In order to bring a claim for “ordinary” unfair dismissal, a claimant needs two years’ continuous service, whereas a claim for unfair dismissal on the basis of whistleblowing does not. In Dorrington v Tower Hamlets GP Care Group CIC, the Employment Appeal Tribunal (EAT) held that, in order to bring a whistleblowing claim in those circumstances, it has to be predicated on a claim for unfair dismissal.
Ms Dorrington had worked for Tower Hamlets GP care group as a service delivery manager from 2 January 2010. Although she had a break in service in 2016 when she took voluntary early retirement, she was then re-engaged a few weeks later.
After her dismissal on 9 May 2018, she lodged a tribunal claim for ordinary unfair dismissal but did not give a specific legal basis for the claim. In an addendum to her claim form (ET1), she stated that her claim for unfair dismissal arose out of making protected disclosures (whistleblowing) as a result of complaints that she had made.
Tower Hamlet GP care group argued in response that the tribunal did not have jurisdiction to hear her claim of unfair dismissal as she did not have two years’ continuous service.
At a preliminary hearing, the tribunal judge ruled that Ms Dorrington (who was representing herself) did not have sufficient continuity of service to bring an "ordinary" unfair dismissal claim.
A second preliminary hearing was then scheduled to consider whether an alternative claim of automatically unfair dismissal based on whistleblowing could succeed. This claim did not require Ms Dorrington to have two years’ continuous service. Ms Dorrington was told by the tribunal to provide clarification of her claim in advance of the hearing.
She duly sent a document setting out a chronological narrative which included claims about various work-related matters which resulted in her being "unjustly victimised". It also stated that because she had raised concerns continually, she was seen as a troublemaker at her workplace “when really I was a whistleblower trying to resolve serious issues... Essentially, the majority of these complaints were public interest and my intentions were merely to try to instil some ethics and morality."
At the second hearing, the tribunal judge decided to deal with the matter as an application to amend the claim form. She dismissed the application, however, on the basis that the amendment was a new cause of action which Ms Dorrington had only brought once her initial claim of unfair dismissal had been struck out. As this was a new claim, it was now substantially out of time.
Overturning that decision, the EAT held that the addendum was always part of Ms Dorrington’s claim. Although it was not clearly drafted, (which was not surprising, given that she was representing herself), the tribunal was still obliged not to overlook or exclude any of the information that she wanted to include in it.
The EAT pointed out that Ms Dorrington’s initial application included a claim for unfair dismissal. One of the ways of proving that a dismissal is unfair is by relying on a protected disclosure, although that in and of itself does not constitute a cause of action. Rather, the cause of action on which it is based is the allegedly unfair dismissal.
Ms Dorrington’s claim form clearly alleged unfair dismissal. There was just a lack of clarity as to why the dismissal could be said to be unfair and, in particular, whether it could be so because she had made a protected disclosure. Instead of treating the second hearing as an amendment, therefore, the tribunal judge should have focused on particularising the claim.
As the unfair dismissal claim was made in time and the defect was simply one of a failure to particularise the claim, this was also therefore in time. The EAT ordered a further case management hearing in the tribunal for the matter to be re-heard.
This case demonstrates the importance of providing as much information as possible in the claim form. Where it is not clear on what basis the claim is being brought, the claimant should be asked in writing to particularise their claim fully in order to provide clarification.