Junior Counsel for the Appellant, Henry King, has written a short piece on a couple of points that might have been missed in the tumult about Respondents’ and Judges’ obligations towards litigants in person arising out of Cox v Adecco and ors.
Introduction
In this case, HHJ Tayler gave a comprehensive view that both employment judges and lawyers for the Respondent (in effect) have a duty to get to grips with what a litigant in persons’ claim is and assist the Tribunal in framing that (see [31]). Junior Counsel for the Appellant, Henry King, has written a this a short piece on a couple of points that might have been missed in the tumult about Respondents’ and Judges’ obligations towards litigants in person arising out of Cox v Adecco and ors.
The EAT also gave two very interesting views on the correct interpretation of s.43C & s.43K Employment Rights Act 1996.
Pertinent Facts
Mr Cox alleges that he made protected disclosures to Adecco (R1), Giant (R2) and LB Croydon (R3). Mr Cox specifically argued (in his pleaded case and at the PH) that he made protected disclosures about Adecco’s and Croydon’s wrongdoing to relevant representatives of both Adecco and Croydon during the course of meetings in July 2018.
Mr Cox was (on the Respondents’ case):
- employed by Giant (R2, an agency);
- who provided him to Croydon (R3, the end user);
- via Adecco (R1, another agency).
As such, the flowchart would be: C to Giant, Giant to Adecco, Adecco to Croydon.
Adecco’s Argument
Adecco specifically contended that there was no contract of employment between them and Mr Cox and that there was no relationship between Mr Cox and Adecco such that s.43K ERA 1996 did not apply to the relationship between Adecco and Mr Cox. Adecco argued that s.43K ERA 1996 only applied to those who were not defined as a worker by s.230(3) ERA 1996 and that Mr Cox was defined by s.230(3) in that he had a contract with Giant (R2).
It therefore argued that Mr Cox was not a worker for Adecco and therefore he failed to have made a qualifying disclosure under s.43C ERA 1996.
The Relevant Provisions
By way of recap, the provisions as set out above as relevant to this case are as follows:
s.43K ERA 1996 provides the extended definition of a worker. It covers workers who are supplied to an end user by a third party, and where the terms of work were substantially determined by either the third party or the end user (i.e. Adecco being the third party and Croydon being the end user in this case).
s.43C(1)(b) ERA 1996 provides that a qualifying disclosure is made if a worker (see above) reasonably believes that the relevant failure relates solely or mainly to the conduct of a person other than his employer (i.e. third party or end user) or any other matter for which a person other than his employer (i.e. third party or end user) has legal responsibility, to that person.
s.230(3) ERA 1996 provides that a “worker” means an individual who has entered into a contract of employment or works under any other contract (including oral or in writing) where they personally provide work to another.
Decision
On the s.43K ERA 1996 point, at [76], HHJ Tayler comprehensively rejected Adecco’s arguments that the Claimant could not be a worker because the extended definition in s.43K(1) ERA 1996 applies only to an individual who is not a worker as defined by s.230(3) ERA 1996 and that Mr Cox was defined by s.230(3) ERA 1996.
HHJ Tayler considered it clear from the context of the provision that it was intended to extent protection, not restrict it. This confirms what was argued by counsel for the Appellant that the legislation acts cumulatively, on the basis that it should afford a wide protection to whistleblowers.
On the s.43C ERA 1996 point, and perhaps more concerningly for Respondents, HHJ Tayler found as follows at [74]:
“While EJ Martin referred to the disclosure being made to employees of the first respondent, there was no consideration of whether any disclosure was passed on to other of the respondents … It is at least arguable that that if a disclosure is made to one person and then passed on to another, who is such a person as would make a qualifying disclosure a protected disclosure if it was made to that person directly, that indirect disclosure is sufficient for the protection to apply, particularly if the context is such that the matter is under discussion with both parties, so that it would be anticipated that any disclosure would be passed on.”
Comment
In respect of the s.43K ERA 1996 point, this confirms what most employment lawyers already knew, but had yet to be specifically stated by the EAT, that the extended definition means what it says on the tin, it is an extended definition.
As to the s.43C ERA 1996 point, this gives Claimants another string to their bow and an added point of evidential enquiry for Respondents in multi-handed cases. If indirect disclosures are sufficient for protection to apply (which, it is submitted, is absolutely right) then employers ought to think very carefully about the channels by which disclosures and concerns ought to be raised, and what training they put in place for their employees as to how to deal with such matters so that it comes to the attention of the correct people.
This is in addition to the positive obligation placed upon Respondents to assist the Tribunal in setting out what claims and issues are, with reference to key documents and the passages within them, that set out the crux of the litigant-in-person’s case. This ought to be done, in the words of HHJ Tayler, “in reasonable detail” and “doing so is pre-requisite of considering whether the claim has reasonable prospects of success.”
This post was written by Henry King, a member of 12 King’s Bench Walk and secretary to the Employment Group. Henry appeared as Junior Counsel for the successful Appellant in this case.
employment & discrimination 