The Employment Appeal Tribunal (EAT) (Keith J) has handed down its written judgment in Vassallo v Mizuho International plc and another [2024] EAT 170, dismissing the Claimant’s appeal and holding that the Employment Tribunal was entitled to refuse the Claimant’s application to amend her claim to add claims for whistleblowing detriment, whistleblowing dismissal and indirect sex discrimination.
Background
This was, as the EAT noted, an “unusual case” in which the Claimant had provided to the Tribunal, in support of her amendment application, an earlier version of her ET1 which had been prepared by her legal representatives but not presented and which contained a reference to a whistleblowing claim in box 8.1 (a claim not included in the final ET1). The Tribunal received submissions from the Claimant’s Counsel as to why this was the case and concluded that an informed decision must have been taken not to pursue a whistleblowing claim when the ET1 was submitted.
The Appeal
The Claimant appealed this finding (among other things) on the basis that it was not supported by evidence, and was based on erroneous assumptions as to what the Claimant knew and when. The Claimant argued that the Tribunal erred in failing to adopt an inquisitorial role and submitted that the Tribunal ought to have invited the Claimant to give oral evidence at the application hearing as to what had transpired between her and her legal representatives when the ET1 was being prepared.
The EAT’s decision
The EAT dismissed the appeal. The Tribunal’s conclusion was one it had been unarguably entitled to reach, based on the evidence before it and having received submissions. The Tribunal did not make an implicit or explicit finding as to whether the decision not to include the whistleblowing claim was taken by the Claimant or by her legal representatives. This was not a finding the Tribunal should have made in circumstances where there was no waiver of privilege, no evidence on the point, and given that the Claimant bore ultimate responsibility for the actions of her legal representatives in any event (as a result of the principle in the well-known authority of Dedman v British Building and Engineering Appliances Ltd [1974] ICR 53).
As for the suggestion that the Tribunal was obliged to adopt an inquisitorial role, this was not correct. The evidence provided by the Claimant in support of the amendment application was a matter for her. It was open to the Claimant, who was professionally represented, to waive privilege in respect of her solicitors’ advice and submit a witness statement in advance of the hearing or apply to give oral evidence at the hearing. She chose not to do so and it was not for the Tribunal to adopt an inquisitorial role and seek to obtain her evidence of its own motion.
Mark Greaves (instructed by Paul Reeves and Natalie Edwards of Stephenson Harwood LLP) represented the successful Respondent.