Whistleblowing, Protected Disclosures
It was common ground that the claimant in ongoing proceedings in the employment tribunal had brought complaints of detrimental treatment on grounds of protected disclosures and ordinary unfair dismissal. The tribunal erred in refusing his application to amend to add a complaint that he had been unfairly dismissed for the reason or principal reason that he had made protected disclosures.
In particular the tribunal (a) proceeded on an erroneous factual basis that the first occasion on which the claimant had identified that he was seeking to pursue such a complaint was at a preliminary hearing in May 2020, when he had in fact expressly identified this in a draft list of issues tabled, in accordance with a direction of the tribunal, in February 2020; (b) attached significant weight to what it took to be the delay in raising the application, without properly considering the implications of this for the balance of hardship; and (c) erred in its approach to the significance of whether a freestanding complaint would have been out of time. Abercrombie v Aga Rangemaster UK Limited  ICR 209 applied; Reuters v Cole Limited, UKEAT/0258/17 and Pruzhanskaya v International Trade and Exhibitors (JV) Ltd, UKEAT/0046/18 considered.
The tribunal also erred in its approach to an application to add an additional alleged protected disclosure to those already pleaded.
His Honour Judge Auerbach
 EAT 67
England and Wales
Updated: 04 August 2022; Ref: scu.679857