Clarke v The Restaurant Group (UK) Ltd (Practice and Procedure): EAT 20 Jul 2021

The claimant in the employment tribunal was a litigant in person. Upon consideration of her claim form under rule 12 Employment Tribunals Rules of Procedure 2013, a judge determined that there were two complaints, being of (a) ordinary unfair dismissal, in respect of which the claimant lacked qualifying service, and which was dismissed; and (b) breach of contract, which was permitted to proceed.
On appeal the claimant contended that her claim form indicated that she was seeking to bring a complaint that she was unfairly dismissed for making a protected disclosure, and that the judge had erred by precluding such a claim under rule 12. The claimant had subsequently written a letter, which the tribunal had treated as an application for reconsideration of the rule 12 decision under rule 13. However, it appeared that that application had not been determined.
Held: the judge had erred by precluding a possible protected disclosure complaint at the rule 12 stage. A proposed complaint should be dismissed for lack of jurisdiction under rule 12 only in the clearest of cases. The claimant had done enough in the claim form to indicate that she was seeking to pursue a protected disclosure complaint. The particulars in the claim form did not properly explain what she contended she had done that amounted to the making of a protected disclosure, nor why she considered that the relationship had been terminated because of any such disclosure by her; but she was a litigant in person and these were matters that could properly be explored at the initial consideration stage under rules 26 – 28. The tribunal had power under rule 26 to request further information from her, and to consider whether there was jurisdiction to entertain the complaint and/or whether it had no reasonable prospect of success. If the tribunal proposed to dismiss the complaint under those rules, the claimant would have the safeguards that reasons would be required, and she would have the opportunity to request a hearing before a final decision was taken.
The fact that the tribunal had also at a later hearing (when considering the breach of contract claim) determined that there was no direct contract between the claimant and the respondent, was not necessarily decisive against there being jurisdiction to consider a possible protected disclosure complaint, having regard to Employment Rights Act 1996 section 47K.

His Honour Judge Auerbach
[2021] UKEAT 2020-001107
England and Wales


Updated: 13 January 2022; Ref: scu.670761