The Employment Appeal Tribunal has delivered an interesting judgment on an ET’s power to strike out whistleblowing claims in Daly v Northumberland Tyne and Wear NHS Foundation Trust (2016).
The Claimant, Mr Daly, was a registered nurse. He brought claims of disability discrimination, failure to make reasonable adjustments, and harassment against his employer, an NHS trust. These claims were successful and the ET arranged a hearing to consider compensation. Shortly before that hearing took place he resigned and then brought further claims of unfair constructive dismissal, and that he had been dismissed and subjected to a series of detriments on the grounds that he made protected disclosures (i.e. ‘whistleblowing’ claims).
The ET Decision
The Trust conceded the unfair dismissal claim.
Mr Daly had been given a number of opportunities to clarify the issues in his whistleblowing claim but failed to do so. The ET considered that most were ‘hopeless’ with the exception of those relating to a reference.
The ET therefore struck out all of the whistleblowing claims on a number of grounds, including:
- that they had no reasonable prospect of success
- they were brought outside the normal time limit and should have been brought as part of the earlier claim
- because the Claimant’s conduct was unreasonable.
Mr Daly appealed that decision.
The Employment Appeal Tribunal Decision
The EAT emphasised that the threshold for establishing that a claim has no reasonable prospect of success is high, and it is unusual for a whistleblowing claim to be struck out without first hearing the evidence – it will only be in exceptional cases that
a claim will be struck out as having no prospects of success if the central facts are in dispute.
The EAT held that the ET was right to strike out those detriment claims which related to behaviour before Mr Daly’s resignation on the basis that these could and should have been brought as part of the earlier claim and were out of time. However, the EAT also held that the ET should not have struck out the other detriment claims specifically, that the Trust was uncooperative and had delayed in providing a reference. There was still a dispute about what the Trust had done and why, which at the least suggested
there had been a delay.
Also, whilst Mr Daly had failed to set out his claims in greater detail, this did not mean that a fair hearing was no longer possible. The ET had not considered that point, or an alternative approach such as requiring Mr Daly to pay a deposit order to continue with his claim.
The case was therefore remitted to the same ET to consider whether it was appropriate to make a deposit order and, if so, the amount, as well as possible further analysis of the merits.
ETs will ordinarily act carefully to make sure that genuine claimants do not lose the opportunity to pursue claims if they have any merit. This is particularly true with whistleblowing (and discrimination) claims. Mr Daly was therefore potentially allowed to pursue his whistleblowing claims because although it was far from clear that the allegations could be made out, the facts were in dispute and in an ET hearing the matter could have been found in his favour.
Also, despite the fact that the Claimant had several chances to clarify his claim, and it was potentially unreasonable to pursue a number of ‘hopeless’ allegations, it was still possible to have a fair trial. Striking out a claim is very much a last resort, and with other options available (such as a deposit order), one the courts are likely to use sparingly.
The decision brings certainty rather than comfort to employers. Every party should be entitled to know the case it has to face, and the fact that a claimant finds it difficult to clarify their claim will often suggest that it is tenuous or ill-thought through. Employers should in light of this case therefore look to other means, such as applications for further information or for deposit orders, to manage and respond to vague/weak allegations, as well as insisting on clarity well in advance of the final hearing.
Finally, it is worth remembering that, as here, it is possible to treat employees unfairly and subject them to a detriment after the employment relationship has ended, and claims may arise from post-termination issues such as providing a reference to prospective employers.
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