Andruhovics v Sapient Ltd

An Employment Tribunal must give an unrepresented party such assistance as is appropriate in formulating and presenting the case, while remaining impartial. The appropriate level of assistance depends on the circumstances and allows a wide margin of judgment.

The Tribunal's function is to determine the case the parties put before it. It is not required to investigate and identify every possible unpleaded cause of action arising from the facts. Accordingly, where a claimant deliberately advances automatic unfair dismissal under section 104 of the Employment Rights Act 1996, the Tribunal need not recast it as a protected-disclosure claim under section 103A.

The claimant had worked for the respondent for less than three weeks. He brought claims of unfair dismissal and discrimination. At a preliminary hearing, the London (East) Employment Tribunal struck out unfair dismissal because he lacked two years' qualifying service. It held that his reliance on section 104 of the Employment Rights Act 1996 could not assist him because the alleged discrimination rights arose under the Equality Act 2010.

The claimant appealed. He argued that the facts supporting his proposed victimisation claim should have led the Tribunal to consider an automatically unfair dismissal claim for protected disclosure under section 103A. His remaining discrimination claims had meanwhile been dismissed by a different Tribunal after a full merits hearing. The central issue was whether the preliminary hearing Tribunal was required to identify and consider that alternative statutory basis without it having been advanced by the claimant.

1. Appeal dismissed. The Employment Tribunal did not err in law by striking out the unfair dismissal claim. The claimant had insufficient qualifying service and the statutory exception on which he expressly relied, section 104 of the Employment Rights Act 1996, did not cover alleged infringements of rights under the Equality Act 2010.

2. An Employment Tribunal should give an unrepresented litigant assistance appropriate to the formulation and presentation of the case. What is appropriate depends on the circumstances, including the party's representation, competence and understanding. The Tribunal must, however, remain impartial. It has a wide margin of judgment and its role is to determine the case the parties choose to advance, rather than to enter an inquisitorial factual and evidential exercise to find other possible claims.

3. The Tribunal had carefully identified the claimant's case from his ET1, case-management material, letter and oral representations. It took account of his self-representation, language and asserted health difficulties. Nevertheless, he had specifically particularised automatic unfair dismissal under section 104 and had not alleged that he was dismissed for whistleblowing, making a protected disclosure, disclosing information, or reporting a potential breach of legal obligation. It was therefore not incumbent on the Tribunal to recast his claim under section 103A.

4. In any event, the point was academic. At the subsequent full merits hearing, another Tribunal rejected the claimant's factual assertion that the discussion on which he relied had informed the reason for dismissal. That finding bound the claimant at this stage, and the proposed section 103A claim would necessarily have failed.

• Employment Appeal Tribunal: The appeal was dismissed in [2018] UKEAT 0031_18_1805.
• London (East) Employment Tribunal: Employment Judge Ferris struck out the claimant's unfair dismissal claim at a preliminary hearing on 27 February 2017. The judgment was sent to the parties on 13 March 2017.
• Employment Tribunal: The claimant's remaining claims under the Equality Act 2010 were later dismissed after a full merits hearing before Employment Judge Goodrich sitting with lay members. A separate appeal from that decision was rejected by the Employment Appeal Tribunal on the papers as totally without merit.