B Pawlicka v Gregory Park Holdings Ltd t/a Four Seasons Hotel

An Employment Tribunal must determine the claims a party has put before it. Its duty to assist an unrepresented litigant does not require it to identify and formulate a distinct statutory claim which has not been clearly advanced.

Whether further assistance is appropriate depends on the circumstances. The Tribunal retains a wide margin of judgment, subject to impartiality and fairness to both parties. It commits no error of law by declining to reopen concluded issues merely because a passing reference may indicate an unpleaded whistleblowing claim.

The claimant brought health and safety claims under sections 44 and 100 of the Employment Rights Act 1996. The Employment Tribunal found that she was a worker, but not an employee, and struck out the claims which required employee status. It later dismissed the outstanding section 44 claim.

On appeal, permission was granted on one ground: whether the Tribunal should have treated the material before it as advancing whistleblowing claims under sections 47B or 103A, available to a worker. The claimant relied on wording in her ET1 and a later passing reference to protected disclosure.

1. Appeal dismissed. The Employment Tribunal made no error of law by determining the case as pleaded and by not treating it as containing whistleblowing claims.

2. The ET1 unequivocally advanced health and safety claims under sections 44 and 100 of the Employment Rights Act 1996. It did not clearly identify a protected-disclosure or whistleblowing detriment claim. The Tribunal was entitled to frame the issues accordingly.

3. The claimant had several opportunities to identify any additional claim. She responded to the suggested issues, filed submissions for the status hearing, and participated in the proceedings without clearly advancing a claim under sections 47B or 103A. Her later reference to protected disclosure, made in submissions invited on a different outstanding issue, did not require the Employment Judge to reopen the proceedings and investigate an unpleaded claim.

4. EAT/0463/07 established that a Tribunal does not err merely by failing to raise a possible protected-disclosure claim following a finding of worker status. The principles in [2010] EWCA Civ 25 and [2014] EWCA Civ 1083 also confirmed that assistance for a litigant in person is context-sensitive, constrained by impartiality, and subject to the Tribunal's wide evaluative judgment.

5. On these facts, no reasonable Tribunal was required to take the further step urged by the claimant. The dismissal of the section 44 claim therefore stood.

• Employment Appeal Tribunal: Appeal dismissed: [2024] EAT 27.
• Employment Tribunal: Employment Judge Midgley found that the claimant was a worker but not an employee, struck out the unfair-dismissal and section 100 claims, and subsequently dismissed the section 44 claim.