Mechkarov v Citibank, NA

An ET1 is construed generously and as a whole. It contains an effective complaint where it identifies the act complained of and the nature of the complaint. Broad claims may be clarified by further information, but an amendment is required where those essentials are absent.

A public interest disclosure detriment claim must identify, at least broadly, the alleged disclosure, the detriment, and the alleged causal link between them. A tick in a whistleblowing-related box is not decisive. In deciding an amendment application, the tribunal may consider whether it introduces a new and time-barred claim, the delay, and the relative hardship and prejudice.

The claimant brought Employment Tribunal proceedings following the termination of his employment. His original ET1 included claims of race discrimination and victimisation. It did not expressly identify a public interest disclosure detriment claim, although he had ticked a box concerning protected disclosures.

At case management, Employment Judge Foxwell held that the ET1 did not contain such a claim. The Judge later refused permission to amend the ET1 to add one. The proposed claim concerned alleged disclosures about management practices, transaction execution and risk-weighted assets, and alleged detriments after those disclosures.

The claimant appealed against the ruling on the ET1 and sought a Rule 3(10) hearing concerning the refusal of amendment. The central issues were whether the ET1 already advanced a public interest disclosure detriment complaint and whether the refusal of amendment disclosed an error of law.

1. Appeal and Rule 3(10) application dismissed. The Employment Judge made no error of law in deciding that the ET1 did not include a claim for detriment for making a protected disclosure.

2. An ET1 must be read generously and as a whole. It need not use a lawyer’s label. It must, however, identify the act complained of and the nature of the complaint. For a public interest disclosure detriment claim, this requires identification, even in broad terms, of the alleged disclosure, the detriment, and the link between them. If those matters are present, particulars may supply detail; if they are absent, amendment is required.

3. The ET1 did not make that link. Its references to complaints formed part of a narrative concerning health and personal injury, and did not identify the claimant’s alleged protected disclosures or allege detrimental treatment because of them. The tick in box 10 was not determinative. The proposed whistleblowing case also rested on materially different allegations from the existing victimisation claim under the Equality Act 2010.

4. The proposed amendment introduced a new cause of action at the serious end of relabelling. The Employment Judge was entitled to consider the applicable limitation position, delay and prejudice when applying the amendment principles in Selkent. The new allegations were advanced long after the primary time limit and introduced potentially wide-ranging issues concerning the respondent’s dealings with customers. The Judge permissibly found that the respondent’s prejudice outweighed the claimant’s sense of injustice.

• Employment Appeal Tribunal: The appeal against Employment Judge Foxwell’s March 2017 ruling, and the Rule 3(10) application concerning the May 2017 refusal of amendment, were dismissed.
• Employment Tribunal: Employment Judge Foxwell held that the ET1 did not contain a public interest disclosure detriment claim and refused permission to amend the claim form to add one.