A Whitaker v White Rose Academies Trust & Anor

An employment tribunal must determine claims which emerge from a fair and objective reading of the statements of case. It has no general duty to identify and advance a distinct, unpleaded basis of claim which might assist a party. Such a duty arises only exceptionally, where fairness makes it essential.

A claim to be an employee or worker under section 230 of the Employment Rights Act 1996 does not, without more, advance the conceptually distinct extended-worker case under section 43K(1)(a). Nor must a tribunal consider that separate statutory route as a matter of course in a whistleblowing claim. A new point on appeal will not ordinarily be permitted where it requires further factual findings and evaluative judgment.

The claimant brought whistleblowing, wages and dismissal-related complaints against his employer, White Rose Academies Trust, and Luminate Education Group, its sponsor. The Employment Tribunal determined at a preliminary hearing that he was neither an employee nor a worker of Luminate Education Group and dismissed the claims against it.

On appeal, the claimant accepted that he had not expressly relied on section 43K(1)(a) of the Employment Rights Act 1996. He contended that the pleaded facts nevertheless required the tribunal to consider whether he was an extended worker for whistleblowing purposes, or that he should be allowed to raise that point for the first time in the EAT.

1. Appeal dismissed. On a fair and objective reading, the claimant’s case was that he was an employee, alternatively a section 230(3) worker, of Luminate Education Group. It did not plead an alternative case under section 43K(1)(a) of the Employment Rights Act 1996.

2. Section 43K(1)(a) contains legally distinct elements from section 230(3). It extends protection to a person who is not a section 230(3) worker in relation to the relevant respondent. A person may be a section 230 worker for one employer and a section 43K worker for another, but cannot simultaneously have both statuses in relation to the same employer.

3. Applying Moustache, the tribunal’s core duty was to decide the pleaded issues. Its role was arbitral, not inquisitorial. The claimant had received professional assistance in formulating his claims and had presented a clear, structured case at the hearing. Fairness did not make it essential for the tribunal to identify and pursue a different statutory case on his behalf.

4. The section 43K(1)(a) issue did not plainly arise from the pleaded facts. It would have required further findings and evaluative conclusions, including whether the claimant worked for Luminate Education Group, whether he was introduced or supplied to it, and whether it substantially determined the terms of his engagement.

5. The EAT declined to extend the limited “matter of course” jurisdiction to a separate statutory test which the claimant had not invoked. It also declined to admit the section 43K point as a new appeal point. The issue required factual and specialist evaluative determination, and neither an obvious knock-out point nor a glaring injustice was established.

• Employment Appeal Tribunal: dismissed the claimant’s appeal and upheld the preliminary determination that he was not an employee or worker of the second respondent.
• Employment Tribunal: at a preliminary hearing in July 2025, held that the claimant was neither an employee nor a worker of Luminate Education Group and dismissed all complaints against it.