Clarke v The Restaurant Group (UK) Ltd (PRACTICE AND PROCEDURE)

Factual and Procedural Background

In July 2019, the Plaintiff, acting as a litigant in person, submitted a claim form to the Employment Tribunal against the Defendant, Company A, alleging claims including unfair dismissal and breach of contract. The Plaintiff stated that she worked for the Defendant from 18 January to 1 March 2019 as a subcontractor but contended she was treated as an employee. The claim form indicated a complaint related to a protected disclosure (whistle-blowing). The Tribunal, under rule 12 of the Employment Tribunals Rules of Procedure 2013, accepted only the breach of contract claim and dismissed the unfair dismissal claim due to lack of qualifying service.

The Plaintiff appealed this decision, arguing that the claim form demonstrated a protected disclosure complaint which should not have been precluded at the rule 12 stage. The Employment Appeal Tribunal (EAT) considered the appeal, including further particulars provided by the Plaintiff and submissions from the Defendant. The Tribunal had also previously decided that there was no direct contract between the Plaintiff and the Defendant in relation to the breach of contract claim. The Plaintiff’s application for reconsideration of the rule 12 rejection was treated by the Tribunal but remained undetermined as of the appeal hearing.

Legal Issues Presented

1. Whether the Employment Tribunal erred in dismissing the Plaintiff’s potential protected disclosure (whistle-blowing) complaint at the rule 12 stage for lack of jurisdiction or substantive defect.
2. Whether the Plaintiff’s claim form contained sufficient indication of a protected disclosure complaint to warrant further consideration beyond the initial rule 12 rejection.
3. Whether the absence of a direct employment contract precluded jurisdiction to consider a protected disclosure complaint under the Employment Rights Act 1996.
4. Whether the Tribunal’s failure to register ACAS as a second respondent was a valid ground for appeal.

Arguments of the Parties

Appellant's Arguments

• The Plaintiff contended that the claim form clearly indicated a complaint of unfair dismissal related to a protected disclosure, which should not have been dismissed for lack of qualifying service under section 103A of the Employment Rights Act 1996.
• She argued that the Tribunal erred in precluding the protected disclosure complaint at the rule 12 stage and that further inquiry was necessary to clarify her claim.
• The Plaintiff also challenged the Tribunal’s failure to register ACAS as a second respondent, though this issue was later dismissed by the court.
• She disputed the Tribunal’s finding that no direct contract existed and maintained that this did not necessarily negate jurisdiction for a whistle-blowing complaint.

Respondent's Arguments

• The Defendant submitted that the Plaintiff had not sufficiently identified the nature of any protected disclosure or demonstrated that the termination of the relationship was because of such a disclosure.
• The Defendant argued that the proposed whistle-blowing claim was untenable given the Tribunal’s earlier decision that no contract existed between the parties.
• They contended that the Plaintiff had an opportunity to present her case on reconsideration of the rule 12 decision but failed to participate in the scheduled hearing.
• The Defendant accepted that the Tribunal could have considered the claim under rules 26 and 27 instead of rule 12 but maintained that the initial rejection was appropriate.

Table of Precedents Cited

Court's Reasoning and Analysis

The court analysed the procedural framework under the Employment Tribunals Rules of Procedure 2013, particularly rules 12, 13, and the initial consideration provisions in rules 26 to 28. Rule 12 allows a Tribunal to reject claims with substantive defects, including lack of jurisdiction, but only in clear and unambiguous cases. The court emphasized that caution is required when dismissing claims at this early stage, especially where the Tribunal has jurisdiction to consider the type of complaint.

The Plaintiff’s claim form, although not fully detailed, contained sufficient indication of a protected disclosure complaint by ticking the relevant box and referring to public interest disclosure. Given the Plaintiff was a litigant in person, the Tribunal should have allowed further inquiry under rules 26 to 28 rather than dismissing the complaint outright under rule 12.

The court noted that the absence of a direct employment contract, as found by the Tribunal in relation to the breach of contract claim, did not necessarily preclude jurisdiction over a protected disclosure complaint. The Employment Rights Act 1996 section 47K extends protection to workers beyond employees, so the Tribunal should have considered this possibility.

The court also found that the Plaintiff’s application for reconsideration of the rule 12 decision had not been determined by the Tribunal, contrary to the Defendant’s submission that the Plaintiff had a fair opportunity to argue her case.

Consequently, the Tribunal’s decision to reject the protected disclosure complaint at the rule 12 stage was premature and erroneous. The matter should proceed to allow the Defendant to respond specifically to the whistle-blowing claim and for the Tribunal to consider jurisdiction and merit under the appropriate procedural rules.

Holding and Implications

The court ALLOWED the Plaintiff’s appeal against the Tribunal’s rule 12 decision.

The Tribunal’s rejection of the protected disclosure complaint at the rule 12 stage was held to be erroneous because the claim form contained sufficient indication of such a complaint, warranting further inquiry under rules 26 to 28. The case was remitted to the Tribunal for further consideration, including allowing the Defendant to amend its response and the Tribunal to assess jurisdiction and merits accordingly.

No new precedent was established beyond reaffirming the cautious approach required under rule 12. The court declined the Plaintiff’s request to transfer the case to a different regional Tribunal, noting that such matters fall within the discretion of regional judges or the President of Employment Tribunals. The court also directed that the subsequent consideration under rule 26 be conducted by a judge other than the one who made the original rule 12 decision, to avoid overlap and ensure impartiality.