T Amber v West Yorkshire Fire and Rescue Service

When considering strike-out or deposit applications, an employment tribunal must first identify the claim from the pleadings and other material. It must not require a litigant in person to explain the case only under the pressure of a hearing.

The guidance in Cox on analysing claims applies to deposit orders as well as strike-out applications. The different thresholds concern the strength of the claim, not the process for identifying and evaluating it. A tribunal should not resolve significant factual disputes at an interlocutory hearing without a proper evidential basis.

The claimant presented proceedings while still employed by the respondent. Her extensive claim material referred to whistleblowing detriments, race discrimination and harassment. A case-management hearing had directed a Scott schedule and a preliminary hearing on time limits.

At the preliminary hearing, the schedule was unreadable, there was no bundle, list of issues, amended response or written submissions. Employment Judge Lancaster struck out all whistleblowing detriment complaints as out of time and made deposit orders concerning two harassment allegations.

The claimant appealed, contending that her pleaded material identified detriments in June and August 2021 and that the judge had impermissibly resolved disputed factual matters when making the deposit orders.

1. Appeal allowed. The whistleblowing detriment claim was wrongly struck out as out of time. The pleaded material identified an alleged detriment in August 2021, which fell within the relevant time limit. The Employment Judge had considered only the claimant's pressured oral explanation and had not sufficiently examined the pleaded case.

2. There was also a factual dispute about whether the disciplinary process ended before 2 June 2021. The claimant contended that an informal performance-improvement plan remained in force until that date. That dispute could not be determined by the Employment Appeal Tribunal and required resolution by the Employment Tribunal.

3. The approach in Cox v Adecco Group [2021] ICR 1307 applies to applications for deposits under rule 39 as well as to strike-out applications under rule 37. Although the threshold for a deposit is lower, the tribunal must identify the allegations and issues from the pleadings and relevant documents. It must take proper account of the difficulty a litigant in person may have in explaining a written case during a hearing.

4. The deposit orders were therefore erroneous. The judge had made assessments on disputed facts without documents, evidence or a pleaded defence beyond holding grounds. Whether the publication of personal information was deliberate or race-related, and whether Mr Dixon was independent, required proper consideration by the Employment Tribunal.

5. The matter was remitted to the Regional Employment Judge for allocation for a rehearing of case management.

• Employment Appeal Tribunal: Allowed the claimant's appeal and remitted the matter to the Regional Employment Judge for allocation for rehearing of case management: [2024] EAT 146.
• Employment Tribunal: Employment Judge Lancaster struck out the whistleblowing detriment claim as out of time and made deposit orders on aspects of the race discrimination and harassment claims.