Amber v West Yorkshire Fire and Rescue Service: Case No: EA-2022-000647-RS A Cautionary Tale in Managing Strike-Outs and Deposit Orders

In a significant ruling, Cole Khan - Ms Amber has successfully appealed to the Employment Appeal Tribunal (EAT), overturning the original tribunal’s decision to strike out her whistleblowing claims and impose deposit orders.

Background

Ms Amber lodged her First Claim as a litigant in person, on 22 September 2021. Her claims were for race discrimination, harassment, victimisation and detriment for whistle blowing. The claim related to the following facts:

 In November 2019, Ms Amber became aware that a colleague had allegedly missed a freedom of information deadline, and she was coerced to participate in a potential cover-up. After refusing to be involved Ms Amber was subjected to detriments and unfair treatment by her supervisors. She raised a grievance and claimed that she was subsequently subjected to racial abuse and bullying during the disciplinary and grievance procedures.  

At a preliminary hearing on 14 March 2022, the whistle blowing detriment claim was struck out for allegedly being out of time. The remaining claims were subject to deposit orders and subsequently dismissed.  

Appeal to EAT

At the Rule 10 Hearing on 8 November 2023, His Honour Judge Simon Auerbach granted Ms Amber permission to appeal the Employment Tribunal’s findings. The basis for this decision was that multiple acts relevant to her whistleblowing case had not been considered, which could have brought her case in time. Additionally, the Tribunal was found to have insufficient evidence to conclude that her claims lacked a reasonable prospect of success.

Subsequently, on 9 November 2023, Ms Amber formally appealed the tribunal’s decision to the EAT on the following grounds:

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 2nd June 2021 which would have meant that the whistleblowing detriment complaint was in time".

Ground 2

"The Tribunal also erred in overlooking the claimant relying on the deliberate act of making her private personal data publicly available on the internet on 19 August 2021 as a complaint of whistleblowing detriment, which would have meant that the whistleblowing detriment complaint was in time."

 Ground 3

 "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."

  Ground 4

 "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.”

Findings of the Employment Appeal Tribunal

In the recent ruling, the EAT overturned the decision to strike out Ms Amber’s whistleblowing claims and impose deposit orders.  

The EAT found that the tribunal’s approach contravened guidance set out in Cox v Adecco. This judgment highlights the importance of proper claim analysis and procedural fairness when navigating complex cases, even where claims are difficult to plead or presented in an unclear manner.

Paragraph 13 of EAT judgment sets this out in detail:

Importantly, in Cox it is made clear that a judge needs to identify the issues in order to be able to properly decide a case. Further, a legally represented respondent, needs to assist an Employment Tribunal in identifying the issues. It is contended that the claimant was placed in precisely the position which Cox says that she should not be placed in. She was a litigant in person attempting to explain her case, in the phrase used within that judgment, as a "rabbit in the headlights". The judge had required the claimant to set out her position, there and then at the hearing. The judge should have considered, in depth, the pleaded case in order to reach the decision.

This metaphor of “rabbit in the headlights” aptly illustrates the predicament faced by litigants in person, who may become overwhelmed and struggle to articulate their case effectively when under pressure in a tribunal setting. The EAT recognised that Ms Amber, presenting her claims without legal representation, was attempting to explain her case while navigating the complexities of the tribunal's procedures and the stress of the hearing environment.

At the heart of the EAT’s ruling was the tribunal’s failure to properly engage with the substance of Ms Amber’s claims. Despite her pleadings being lengthy and difficult to read, the whistleblowing claim was, in fact, in time.

The EAT noted that the employment judge had correctly identified that 1 June 2021 was the date at which, counting back from the presentation of the claim, the time limit would begin to take effect. However, it wrongly concluded that none of Ms Amber’s whistleblowing complaints were in time. On an in-depth analysis of the whistleblowing claim, it was clear that it gave a date that fell in August 2021, which was well within the time limit.

The EAT criticised the tribunal’s strike-out decision, drawing on the principles as set out Cox v Adecco which caution against prematurely striking out claims, particularly where there are factual disputes. The EAT reiterated that preliminary hearings should not resolve substantive factual issues and that litigants in person require special care, as they may struggle to present their case under the pressure of a hearing.

Additionally, the EAT noted the erroneous application of deposit orders to Ms Amber’s race discrimination and harassment claims. It found that the tribunal did not properly consider whether the strength of those claims warranted such orders, again breaching the Cox v Adecco guidance.  As a result, the EAT overturned the decision to impose the deposit orders.

After the successful EAT decision, this matter since been remitted back to the Employment Tribunal and is awaiting a case management hearing.

Wider Impact

This ruling serves as a stark reminder for to carefully consider the relevant tests prior to ordering (or seeking) strike out or deposit orders, particularly where a claim is lodged as a litigant in person and may not have been pleaded in the preferred manner.  Tribunal judges must take reasonable care to read the pleadings and supporting documents rather than relying solely on the claimant’s oral explanations. Failure to do so could lead to unfair outcomes for those representing themselves, as they may falter under the strain of the hearing.

Ms Amber’s case reflects the challenges faced by litigants in person, especially in whistleblowing and discrimination claims, and reminds us all of the importance of allowing cases to proceed fairly through a proper factual analysis. This decision will likely influence how tribunals manage preliminary hearings, especially where complex discrimination and whistleblowing claims overlap.

Second Claim

The facts of her First Case serve as the background to our client’s  Second Claim against the same Respondent, rendering  this EAT judgment  a significant outcome for our client particularly as the she suffered further victimisation as a result of this first claim, which resulted in her lodging a second claim in the Employment Tribunal.

Founding Partner Emilie Cole and Frances Onyinah, Trainee Solicitor at Cole Khan are instructed by Ms Amber in her second employment claim against West Yorkshire Fire and Rescue Service. Ms Amber’s Second Claim was heard in the Leeds Employment Appeal Tribunal on 30 September 2024 for 4 days. Judgement (see blog to news piece on successful judgment on victimisation).

Full Judgment: https://www.bailii.org/uk/cases/UKEAT/2024/146.html