W v Interserve Group Ltd & Ors

The Employment Appeal Tribunal held that the employment tribunal erred in concluding that certain alleged protected disclosures (made to a previous employer and agents in 2018 onwards) were not sufficiently pleaded in the claimant's original particulars and therefore required permission to amend. The EAT applied the principle that particulars should be read fairly as a whole, especially where the claimant is a litigant in person, and found the original particulars and subsequent particulars (provided by the claimant) did sufficiently raise the essential elements of the complaint under sections of the Employment Rights Act 1996 (notably section 43B and related provisions).

Accordingly, the EAT directed that the claimed prior protected disclosures, together with the factual and legal issues relating to them, be added to the tribunal's list of issues for the full merits hearing. The EAT emphasised that it did not determine the substantive questions of whether protected disclosures had in fact been made or whether any detriment or dismissal was causally connected to them; those matters remain for trial.

Background and nature of the claim:

• The claimant, acting in person, brought claims in the employment tribunal including detrimental treatment for making protected disclosures and automatic unfair dismissal for the reason, or principal reason, of having made protected disclosures; there were also Equality Act and Trade Union and Labour Relations (Consolidation) Act 1992 claims. The claimant alleged, in addition to disclosures made to Interserve during her employment, that she had made earlier protected disclosures in summer 2018 onwards to her previous employer (Highways England) and to agents such as KPMG which were relevant to the later treatment by Interserve.

Procedural posture: The tribunal (after case management hearings before EJ Kelly and EJ Wedderspoon) concluded at a preliminary hearing on 31 January 2023 that the claimant required permission to amend to rely on those earlier disclosures and refused permission. The claimant appealed that refusal to the EAT.

Issues framed by the court:

• Whether the alleged earlier protected disclosures were sufficiently raised by the claimant's original claim form and particulars so as not to require permission to amend;
• Whether the tribunal erred in effectively striking out that part of the claimant's case by refusing permission to amend;
• Whether the claimant had fair notice that that part of the case might be excluded at the preliminary hearing.

Court's reasoning and decision:

• The EAT held that, on a fair and objective reading of the particulars as a whole (and bearing in mind the claimant was a litigant in person), the original particulars did assert prior protected disclosures, linked them to publication of material from a previous tribunal judgment, alleged that two Interserve respondents had become aware of those disclosures and described detriments and dismissal said to have flowed from that knowledge.
• Although more detailed particulars could be required, the claimant had provided further particulars by the time of the hearing, and the tribunal therefore erred in deciding that the matter was not within the claim and in refusing to include it in the list of issues without permission to amend.
• The EAT directed the tribunal to add the specified wording of the earlier claimed disclosures (as further particularised) to the list of issues; it did not resolve substantive factual or legal questions on liability or remedy, which remain for trial.

Appeal allowed. The EAT found that the tribunal erred in holding that the claimant's original particulars did not sufficiently raise the alleged prior protected disclosures and so required an amendment; on a fair reading (and having regard to the claimant being a litigant in person and to particulars subsequently given) those disclosures were sufficiently pleaded and should be added to the list of issues for trial. The EAT therefore directed their inclusion and did not remit the question for further preliminary consideration.

Claim presented to Employment Tribunal (ET1) 19 February 2022; case management hearing before EJ Kelly 28 July 2022 (minute 8 August 2022) directing further preliminary hearing; further preliminary hearing before EJ Wedderspoon 31 January 2023 where claimant's application to amend to include prior protected disclosures was refused; appeal to Employment Appeal Tribunal; order dated 8 July 2023 directing EAT consideration; EAT hearing and judgment [2024] EAT 70 (26 March 2024) allowing the appeal and directing that the alleged prior disclosures be added to the tribunal list of issues.