D Cox v Adecco UK Limited & Ors
[2023] EAT 105
W v Interserve Group Ltd & Ors
26 March 2024
[2024] EAT 70
Employment Appeal Tribunal
An employee claimed unfair dismissal for whistleblowing. The court initially refused to let them add details about past whistleblowing to their case. The higher court said the employee had already basically mentioned the important parts, even if they weren't perfectly clear. So the higher court added those parts back into the case, but the original case still needs a full hearing.
Key Facts
- •The claimant brought complaints of detrimental treatment and unfair dismissal due to protected disclosures.
- •The Employment Tribunal refused the claimant's application to amend the claim to include additional protected disclosures.
- •The claimant appealed this decision to the EAT.
- •The respondents did not appear or defend the appeal.
- •The claimant claimed protected disclosures were made to a previous employer (Highways England and KPMG) in 2018-2019.
- •The claimant argued that the respondents knew about these prior disclosures, evidenced by being referred to as a 'whistleblower' at a meeting.
- •The EAT considered whether the original particulars of claim sufficiently raised the prior disclosures.
Legal Principles
Particulars of claim should be read fairly as a whole, bearing in mind that a litigant in person may not identify all of the details of their claim in the way that a lawyer would. The essential factual allegations must be made, such that the tribunal can see that all of the essential elements of the cause of action have been set out, even if further more detailed particulars of those factual allegations might be needed.
EAT case law and general principles of claim formulation
The Employment Rights Act 1996, sections 43B, 47B and 103A, govern protected disclosures.
Employment Rights Act 1996
The test for whether an amendment should be allowed considers prejudice to the respondent, the significance of the amendment, and the stage of the proceedings.
Vaughan v Modality Limited UKEAT/0147/20 and Choudhury v Cerberus Security and Monitoring Services Limited (2002) EAT 172
Outcomes
The EAT allowed the appeal.
The EAT found the Employment Tribunal erred in determining that the claimant's original particulars of claim did not sufficiently raise the additional protected disclosures. The EAT held that, on a fair reading, the particulars did sufficiently cover the essential elements, even if further details were needed.
The EAT directed that the additional protected disclosures be added to the list of issues for trial.
The EAT found the claimant's original claim, while needing further particulars, sufficiently raised the issue of prior protected disclosures to Highways England and KPMG. The additional information provided clarified the claimant's case.