In Pawlicka v Gregory Park Holdings Ltd (t/a Four Seasons Hotel), the claimant appealed against a decision to dismiss her claim under the Employment Rights Act 1996 because she had not shown that she had been an employee under the 1996 Act.
The claimant's claim form stated that she had worked for the defendant hotel as a housekeeper and that she had been unfairly dismissed, and dismissed for the assertion of a statutory right relating to health and safety after an accident at work. She said that she had been pressurised to continue to work while injured, had been dismissed on health and safety grounds, and had suffered detriment after bringing up health and safety concerns.
A preliminary hearing was held to determine whether she was an employee or a worker and the basis on which she said she was protected. She did not suggest at that stage that she was advancing a whistle blowing claim. Claims under section 44 of the Act were available only to those employed under an employment contract, but a judge found that the claimant had been a worker under section 230, and not an employee, so she was not entitled to bring claims of unfair dismissal under sections 100 and 94. Those claims were struck out, but, in respect of the claim under section 44, the judge looked at previous case law which held that the UK had failed to properly implement Directive 1989/391/EEC, on the introduction of measures to encourage improvements in the safety and health of workers at work (EU Framework Directive), by failing to provide for protection for workers as opposed to employees under sections 44 or 100.
The judge wanted to know whether section 44 could be interpreted in a way which was compatible with the Directive. The claimant provided submissions in which she referred to having made a protected disclosure. The judge dismissed her section 44 claim finding that the previous case law had not changed the law under which section 44 provided a right to employees and not workers. The claimant appealed but her notice of appeal did not refer to a whistle blowing claim or a protected disclosure.
The question was whether the case could have been advanced as a whistleblowing claim on the basis that the claimant was a worker, and the extent to which a tribunal could be expected to address claims which were not immediately apparent on the face of a claim form. The claimant submitted that she had made sufficient reference made in her claim form and other documents to indicate that she was pursuing a whistleblowing claim.
At appeal, it was concluded that the claim form had unequivocally advanced claims only under sections 44 and 104, and there was no obvious clue that a protected disclosure and whistleblowing detriment laid within the claims. The tribunal could not be criticised for framing the matter as it had following the preliminary hearing which limited the issues to worker status and the claims brought under sections 44 and 100. The claimant's response referred to a detriment and used the word disclosure. The tribunal had been entitled to treat that document as accepted and expand on the list of issues rather than introducing or flagging an additional based on whistleblowing.
Nothing in the claimant's written submissions signposted a whistle blowing claim. No such claim was raised at the preliminary hearing and the judge therefore dealt with whether she was entitled to bring an unfair dismissal under section 100, or a detriment claim under section 44 if she was able to establish employee status. Further submissions on the previous case law did contain a passing reference to protected disclosure but that was plainly intended to be a reference to the Public Interest Disclosure Act 1998, as the previous case law considered that the judge did not pick up that the claimant was referring to a section 47B or 103A claim.
The claimant's case had to be that no reasonable tribunal would have omitted to open the possibility of whistleblowing claims being advanced within the existing proceedings. The duty on the tribunal did not extend that far. The claimant had put her claims by reference to sections 44 and 104, and had effectively signed up to a list of issues which put the case in that way.
"Given all that had gone before and the stage which had been reached at the proceedings, there is in my view no error of law in the Employment Judge omitting to re-open proceedings and determine the potential scope of any claims which had not to that date been advanced".
The appeal was dismissed.
