Tribunal Erred in Striking Out Whistleblowing Claim Against Line Manager
The Employment Appeal Tribunal (EAT) has overturned a decision to strike out claims made by Katerina Rainwood against Pemberton Capital Advisors and Graeme John Dell.
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Employment Appeal Tribunal Reverses Strike-Out in Whistleblowing Case
The Employment Appeal Tribunal (EAT) has ruled that an Employment Tribunal (ET) erred in striking out several complaints of detrimental treatment linked to whistleblowing, brought by Katerina Rainwood against her former employer, Pemberton Capital Advisors LLP, and her former line manager, Graeme John Dell.
The case, heard before His Honour Judge Auerbach on 26 and 27 February 2025, centred on a preliminary hearing where the ET struck out specific grievances of detrimental treatment against Mr. Dell, determining they had no reasonable prospect of success. Rainwood, who represented herself at the initial tribunal, had lodged claims of sex discrimination, harassment, sexual harassment, and unfair dismissal due to making protected disclosures.
Key Issues in the Appeal
The EAT found that the ET had erred by not considering the alternative of permitting or requiring Rainwood to amend or further particularise her complaints against Mr. Dell. The EAT highlighted that the tribunal should have explored whether Rainwood's pleaded case, alongside additional information provided, warranted allowing her to refine her accusations against him.
Grounds for the appeal included arguments that the ET conducted a 'mini-trial' by permitting oral evidence and cross-examination, which was deemed inappropriate in a sensitive whistleblowing case with causation issues yet to be fully explored, especially before standard document disclosure had taken place.
EAT's Decision and Rationale
Judge Auerbach determined that the ET's decision was overly focused on Rainwood’s initial pleadings, neglecting to consider supplementary information and allegations presented in her correspondence and witness statements. The EAT emphasised that tribunals have a discretion to consider allowing amendments to claims, particularly when dealing with litigants in person.
The EAT acknowledged that Rainwood, despite being a qualified solicitor, should have been given the opportunity to clarify her claims and allegations against Mr. Dell before the complaints were struck out. The case has now been remitted back to the Employment Tribunal for further consideration, with directions for formalising amendments to the grounds of claim and allowing the respondents to amend their grounds of resistance.
Implications for Employment Law
This decision reinforces the importance of tribunals carefully considering all available information and affording litigants in person the opportunity to properly articulate their case before making a decision to strike out claims. It highlights the need for tribunals to explore alternatives, such as permitting amendments, to ensure fairness and justice in employment disputes.
Read the entire judgement here: Katerina Rainwood v Pemberton Capital Advisors LLP & Ors [2025] EAT 51
