In Fong v Montgomery & Ors (Raemoir Trout Fishery) the EAT held that a tribunal was wrong to refuse permission to a litigant in person permission to amend his claim. The facts of his claim made clear what he was complaining about. The tribunal should have included a claim for automatic unfair dismissal.
Mr Fong’s ET1 listed complaints including unfair dismissal and underpayment of wages. He referred to a mental impairment he said was caused by the employer and said that he had witnessed the employer undertaking illegal activities such as tax evasion and non-payment of minimum wages. He alleged that in trying to discuss the abuse he had been subjected to, he was summarily dismissed. He did not claim whistleblowing, but did ask that for the information in the claim form be forwarded to a relevant regulator. The employer denied that Mr Fong had been an employee and said that he had been dismissed for inappropriate conduct.
Attempts to clarify the issues in the claim failed. Over a year after the claim was issued, Mr Fong sent the tribunal a document in which he made clear that he had repeatedly made representations about shortfalls in pay, minimum wage failures and described his dismissal as being because he asserted a statutory right. The first instance tribunal judge characterised this as an amendment and refused to allow it. Mr Fong appealed.
The EAT held that the tribunal should have been more proactive at the preliminary hearing of the case. The case brought by Mr Fong in his ET1 was that he was dismissed when trying to discuss what he termed abuse with his employer. All that was needed was a re-labelling of the claim as automatic unfair dismissal; no reasonable tribunal could have concluded that these claims were new. If there was doubt about whether using the word abuse included allegations of financial wrongdoing (i.e. failure to pay the National Minimum Wage) and that he was dismissed when he continued to raise these concerns, this was removed by the further information he eventually provided.
As the Equal Treatment Bench Book makes clear, litigants in person may make basic errors including describing their case in non-legal terms and failing to apply the correct legal label. It is incumbent on tribunals during case management to get involved in clarifying the issues.
