he could not bring a claim for unfair dismissal so he restricted his claim to one of wrongful dismissal taking what he thought was the route which would enable him to put his full claim before the Tribunal.
3. During the course of proceedings that claim for wrongful dismissal was settled and withdrawn before the Employment Tribunal but an application was made to add a claim for unfair dismissal. This was made on the date of the hearing, the 29 September and refused. When that application was made it was of course well out of time. The Appellant alleges that the Employment Tribunal made in effect three errors of law.
4. Firstly, it did not rule on whether section 94 of the Employment Act 1996 applied in view of the Applicant's contention that the Respondent did not have a common retirement age and secondly the Tribunal did not rule on whether the qualifying period had been reduced from two years to one year in the amendment of section 108 of the Employment Act 1996. Thirdly, he says it wrongly declined to allow the addition of the unfair dismissal claim when as he emphasised before us today the factual basis of such a claim was already before them in effect under the wrongful dismissal claim which was there and in time.
5. The Employment Tribunal also, Mr De Jong says in his grounds, erred in not taking enough time to prepare the case by reading of the documents. Furthermore they asked the Respondent whether they would consent to an amendment to add a claim for unfair dismissal when they should have made their own minds up.
6. Today, Mr De Jong has emphasised those points and his unhappiness of the circumstances of the termination of his employment and he has told us that he compromised the wrongful dismissal claim before the Tribunal when he was not fully aware of what in fact was happening. He submits that the approach of the Employment Tribunal amounts to a procedural irregularity and that he has been substantially prejudiced by their decision whereas his employers have not.
7. We, having considered the written material and the oral submissions made to us today by Mr De Jong are satisfied that none of the matters put before us are of valid grounds for allowing any appeal. The Employment Tribunal assumed, for the purposes of the application to add the additional claim for unfair dismissal, that the Applicant in spite of his age and length of service was not procedurally barred from making such a claim by stating in their decision that a misunderstanding of the law or misleading advice was not a sufficient reason for the Tribunal to exercise its discretion by extending the time limit for making a claim.
8. It was not necessary for the purpose of considering the application to amend the originating application out of time for the Employment Tribunal to make any findings on section 108 or section 94. There is no basis for saying that the Employment Tribunal was wrong in the manner in which it had exercised its discretion. They made no error of law in the manner in which they dealt with it.
9. The receipt of misleading advice or ignorance of the law is not a sufficient reason and there is no reason to suppose that their preparation of the matter was anything other than entirely appropriate for the task that they were performing. To ask the Respondents if they objected to the proposed amendment was an entirely valid approach and it did not fetter their discretion in any way. We are entirely satisfied that there is no proper basis for saying that the Employment Tribunal in refusing to permit the addition of an unfair dismissal claim out of time was in any way wrong and we therefore dismiss Mr De Jong's appeal.