Case Study: Miss T Amber v West Yorkshire Fire and Rescue Service (WYFRS) 

Overview 

In Miss T Amber v West Yorkshire Fire and Rescue Service ([2024] EAT 146), the Employment Appeal Tribunal (EAT) addressed critical procedural issues regarding strike-out orders and deposit requirements in a complex discrimination and whistleblowing case. This decision serves as an essential guide for trade union representatives supporting members in tribunal processes, especially regarding procedural fairness for self-represented claimants. 

Case Background 

Miss T Amber, an employee of WYFRS, submitted claims related to whistleblowing and race discrimination. She alleged that the employer subjected her to detriments, including a disciplinary process, a public data breach, and other racially motivated harassing actions. WYFRS disputed the claims and argued they were either out of time or unlikely to succeed. 

During preliminary proceedings, the Employment Judge struck out some of Miss Amber's whistleblowing claims on timeliness grounds and imposed deposit orders on specific discrimination allegations, citing a lack of reasonable prospects of success. Miss Amber appealed, asserting procedural errors in how the tribunal assessed her claims without fully considering all pertinent facts and timelines. 

Key Issues on Appeal 

1. Procedural Errors and Access to Justice: Miss Amber, representing herself, contended that the tribunal's handling of her case compromised her ability to present claims effectively. The EAT found that the judge failed to adequately examine the entire scope of her claims, particularly those with potentially in-time incidents, such as a data breach in August 2021. The EAT ruled that the tribunal’s narrow focus on limited dates led to a premature strike-out of her whistleblowing claims. 
2. The Role of the Scott Schedule: Miss Amber’s case relied heavily on a Scott schedule (an Excel-based document) to clarify her claims. However, the document proved unreadable in the format provided, complicating the judge’s review of her claims. The EAT underscored that the schedule’s format and the absence of a coherent document bundle left the judge overly reliant on oral explanations from Miss Amber, potentially disadvantaging her. 
3. Application of Cox v Adecco Guidelines: The EAT highlighted that Miss Amber’s situation mirrored issues from Cox v Adecco, which emphasises special care for self-represented claimants. This case advises tribunals to thoroughly review all pleadings and documents rather than relying solely on claimant statements under the stress of a hearing. The EAT noted that Miss Amber’s August 2021 claims may have been in time and therefore merited a complete review at a full merits hearing. 
4. Deposit Orders for Discrimination Claims: The tribunal had also imposed deposit orders on two discrimination allegations, asserting little prospect of success. The EAT determined that these orders were premature, as they involved unresolved factual disputes, particularly around the intention behind the data breach and the impartiality of WYFRS managers involved in Miss Amber’s disciplinary process. 

EAT’s Decision and Reasoning 

The EAT allowed Miss Amber’s appeal, remitting her claims to the Employment Tribunal for reconsideration. The tribunal erred by failing to: 

• Fully consider the entirety of her claims, especially the in-time August 2021 data breach claim. 

• Provide adequate procedural support and leeway for a self-represented litigant in line with Cox v Adecco, particularly by not fully reviewing written pleadings and instead relying on oral explanations. 

• Properly apply the legal threshold for deposit orders, as the underlying facts remained contested. 

Key Takeaways for Trade Union Representatives 

1. Supporting Procedural Fairness: Trade union representatives should advocate for full consideration of claims, especially when a member faces procedural obstacles like complex Scott schedules. Representatives can assist by helping claimants prepare clear documentation and, where possible, securing legal assistance for critical procedural hearings. 
2. Awareness of Cox v Adecco Guidelines: This case underscores the importance of Cox v Adecco’s procedural protections for claimants, particularly for those unrepresented. Representatives should ensure that tribunals consider written submissions in detail and avoid placing undue pressure on claimants during hearings. 
3. Challenge of Deposit Orders: When members face deposit orders, representatives should evaluate whether factual disputes exist, as these orders should not be based on contested facts without a full merits hearing. However, the judge made clear that, in considering deposit order applications, tribunals are not required to naively accept cases advanced that do not accord with basic logic, are internally inconsistent or contradict the underlying documentary evidence. Whilst the facts should not be tried at this stage, it is open to a judge to conclude there is no dispute of fact on the basis that one party’s account is clearly without merit. Nevertheless, the general principal is that a deposit order should not be made on the basis of contested facts.   
4. Timeliness and Whistleblowing Claims: This case highlights the tribunal’s obligation to consider all timely incidents in a claimant’s pleadings, especially in discrimination and whistleblowing cases, which often involve extended timelines and patterns of alleged detriment. 

Conclusion 

The EAT’s decision reinforces the need for tribunals to follow fair procedural practices, particularly for claimants without legal representation. By ensuring tribunals apply careful, complete consideration of claims and avoid hasty deposit orders, trade union representatives can better support their members in securing just hearings for complex employment disputes.