1/ Cox v Adecco: The EAT often criticises ET decisions to strike out whistleblowing claims against LiPs. This, from HHJ Tayler is amongst the most strident & includes some interesting additions, especially on how the Respondent is expected to act
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2/ The case concerned an EHCP assistant at LB Croydon's SEN department, assigned to the local authority by Adecco. He was encouraged to apply for an EHCP coordinator role even though not qualified for it. He succeeded & was then charged out as EHCP coordinator.
3/ Colleagues discovered this. C was concerned they were told by Adecco. He raised concerns by in email & in meetings about a GDPR breach re his personal data. He also emailed to allege his work was being overcharged to Croydon & unqualified staff were being put into jobs.
4/ After C was informed his assignment was being terminated, he brought whistleblowing detriment and dismissal claims. After an initial PH, the claim was set down for a hearing to decide whether to strike out his claim or to make a deposit order.
5/ That application was heard by EJ Martin, who struck out the claim. The EAT reversed that decision. Its criticism focused on the ET's lack of grappling with the issues actually raised in C's claim before reaching the decision to strike it out.
6/ The EAT started with consideration of the Equal Treatment Bench Book & Malik v Birmingham CC, both of which recognise how daunting the tribunal process may be for litigants in person & the need for the ET to do some of the work to ascertain the claims raised.
7/ As is his practice, HHJ Tayler distilled 9 proposition on strike out of LiPs' whistleblowing claims. Many are very familiar, but points 5-9 are of particular interest. 5-7 emphasise the need for the ET to get to grips with the claim, not just relying on the pleadings.
8/ Proposition 8 bears particular highlighting - that legally represented respondents are duty-bound not to take procedural advantage of LiPs & to help the ET identify the documents setting the claim out, even if not explicitly pleaded.
9/ Whilst that might seem to contradict Langstaff P's concerns in Chandhok about ETs dealing with claims not pleaded & that the case shouldn't be built on shifting sands, the answer is in proposition 9 - consider whether amendment to properly plead would give prospects of success
10/ That's a point very recently made also by Linden J in Twixt v Armes - where the surrounding documents make out a whistleblowing claim not effectively set out by a LiP in their pleadings, the EAT is giving a clear steer against taking the narrow & technical view to pleadings.
11/ HHJ Tayler rails against the convenient use of strike out to deal with a badly pleaded mess which would otherwise require extensive case management. HHJ Tayler urges EJ's to roll up their sleeves & Respondents should help them.
12/ This doesn't absolve LiPs from any responsibility to clarify the claim themselves - the more prolix the case put, the greater the sympathy for an ET failing to get to grips with all intended issues. However, asking LiPs for further information/particulars rarely sheds light.
13/ Echoing a point made in a number of EAT judgments recently, HHJ Tayler wonders whether a deposit order is a more appropriate mechanism to a strike out application in these circumstances.
14/ In grappling with the decision in Cox, HHJ criticises quite a number of failures in the EJ's reasoning. I'll just highlight a couple of more pertinent points of wider interest. 1st, there can be a disclosure of information without naming the person affected/implicated.
15/ 2nd, the 1st reliance on Twixt v Armes to the effect that a claimant needs not necessarily specify the specific legal provision of which he claims breach/likely breach. Twixt came out after the hearing in Cox, & HHJ Tayler didn't seek further submissions on its correctness.
16/ 3rd, repeating a point HHJ Tayler made in Dobbie, the fact that a disclosure is self-serving doesn't mean it can't reasonably be considered to be in the public interest.
17/ The EAT went on to consider an argument that C's agency agreement deprived him from being a worker under the extended definition in s.43K ERA because that only applied to an individual who isn't a worker as defined by s.230(3).
18/ HHJ Tayler's answer to that - following Simler J in McTigue - is that the s.43K definition has to be considered in blinkers for each respondent. The fact a claimant has a s.230(3) relationship with A doesn't deprive him of the possibility of a s.43K relationship with B.
Successful counsel for C, @b_beyzade has written a summary on LinkedIn, which can be viewed here: linkedin.com/pulse/employme…
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