E Macfarlane v Commissioners of Police of the Metropolis
[2023] EAT 111
D Cox v Adecco UK Limited & Ors
30 August 2023
[2023] EAT 105
Employment Appeal Tribunal
A worker sued his employers for unfair treatment after reporting wrongdoing. He tried to add more details to his case later, but the judge refused some of his changes. A higher court agreed with the judge on most points, but said the judge should reconsider two other changes because they didn't properly account for the previous history of the case and the potential difficulty of getting evidence.
Key Facts
- •Mr Cox claimed whistleblowing detriment and other issues against Adecco UK Limited, Giant Professional Limited, and London Borough of Croydon.
- •His claim, lodged in August 2018, was amended in August 2021, four months after a previous appeal.
- •The Employment Tribunal (ET) allowed some amendments but refused six, leading to this appeal.
- •The main issue revolved around whether certain oral disclosures constituted protected disclosures under section 47B of the Employment Rights Act 1996.
- •The appeal concerned amendments relating to oral disclosures to various individuals and the cancellation of assignments.
Legal Principles
Protected disclosure requires conveying facts, not mere opinion.
Cavendish Munro Professional Risk Management Ltd v Geduld [2010] ICR 325
Qualifying disclosure must be considered in context of entire evidence, including previous history.
Kilraine v London Borough of Wandsworth [2018] EWCA Civ 1436; Royal Cornwall Hospitals NHS Trust v Watkinson UKEAT/0378/10
ET has broad discretion to amend claims, considering injustice/hardship to all parties.
Selkent Bus Co Ltd v Moore [1996] ICR 836; Cocking v Sandhurst (Stationers) Ltd [1974] ICR 650
Focus on practical consequences of allowing/refusing amendment, considering the balance of justice.
Abercrombie v Aga Rangemaster Limited [2013] EWCA Civ 1148; Vaughan v Modality Partnership [2021] IRLR 97 EAT
Appellate court should be slow to overturn ET decisions applying correct legal principles unless clear error.
DPP Law Ltd v Greenberg [2021] EWCA Civ 672
Outcomes
Appeal dismissed for amendments 5, 7, 8, and paragraph 10 amendment.
ET correctly applied legal test, considered relevant factors, and reached permissible conclusions. Amendments introduced new facts or were not reasonably anticipated.
Appeal allowed for amendment 6 and paragraph 33 amendment.
ET failed to consider amendment 6 in the context of previous history and didn't adequately engage with practical considerations regarding the balance of hardship.