W v Interserve Group Ltd & Ors

An employment tribunal must read claim particulars fairly and as a whole, particularly where the claimant is unrepresented. A claim need not contain lawyerly detail if it pleads the essential factual allegations supporting each element of the cause of action. Further particulars may be required without converting the clarification into an amendment.

Where original particulars sufficiently assert earlier protected disclosures, the respondents’ knowledge of them, and detriment or dismissal caused by that knowledge, the tribunal must include that case in the issues for trial. It is wrong to treat the matter as an unpleaded new claim and refuse it as a late amendment.

The claimant brought Employment Tribunal complaints of protected-disclosure detriment and automatic unfair dismissal, among other claims. She alleged that she had made protected disclosures to a previous employer and/or KPMG in 2018 and 2019, and that those involved in her later employment knew of those disclosures and acted adversely towards her because of them.

At a preliminary hearing, the Employment Tribunal held that this allegation was not pleaded in the original claim. It treated it as a significant proposed amendment and refused permission. The claimant appealed, contending that the original particulars, read fairly, already raised the allegation and that further details had subsequently been supplied.

The central issue was whether the earlier alleged disclosures formed part of the pleaded case or required permission to amend.

1. Appeal allowed. The Employment Tribunal erred in holding that the claimant’s reliance on alleged protected disclosures made to Highways England and/or KPMG was absent from her original claim and therefore required an amendment.

2. The correct approach was to read the claim particulars fairly, objectively and as a whole, taking account of the claimant’s status as a litigant in person. The essential factual allegations need to be pleaded, but detailed particulars may properly be supplied later.

3. On that reading, the particulars asserted that the claimant had made earlier protected disclosures; that Ms Cadman and Ms Warrack knew of them, potentially through material published online; and that their knowledge influenced the alleged detriments and dismissal. The reference to her being called a whistleblower was pleaded as circumstantial evidence of that knowledge, not as the whole of the complaint.

4. The original particulars required further detail, but that did not make the allegation a new claim. By the time of the challenged hearing, the claimant had also supplied further particulars. The tribunal should accordingly have included the earlier alleged disclosures in the list of issues rather than applying the amendment jurisdiction.

5. No remission was necessary because, on any fair reading, the disclosures had to be added to the issues. The EAT directed inclusion of the specified allegations under section 43B(1) of the Employment Rights Act 1996, together with the record that further details had been provided on 12 September 2022. The merits tribunal remains to decide whether the disclosures were in fact and law protected, whether the claimant may rely on them, and whether they caused detriment or dismissal.

• Employment Appeal Tribunal: Allowed the claimant’s appeal in [2024] EAT 70 and directed that the alleged earlier protected disclosures be added to the list of issues.

• Employment Tribunal (Birmingham): At a preliminary hearing on 31 January 2023, refused permission to amend to add the allegation, holding that it was not contained in the original claim.