Secretary of State for Work and Pensions (Jobcentre Plus) v Constable

A claimant bringing a whistleblowing claim must identify the protected disclosure relied on with sufficient clarity for the respondent to understand the case it must meet. This ordinarily requires particulars of what was disclosed, to whom, when and how it was disclosed, and how the disclosure is alleged to have caused the dismissal. Tribunals should avoid unnecessary formalism, but procedural informality must not create injustice by requiring a party to answer allegations that have not been properly identified. A refusal to order necessary particulars, without adequate reasons, may fall outside the reasonable range of case-management decisions.

The claimant alleged that he was dismissed because he had made protected disclosures concerning the administration of Jobseekers Allowance. His originating application described workplace events and alleged pressure to sign claimants who were not actively seeking work, but did not clearly identify a specific disclosure or explain how it led to his dismissal.

The respondent applied for further and better particulars and for a case management discussion. The Employment Tribunal refused both requests by letters dated 28 October and 11 December 2009. The respondent appealed, submitting that it could not identify the relevant witnesses or documents without knowing the case to be met.

1. Appeal allowed. The Employment Appeal Tribunal, sitting alone, ordered the claimant to provide further and better particulars of his claim.
2. A whistleblowing claimant must give sufficient particulars to identify the protected disclosure relied on. The necessary particulars included:
   • what the protected disclosure was;
   • to whom, when and how it was made; and
   • how the disclosure was alleged to have led to the dismissal.
3. The respondent was entitled to know the case it had to meet, including which witnesses to call and what documents would be relevant. Requiring it to prepare evidence covering the whole history of the claimant’s employment, in the hope that the relevant disclosure might emerge at the hearing, would be time-consuming, costly and unfair.
4. The need for particulars was consistent with the approach in White v University of Manchester [1976] ICR 419: tribunals should avoid unnecessary legalism, but not at the expense of injustice caused by allegations being unclear in advance. The Employment Tribunal’s decision fell outside the reasonable ambit described in Noorani v Merseyside TEC Limited [1999] IRLR 184.
5. The Employment Tribunal had also failed to give adequate reasons for refusing the application. The matter was dealt with by making the order for particulars described above.

• Employment Appeal Tribunal: allowed the respondent’s appeal against the Employment Tribunal’s refusal, communicated on 11 December 2009, to order further particulars or convene a case management discussion.