Katerina Rainwood v Pemberton Capital Advisors LLP

On an application to strike out a complaint as having no reasonable prospect of success, an employment tribunal must first assess the pleaded case. If material before it explains an arguable case which is inadequately pleaded, the tribunal must also exercise its discretion judicially by considering amendment or further particulars instead of strike-out.

This is especially important where a litigant in person has supplied relevant information in correspondence, witness material or other documents. The tribunal must not resolve disputed primary facts by a mini-trial. However, the mere use of witness material at a preliminary hearing does not establish such an error where the tribunal's reasoning rests on the pleaded case.

The claimant, a former solicitor employed by the second respondent, brought claims including whistleblowing detriment, sex discrimination and unfair dismissal. The third respondent had been her line manager.

The Employment Tribunal struck out five whistleblowing-detriment complaints against the third respondent under rule 37(1)(a) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013. It concluded that the pleaded allegations did not show his involvement. It also held that certain alleged protected disclosures were excluded by section 43B(4) of the Employment Rights Act 1996.

The claimant appealed. The legal professional privilege appeal was allowed by consent. The central issue on the strike-out appeal was whether the tribunal should have considered amendment or further particulars in light of additional material identifying the alleged involvement of the third respondent.

1. Appeal allowed in part on the strike-out issue. The tribunal erred by striking out detriments 21, 22, 24, 28 and 31 against the third respondent without considering whether the claimant should be permitted or required formally to amend or particularise her case. The strike-out decision was replaced by a refusal to strike out those complaints.

2. The first question on a rule 37 application is whether the pleaded complaint has no reasonable prospect of success. But that conclusion does not compel strike-out. The tribunal retains a judicial discretion. Where other material before it advances relevant allegations or information, it should consider whether amendment or particularisation would enable an arguable claim to be advanced.

3. The claimant had pleaded general involvement by the third respondent and had supplied further material. That material alleged, among other things, his influence on the performance review and restructuring process, his attendance at the relevant Management Committee meeting, and his control of meetings and information from which she was excluded. If true, those matters were capable of supporting an inference of material involvement. The respondents' factual denials, including the assertion that he had recused himself, were matters for trial.

4. It was immaterial that the claimant had not made a formal amendment application. Relevant considerations included her attempts to provide additional information, her request for disclosure, and her indication that she could amend following disclosure. Fairness would permit consequential amendments to the respondents' grounds of resistance.

5. Ground 5 failed. It was generally inappropriate to direct witness evidence for a strike-out application, and the direction in this case caused concern. However, the tribunal's reasons did not show that it had resolved any materially disputed fact through oral evidence or conducted a mini-trial.

6. The appeal concerning section 43B(4) of the Employment Rights Act 1996 was allowed by consent. The relevant substantive decision and consequential paragraph were quashed, and the outstanding issues were remitted to a different employment judge. On return, the tribunal should formalise the claimant's amendments and permit consequential amendments by the respondents. The claimant no longer sought to maintain detriment 31 separately against the third respondent.

• Employment Appeal Tribunal: Allowed the legal professional privilege appeal by consent and quashed the relevant decision. Allowed the substantive strike-out challenge, substituted refusal of strike-out, and remitted case-management matters to the Employment Tribunal.
• Employment Tribunal, London Central: At a preliminary hearing on 15 and 16 November 2023, struck out five whistleblowing-detriment complaints against the third respondent and held that specified disclosures fell within section 43B(4) of the Employment Rights Act 1996.