Amber v West Yorkshire Fire and Rescue Service
| Jurisdiction | UK Non-devolved |
| Neutral Citation | [2024] EAT 146 |
| Year | 2024 |
| Court | Employment Appeal Tribunal |
2024 Aug 14
Judge
Practice - Employment tribunals - Strike out - Claimant acting in person not presenting case intelligibly - Judge at preliminary hearing attempting in discussions with claimant to understand case - Strike out ordered and deposit orders made on basis of no or little reasonable prospect of success - Proper approach to understanding claims of litigants in person at preliminary hearings -
The claimant, who acted in person, presented a claim at an employment tribunal. Following a case management hearing ordering the preparation of a Scott schedule, the claimant submitted a lengthy document setting out the factual matters of her claim. At a preliminary hearing to consider time limits and faced with a Scott schedule in an unreadable format, the employment judge attempted, in discussions with the claimant, to understand her claim. At the end of the hearing, the judge struck out a claim of whistleblowing pursuant to rule 37(1)(a) of the Employment Tribunals Rules of Procedure 2013F1 and made deposit orders under rule 39 in respect of claims of race discrimination and harassment, on the bases, respectively, that the claims had no or little reasonable prospect of success. After a failed application for reconsideration, the claimant appealed on the grounds that the tribunal had misunderstood factual elements of her case and hence wrongly concluded that the whistleblowing complaint was out of time and that it had erred in its legal approach to the deposit order applications, which it granted without having considered sufficient evidence.
On the appeal—
Held, allowing the appeal and remitting the case for rehearing, that an employment judge at an open preliminary hearing dealing with rules 37 and 39 of the Employment Tribunals Rules of Procedure 2013 ought generally not to deal with significant disputed matters of fact; that the procedure should therefore generally not hear evidence from witnesses, but contemporaneous documentary evidence could be considered in appropriate circumstances; that the tribunal had to be very careful about making findings of fact or findings of how a fact might be proved in dealing with deposits, especially in the case of parties with the potential for miscommunication, such as litigants in person, or in cases where there were complex pleadings not pleaded by a lawyer; that a case advanced ought to be taken at its highest, which required the judge to test the factual account and examine the case against basic logic, internal consistency or any contradiction in the contemporaneous documentary evidence; that what was in issue was whether the application had a realistic, as opposed to merely fanciful, prospect of success, with “realistic” meaning “it could be the case” and not being a substantial hurdle to cross; that the elements taken into account by employment tribunals in dealing with strike-out arguments were equally applicable to deposit applications, including that, in the case of a litigant in person, the claimant should not be expected at a hearing to explain the case set out in the pleadings; that, in the instant case, the tribunal, faced with a complex case, which was not clear in its exposition and not made clear by the unreadable Scott schedule, had tried to delve into the claimant’s claim and made the error of expecting a litigant in person to explain her case at the hearing, rather than relying on the documents and pleadings; that, on an in-depth analysis of the documents and pleadings, the whistleblowing complaint was in fact in time; and that the tribunal’s failure properly to elicit the claimant’s case meant that the challenge to the tribunal’s legal approach to the deposit order applications also succeeded (post, paras 25–26, 27–30, 32, 36).
Per curiam. In the absence of guidance as to how claimants should complete the Part 8 section of the ET1, there is no alternative at present to employment tribunal judges delving deeply in case management type hearings with parties to make sure that their cases are properly understood. In such hearings, the judge, reducing that analysis to a list of issues, could ask the parties to consider it, giving time to respond if they disagree with the list. Although time consuming and likely to lead to complaints that judges are taking sides in some way or other, there does not appear to be any useful alternative to that approach at present (post, paras 33–34).
The following cases are referred to in the judgment:
British Home Stores Ltd v Burchell (Note)[
Cox v Adecco Group UK & Ireland[
Ezsias v North Glamorgan NHS Trust
Hemdan v Ishmail[
Richmond Pharmacology v Dhaliwal[
Tait v Redcar and Cleveland Borough Council UKEAT/96/08 (unreported) 2 April 2008,
Van Rensburg v Kingston upon Thames Royal London Borough Council UKEAT/96/07 (unreported) 16 October 2007,
The following additional case was cited in argument:
Malik v Birmingham City Council UKEAT/27/19 (unreported) 21 May 2019,
APPEAL from an employment tribunal sitting at Leeds
By a claim form dated 22 September 2021, the claimant, Tayba Amber, brought claims for race discrimination, harassment and whistleblowing against the respondent, West Yorkshire Fire and Rescue Service. On 14 March 2022, Employment Judge Lancaster struck out her whistleblowing claim, on the ground that it was out of time, and made a deposit order in respect of her claims of race discrimination and harassment. By a letter to the employment tribunal dated 25 March 2022, the claimant sought reconsideration, which was rejected.
By a notice of appeal dated 10 May 2022 and amended grounds of appeal dated 9 November 2023, the claimant appealed on the grounds that the tribunal erred in (1) overlooking the claimant’s case that the disciplinary process did not conclude until 2 June 2021, which would have meant that the whistleblowing detriment complaint was in time; (2) overlooking that the claimant relied on the deliberate act of making her private personal data publicly available on the intranet on 19 August 2021 as a complaint of whistleblowing detriment, which would have meant that the whistleblowing detriment complaint was in time; (3) taking the wrong legal approach to the deposit order application in respect of the 19 August 2021 allegation, in that, in the absence of evidence either way about the reason for the data breach, the tribunal could not be satisfied that the high threshold for a deposit order had been reached; and (4) taking the wrong legal approach to the deposit order application in respect of the 3 August 2021 allegation, in that the tribunal failed to have sufficient regard to the claimant’s case that Mr Dixon was not an independent manager or, alternatively, was wrong to reject that case without hearing evidence on it.
The facts are stated in the judgment, post, paras 3–11.
Jack Feeny (instructed directly through
Darren Finlay (instructed directly) for the respondent.
14 August 2024. JUDGE BEARD delivered the following judgment.
1 This is an appeal against the decision of Employment Judge Lancaster. He struck out a claim of whistleblowing and ordered a deposit in respect of claims of race discrimination and harassment. I shall refer to the parties, as they were before the employment tribunal, as claimant and respondent. They are represented by Mr Feeny for the claimant and Mr Finlay for the respondent, both of counsel. The amended grounds of appeal permitted by Judge Auerbach are as follows. Ground 1:
“In striking out the claim’s complaints of whistleblowing detriment the tribunal erred in overlooking the claimant’s case and the disciplinary process did not conclude until 2 June 2021 which would have meant that the whistleblowing detriment complaint was in time.”
2 Ground 2:
Ground 3:“the tribunal also erred in overlooking the claimant relying on the deliberate act of making her private personal data publicly available on the intranet on 19 August 2021 as a complaint of whistleblowing detriment, which would have meant that the whistleblowing detriment complaint was in time.”
Ground 4:“the tribunal erred in taking the wrong legal approach to the deposit order application in respect of the 19 August 2021 allegation for the Equality Act 2010 complaints in the absence of evidence either way about the reason for the data breach. The tribunal could not be satisfied that the high threshold for a deposit order had been reached.”
“the tribunal erred in taking the wrong legal approach to the deposit order application in respect of the 3 August 2021 allegation for the Equality Act 2010 complaints. The tribunal failed to have sufficient regard to the claimant’s case that Mr Dixon was not an independent manager or, alternatively, was wrong to reject that case without hearing evidence on it.”
3 The claim was presented on 22 September 2021, at which date the claimant was still employed by the respondent. The claimant identified three claims in the ET1 form but, at that time, did not, specifically, set out a claim of whistleblowing. However, in addition to her specific claims she also identified whistleblowing in the indications box at Part 10 of the ET1 form stating that she was relying on a protected disclosure.
4 Employment Judge O’Neill held a case management preliminary hearing on 25 November 2021, ordering the preparation of a Scott schedule. The claimant then attached what is accepted to...
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