Dorrington v Tower Hamlets GP Care Group CIC

A claim that a dismissal was automatically unfair because of protected disclosures under section 103A of the Employment Rights Act 1996 is a claim for unfair dismissal. The protected disclosures are the alleged reason for the dismissal; they are not a separate cause of action.

Where an in-time ET1 already advances unfair dismissal, later material identifying the disclosures relied on may amount to necessary particularisation rather than an amendment introducing a new, time-barred claim. A tribunal must construe an unrepresented claimant’s pleadings fairly and give focused directions for particulars. A distinct detriment claim may, however, require amendment and separate consideration of limitation and jurisdiction.

The Claimant was dismissed after a break in continuity of employment which prevented her from pursuing an ordinary unfair dismissal claim. Her ET1 was presented in time, identified unfair dismissal, and included material referring to concerns raised with the Respondent. She later made clear that she alleged dismissal because of whistleblowing.

At preliminary hearings, the Employment Tribunal held that she lacked sufficient service for ordinary unfair dismissal. It then treated her clarification of a protected-disclosure dismissal case as an application to amend, refused it as a new and substantially out-of-time cause of action, and struck out the protected-disclosure claim.

The appeal concerned whether the claim had always included an in-time claim of unfair dismissal under section 103A of the Employment Rights Act 1996, or whether it was a new claim requiring amendment.

1. Appeal allowed. The Employment Tribunal’s judgment was set aside. The Claimant had presented an in-time claim for unfair dismissal; the tribunal erred by treating her reliance on protected disclosures as a proposed new cause of action.

2. The statutory cause of action is unfair dismissal. Section 103A of the Employment Rights Act 1996 supplies a basis on which an employee may establish that a dismissal was unfair: the protected disclosure must be the reason, or principal reason, for dismissal. Reliance on protected disclosures is therefore not, without more, a separate cause of action.

3. The ET1, read with its addendum and fairly construed as the work of an unrepresented litigant, already alleged unfair dismissal. The material subsequently supplied made an unequivocal assertion that whistleblowing was the reason for dismissal and identified disclosures corresponding substantially with those later advanced at the preliminary hearing. The defect was lack of particularisation, not lateness or the absence of a claim.

4. The Tribunal should have made case-management orders requiring the Claimant to specify the alleged disclosures, including when, how and to whom they were made; why they met section 43B(1); and why they were the principal reasons for dismissal. It could then determine any jurisdictional issues and whether the claim should proceed.

5. The Claimant’s asserted detriment complaints were not decided. If pursued, the Employment Tribunal may consider whether they require amendment, whether a limitation defence arises, and whether they fall within its jurisdiction. The appeal judgment made further particularisation and disclosure directions and remitted the matter for case management.

• Employment Appeal Tribunal: Allowed the appeal in [2020] UKEAT 0308_19_1211, set aside the Employment Tribunal judgment, and remitted the claim for further case management.

• Employment Tribunal, East London Hearing Centre: In May 2019, struck out the Claimant’s protected-disclosure claim and refused permission to amend. A reconsideration application was refused on 5 December 2019.