Liliana Vassallo v Mizuho International PLC & Anor

On an application to amend, an Employment Tribunal may find that proposed claims could and should have been advanced earlier where a represented claimant presented a claim form omitting them, despite an earlier draft referring to whistleblowing. The tribunal may reject an explanation for the omission after considering the material and submissions before it.

The tribunal is not required to undertake an inquisitorial enquiry into evidence which a represented party could have chosen to adduce. A claimant who relies on the circumstances in which former solicitors presented a claim form must decide whether to waive privilege and provide evidence. An appeal confined to findings unsupported by evidence or founded on speculation does not permit a wider challenge to omitted findings or the weight given in the balance of injustice.

The claimant had presented claims for breach of contract, indirect associative disability discrimination and an alleged failure to comply with the ACAS Code. She later applied to amend to add whistleblowing detriment, automatic unfair dismissal for protected disclosures, and indirect associative sex discrimination.

Employment Judge Plowright refused the amendments on 19 December 2023. He found that an earlier, unpresented version of the claim form referred to whistleblowing, and that an informed decision had been made not to pursue such claims when the presented form was filed. He also held that the balance of injustice favoured the respondents.

After reconsideration was refused, the claimant appealed. Permission was confined to whether the Employment Judge's findings lacked evidential support or rested on erroneous assumptions.

1. Appeal dismissed. The Employment Judge made no error of law in refusing the amendment application.

2. The Employment Judge was entitled to infer that consideration had been given to whistleblowing claims. The material showed that an earlier version of the claim form contained such a claim, whereas the version presented to the Tribunal did not. The Judge was entitled to reject the claimant's explanation that the claims could not have been advanced earlier, notwithstanding her later reliance on the respondents’ response and the alleged reaction to her email of 28 September 2022.

3. The Judge had considered the distinction between a whistleblowing detriment claim and an automatically unfair dismissal claim. The contention that he had failed to do so was outside the permitted grounds and, in any event, was factually unsustainable.

4. The claimant’s broader complaints about matters on which the Employment Judge had made no specific finding, and about the weight given in the balance of injustice, were not within the permitted appeal. Recasting the challenge to the balance of injustice did not establish an error of law.

5. The Employment Judge was not obliged to conduct an inquisitorial investigation or invite oral evidence from a legally represented claimant. The claimant controlled the evidence she adduced. She could have waived privilege concerning the advice and actions of her former solicitors if she wished to rely on them. She bore ultimate responsibility for the claim form presented on her behalf.

6. The Tribunal rejected the respondents’ contention that the appeal as a whole was misconceived. However, the assertion that no submissions had been made to the Employment Judge about the claimant’s knowledge and the preparation of the claim form was misconceived, since the hearing notes showed that such submissions had been made. Costs remained for later determination.

• Employment Appeal Tribunal: Appeal dismissed: [2024] EAT 170.
• Employment Tribunal: Employment Judge Plowright refused the claimant’s amendment application on 19 December 2023. Reconsideration was refused by a decision sent on 29 January 2024.