Background
Rabaha Arshad, a disabled postgraduate research student who had also worked part-time for the University of Glasgow, resigned in June 2024. Her Employment Tribunal claim concerned alleged treatment during that employment and her later unsuccessful application for a Residence Life Welfare Officer role.
In the narrative attached to her ET1, Ms Arshad used the heading “Protected disclosures”, identified two alleged disclosures, and listed detriments said to have followed, including delays concerning occupational health, reasonable adjustments and a grievance. At a private preliminary hearing, however, the Tribunal held that her ET1 did not contain protected-disclosure or unfair-dismissal claims and directed her to apply to amend if she wished to add them.
The Court’s Holding
The EAT allowed the appeal concerning protected-disclosure detriment. Objectively read, the ET1 plainly advanced such a claim: it expressly identified protected disclosures and alleged detriments flowing from them. Whether the alleged disclosures ultimately qualified for statutory protection was not an issue for the EAT on this appeal.
Requiring Ms Arshad to apply to amend in respect of a claim already pleaded effectively removed that claim. Applying Mendy v Motorola Solutions UK Ltd, this was tantamount to a strike-out and therefore a final determination, not merely case management. It was an error of law because it occurred at a private preliminary hearing without the procedural safeguards applicable to strike-out. The EAT set aside the relevant part of the amendment direction, while leaving it in place for any unfair-dismissal claim.
Key Takeaways
- Whether a claim has been brought depends on an objective reading of the ET1 and attached pleading, not the claimant’s later description of it.
- An order requiring amendment to reintroduce a claim already pleaded may amount to an impermissible de facto strike-out.
- The EAT did not decide whether Ms Arshad’s alleged disclosures met the statutory test, only that she had pleaded a protected-disclosure detriment claim.
Why It Matters
The decision reinforces that Employment Tribunals must distinguish clarification of a pleading from removal of a claim that objectively appears on its face. That is particularly significant where a litigant in person has set out a case imperfectly but has nevertheless identified its legal and factual essentials.
For employers, the case confirms that arguments about whether disclosures are in the public interest or otherwise protected ordinarily go to the merits, rather than whether a whistleblowing claim was pleaded at all.