Katerina Rainwood v Pemberton Capital Advisors LLP

The Employment Appeal Tribunal allowed part of the appeal. The tribunal's earlier decision that a number of the claimant's disclosures were excluded from protection by section 43B(4) Employment Rights Act 1996 was allowed by consent and remitted for reconsideration. The EAT also held that the employment tribunal erred in striking out five specific whistleblowing-detriment complaints against the claimant's former line manager without considering, as an alternative, permitting or requiring amendment or further particularisation of the pleaded case.

The court applied the established principles on strike-out (including rule 37(1)(a) and the authorities on taking the claimant's case at its highest and avoiding impromptu mini-trials) and concluded that where additional materials before the tribunal advanced relevant factual strands, the tribunal should have exercised its discretion to consider amendment or particularisation rather than proceed straight to strike out.

Background and procedural posture. The claimant, formerly Head Counsel – Funds, brought multiple employment tribunal claims including whistleblowing detriment complaints and unfair dismissal. A preliminary hearing decision by EJ R S Drake struck out a number of disclosures as excluded from protection under section 43B(4) Employment Rights Act 1996 and struck out specified detriment complaints against the third respondent. The claimant appealed to the EAT.

Nature of the applications and relief sought. The claimant sought to overturn the tribunal's ruling that section 43B(4) applied to specified disclosures and to challenge the strike-out of five whistleblowing-detriment complaints against her former line manager. The respondents sought confidentiality/redactions in relation to material said to attract legal professional privilege.

Issues framed by the EAT. The EAT considered (i) whether it was appropriate to allow the LPP appeal by consent and remit issues for reconsideration, and (ii) whether the tribunal had properly applied the strike-out jurisdiction under rule 37(1)(a) and associated authorities when it struck out five detriment complaints without considering amendment/particularisation.

Court's reasoning and disposition. On the LPP point the EAT allowed the appeal by consent, quashed the relevant parts of the tribunal decision and remitted the remaining section 43B/LPP issues to a different employment judge for reconsideration. On the strike-out point the EAT reviewed the authorities (including Mechkarov, Malik and Anyanwu), emphasised the need to take a litigant's case at its highest and the tribunal's duty to consider amendment where other materials advanced relevant contentions. The EAT concluded that, given the pleaded allegations and the additional particulars the claimant had supplied in correspondence and witness material, the tribunal should have considered permitting or requiring amendment or further particularisation rather than striking out the five detriments. The EAT therefore substituted a refusal to strike out and directed that, when the matter returns to the tribunal, formal amendments and consequential replies should be put in train.

Appeal allowed in part. The EAT allowed the LPP appeal by consent, quashed the tribunal's relevant LPP findings and remitted those issues to a different employment judge. The EAT also held that the tribunal erred in striking out five whistleblowing-detriment complaints against the third respondent without considering the alternative of permitting or requiring amendment or further particularisation of the pleadings in light of additional materials; the tribunal's strike-out should not have been made and the matters should be returned for the tribunal to formalise amendments and permit consequential amendments by the respondents.

This is an appeal to the Employment Appeal Tribunal from a reserved preliminary hearing decision of EJ R S Drake (preliminary hearing dates 15–16 November 2023) in the London Central Employment Tribunal. The EAT allowed part of the appeal (LPP issue) by consent, quashed the relevant parts of the tribunal decision, and remitted the remaining LPP section 43B issues to a different employment judge; the EAT also substituted a refusal to strike out five detriment claims and remitted case-management directions back to the tribunal.