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Ms El-Megrisi a whistleblower who had made a series of protected disclosures (under theEmployment Rights Act (ERA) s.47B) warning her employer a number times about immigration irregularities amongst staff and students was dismissed ostensibly for redundancy. The ET didn't believe this, finding instead that the claimant had become a 'nuisance' in refusing to be associated with illegal immigration practices. The redundancy was found by the ET to be a sham and Ms El-Megrisi's claim for ordinary unfair dismissal was upheld. This resulted in an award for £16,000. The claimant found a job soon afterwards which meant that even if she won further claims of victimisation and automatic unfair dismissal she would not be any financially better off.

The claimant held that she needed to pursue her claim further to show that she was not simply a 'nuisance' but that she had acted in such a way to avoid being associated with illegal practices requested of her by Azad University. The EAT agreed that the “Appellant is entitled as a matter of right to have the totality of her claim adjudicated” as this would be of practical benefit to her..

The EAT found it strange that after having recognised that Ms El-Megrisi had made a nuisance of herself by on a number of occasions the ET refused to recognise that this had led to her dismissal. According to judge Underhill, "where a claimant has made multiple disclosures section 103A does not require the contributions of each of them to the reason for the dismissal to be considered separately and in isolation. Where the Tribunal finds that they operated cumulatively, the question must be whether that cumulative impact was the principal reason for the dismissal". The EAT believed that the cumulation of 'nuisance' owing to her protected disclosures was indeed the reason for her dismissal and therefore found for automatic unfair dismissal contrary to ERA 1996 s.103A.. The EAT criticised the ET in that it “wrongly focused only on the Appellant's most recent disclosure, and held that that was not the principal reason for her dismissal, having regard to her previous history of difficulties with the Respondent – That approach failed to take into account that that history itself largely consisted of other protected disclosures”.

The claimant had not made exactly clear in her ET1 the basis of her claim under the Employment Rights Act 1996 s.47B, what exactly the acts against her were.

The judge mentioned that in Section 9 of the ET1 a threat was made by the respondent, that if the claimant was unco-operative life would become difficult for her. The judge read this as “presumably intended to raise a claim under section 48 of the 1996 Act of a breach of the Appellant's rights under section 47B not to be subjected to a detriment on the grounds that she had made a protected disclosure”. She had also failed to show the detriment to her that had resulted. The EAT wondered whether this was the reason that the ET had overlooked the victimisation part of the claim.

The respondent asked that a 'Polkey' deduction should be made ( Polkey deductions can be a means of punishing a claimant who wins on a technicality. If the employer would have dismissed in any case had he followed the right procedures, then the tribunal can award the claimant nothing in compensation. See this case

Post decision vexatious behaviour lost the claimant his compensation Aryeetey v Tuntum Housing Association [2009] EAT

for a recent example). The tribunal not only refused this but awarded a 50 per cent uplift under section 1 of the Employment Act 2002.

The judge whilst showing understanding for non-legally trained claimant, made a number of comments as to clarity of the pleadings that should be kept in mind.

It is necessary in the ET1 that there should be clarity in defining (a) any acts complained, (b) the detriments said to have been suffered and (c) the damage caused as a result - “these three elements may well overlap but they are not necessarily co-extensive (see London Borough of Harrow v Knight [2003] IRLR 140)”.

The judge further mentions a vague list of fifteen detriments that blurred “ the acts complained of with the detriment suffered thereby, and they do not spell out what damage is said to have been caused as a result of that detriment. The Appellant told us in her oral submissions that her principal object was in fact to obtain an award of compensation for injury to feelings caused by the detriments in question, but that is not spelled out in the submissions themselves”.

Owing to the unclarity and the fact that the tribunal failed to deal with the victimisation claim the EAT sent this back to the ET for a hearing, advising that the acts the claimant was complaining about, the grounds upon which she had made the protected disclosures and the detriment the claimant suffered should be clarified.

The transcript of this case can be found  Here