Bullcock v NHS Blood And Transport Trust

A tribunal must not strike out a timely pleaded detriment claim by treating express factual allegations in the claim form as mere narrative. Where the alleged acts occurred within the limitation period, the claim should proceed.

Nor should a tribunal determine, on a strike-out application without oral evidence, contested factual issues about whether an employee’s reassignment was a contractual redeployment or terminated the original contract. Such issues may require a full hearing.

On an appeal, the costs discretion under the Employment Appeal Tribunal Rules 1993 permits a reduced fee award where success is partial and the appellant’s lack of clarity contributed to the need for the appeal.

The appellant had been dismissed, brought a first Employment Tribunal claim, and later succeeded in an internal disciplinary appeal. He was reinstated with a final written warning.

After returning to work on 1 October 2013, he alleged that he was not returned to his former managerial post, was assigned temporary work, and was placed on a redeployment register. He presented a second Tribunal claim on 24 December 2013. The Employment Tribunal struck out the claims as out of time and, in substance, treated the alleged October events as incapable of amounting to a dismissal.

The appeal concerned whether the detriment and dismissal claims were timely and should have been struck out, and the appropriate costs order following the appeal.

1. Appeal allowed. The Tribunal erred in striking out the claims based on the appellant’s alleged removal from his former job and placement on a redeployment register. The claim form expressly described those events, which occurred on or after 1 October 2013. The claim presented on 24 December 2013 was therefore within three months. The allegations were not merely narrative material.

2. The pleaded detriments required clearer formulation. The appellant was directed to amend paragraphs 4.1 and 4.2 so that they identified the alleged detriments as the failure to return him to his original job and placement on the redeployment register, rather than characterising them as a disciplinary process or a fixed-term contract.

3. The Tribunal also erred in striking out the claim that the October events amounted to a dismissal for protected-disclosure purposes under the Employment Rights Act 1996. The Tribunal had not found that the transfer or redeployment was in fact exercised under a contractual power. Without oral evidence, it was perverse to resolve difficult factual questions about the power exercised and the reason for its exercise. The Tribunal’s reasons also gave insufficiently clear treatment to whether the case fell to be characterised as Hogg or Roberts.

4. The Appeal Tribunal decided only that the claims should proceed and that the Employment Tribunal had jurisdiction to hear them. It made no decision on their ultimate merits.

5. Under Rule 34A of the Employment Appeal Tribunal Rules 1993, a successful appellant would ordinarily expect some fee costs, but the discretion allowed a substantial reduction. The appellant had failed on a separate first appeal and his lack of clarity had contributed to the second appeal. The respondent was ordered to pay £400 towards the £1,600 appeal fee.

• Employment Appeal Tribunal: Allowed the appeal from Employment Judge Pitt’s decision of 24 December 2013 striking out parts of the second claim. The claims concerning the October 2013 detriments and alleged dismissal were permitted to proceed.
• Employment Tribunal: The first claim had previously been struck out and amendment refused. Permission to appeal those decisions was refused at a preliminary hearing; that earlier appeal was unsuccessful.