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

The Employment Appeal Tribunal dismissed the appellant’s appeal against the Employment Tribunal’s decision to dismiss her claim under section 44 of the Employment Rights Act 1996 on the basis that she was not an employee within section 230(3)(a). The EAT held that the Tribunal was not obliged to recognise or to reopen proceedings to accommodate an unpleaded whistleblowing claim under sections 47B or 103A (or section 103A/103 as referred to in the proceedings) where the claimant had consistently advanced only section 44 and section 100 claims and had ample opportunity to plead otherwise. The court applied authorities establishing the limits of a Tribunal’s duty to assist litigants in person and the wide margin of appreciation afforded to tribunals in identifying the issues they are to decide (including Hyde Walsh v Ashby, Muschett v HM Prison Service and Drysdale v The Department of Transport). The International Workers’ Union (IWGB) decision was considered but was not held to change the legal effect that section 44 confers rights on employees only.

Background and parties:

• The appellant (claimant) brought proceedings in the Employment Tribunal by ET1 dated 17 August 2019, advancing claims stated as being under section 44 and section 100 of the Employment Rights Act 1996, asserting detriment and unfair dismissal related to health and safety matters.
• The respondent was Gregory Park Holdings Ltd trading as Four Seasons Hotel.

Procedural history:

• The Tribunal held preliminary hearings (including on 27 May 2020 and 6 August 2020) and identified as principal issues whether the claimant was an employee or a worker and whether claims under sections 44 and 100 could be pursued.
• The Employment Judge (Midgley) concluded the claimant was a worker not an employee and struck out unfair dismissal claims; the section 44 claim was dismissed on 29 January 2021 following consideration of submissions and the High Court IWGB decision.
• The claimant appealed to the Employment Appeal Tribunal; the matter was considered by HHJ Tucker and HHJ Beard at interlocutory stages before the EAT hearing on 6 February 2024.

Nature of the claim and relief sought:

• The claimant sought remedies in relation to alleged detriment and dismissal for raising health and safety matters under section 44 and section 100 ERA and indicated she sought an apology and compensation (as described in her ET1 boxes).

Issues for determination:

1. Whether the Employment Tribunal erred in law by not recognising that the claimant was, alternatively, advancing a whistleblowing/protected disclosure detriment claim under sections 47B or 103A ERA available to a worker under section 230(3)(b).
2. Whether, in light of the IWGB decision, section 44 should be read or treated so as to protect workers as well as employees.

Court’s reasoning and conclusion:

• The EAT examined the ET1, subsequent particulars and the claimant's submissions and found that she had consistently pleaded only section 44 and section 100 claims and had multiple opportunities to plead a whistleblowing claim but did not do so clearly at any earlier stage.
• The EAT applied authorities limiting the duty of a Tribunal to create or reframe claims for litigants in person and emphasising the Tribunal’s margin of appreciation in case management (Hyde Walsh; Muschett; Drysdale). It concluded that no reasonable Tribunal would have been obliged to re-open or reframe the pleaded case to add an unpleaded whistleblowing claim at the stage reached in the proceedings.
• The IWGB decision was considered but did not require a different outcome as regards the effect of section 44 in these proceedings.

Appeal dismissed. The Employment Appeal Tribunal concluded there was no error of law in the Employment Tribunal’s approach: the ET correctly limited the proceedings to the claims the claimant had pleaded (sections 44 and 100 ERA), the claimant had ample opportunity to plead any whistleblowing claim but did not do so clearly, and a Tribunal is not obliged to recognise or reformulate unpleaded causes of action.

Appeal from the Employment Tribunal judgment of Employment Judge Midgley dated 21 January 2021 (reasons provided later). The matter was considered in this Tribunal by HHJ Tucker (6 June 2022) and a preliminary hearing by HHJ Beard (12 January 2023) before proceeding to the Employment Appeal Tribunal where the judgment was handed down as [2024] EAT 27 (hearing 6 February 2024). The High Court IWGB decision ([2020] 11 WLUK 139) was considered in the Employment Tribunal proceedings.