Mr R Mumford v Helston Garages Group (Management) Ltd: 1403855/2022
EMPLOYMENT TRIBUNALS
Case No 1403855/2022
Between
Mr R MumfordClaimantHelston Garages Group (Management) Ltd At: Bristol Employment TribunalRespondent
Before
Employment Judge CuthbertMr Ryan (instructed by Counsel) for respondentDate 4 October 2023
JUDGMENT
[1]The claimant’s claims for whistleblowing detriment shall not, at this preliminary stage, be dismissed on the basis that they were presented out of time.[2]The presentation by the claimant of those claims was not an abuse of process.
REASONS
[1]The claimant brought claims against the respondent for detriment on the grounds of having made protected disclosures. The present hearing was listed for a oneday, in person, public hearing to address the following issues, which had been identified an earlier telephone case management preliminary hearing, on 9 March 2023:1.1 Consider whether or not the Claimant’s claims for whistleblowing detriment shall be dismissed if it was reasonably practicable for them to have been 1 of 23 brought within the relevant three months’ time limit under s.48(3) ERA 1996. Such considerations are likely to involve when the Claimant first became aware of the enhanced commission scheme.1.2 Consider whether the Claimant’s presentation of his whistleblowing claims by way of a second claim form on 29th November 2022 and not via the first set of proceedings (1400622/2022) was an abuse of process in accordance with the principles as set out in Henderson v Henderson (1843) 67 ER 313.1.3 [issue not relevant as the respondent withdrew this issue].1.4 (If the claims proceed), to conduct any case management necessary to progress the case to a final hearing including listing for a final hearing and setting directions.[2]At the start of the hearing, I explained to the parties that I proposed to deal with the time limit issue (1.1) first in my decision, as the abuse of process issue (1.2) only fell to be considered if the Tribunal had jurisdiction to hear the claim in the first place, if it were in time. I would, however, hear evidence and submissions on both issues before reaching a decision.[3]During the course of the hearing, after the claimant’s oral evidence but before closing submissions, I explained to the parties that, after reflecting over the lunch break, it was apparent that a further issue needed to be addressed, in effect before I could properly consider issue 1.1 above. This was as follows.[4]In order for the issues of reasonable practicability etc, set out under issue 1.1 above, to arise and to be determined if appropriate, consideration would be needed in the first place as to when the normal time limit for presenting the claims expired. Issues around reasonable practicability etc are self-evidently contingent in the first place on a claim being found to be, or just very obviously, out of time and furthermore require a determination as to precisely when the ordinary time limit expired, so as to understand how late a claim was presented. In some cases, this is very clear, such as when employment has terminated and there is no prospect of any continuing acts having occurred after the termination date, and so calculating the start of limitation is straightforward. In the present case, the claimant’s employment was continuing at the point at which he presented his claim.[5]Issue 1.1 was framed narrowly, seemingly on the basis and assumption that the claimant’s whistleblowing claims had invariably been presented out of time. The judge at the last hearing expressly recorded her view that the complaint was out of time. This was not a finding or judgment after hearing relevant evidence and submissions, but was in effect an observation in the case summary. That summary, and the subsequent definition of the issues to be determined, did not expressly include the initial question of whether and when the normal period for presenting the claims had expired. This meant that the parties had prepared for the present hearing, and indeed the first part of that hearing had proceeded, without that crucial initial question at the forefront of things. 2 of 23[6]I explained to the parties that I would consequently need to consider, in addition, the further issue of: 6.1 Were the claimant’s whistleblowing detriment allegations clearly presented out of time i.e. were they based on one-off alleged acts or failures to act, or were they based on a series of similar acts or failures or an act extending over a period, within the meaning of section 48 of the Employment Rights Act 1996?[7]Only if the answer to this issue meant that the claims were plainly out of time would the issue of reasonable practicability etc (as set out in issue 1.1) properly fall to be determined at the present Preliminary Hearing.[8]After explaining and discussing this additional issue with the parties, I heard closing submissions (summarised later in this decision), including on the question of whether the claimant’s claim was for one-off acts or a series of continuing acts. Following the hearing, I also requested one additional piece of information from the respondent, which I mention below, relevant to the same issue.[9]It was not possible to conclude the hearing and give judgment on the day of the hearing for a number of reasons. The parties had not been directed to provide an electronic bundle or copies of any witness statements before the start of the hearing, and hard copies were received around 10 minutes before the scheduled start of the hearing, meaning additional reading time was needed after the hearing started. A fire alarm during the course of the claimant’s oral evidence resulted in a temporary evacuation of the Tribunal building. Closing submissions concluded shortly before 3pm which left insufficient time for deliberation on the two issues to be decided and give oral judgment. So, the decision was reserved. Relevant law Time limits and whistleblowing detriment claims
Relevant law
[10]Section 48 of the Employment Rights Act 1996 contains the following provisions on time limits (emphasis added): 48 (3) An employment tribunal shall not consider a complaint under this section unless it is presented—(a) before the end of the period of three months beginning with the date of the act or failure to act to which the complaint relates or, where that act or failure is part of a series of similar acts or failures, the last of them, or(b) within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period of three months. (4) For the purposes of subsection (3)— 3 of 23 (a) where an act extends over a period, the “date of the act” means the last day of that period, and (b) a deliberate failure to act shall be treated as done when it was decided on; and, in the absence of evidence establishing the contrary, an employer shall be taken to decide on a failure to act when he does an act inconsistent with doing the failed act or, if he has done no such inconsistent act, when the period expires within which he might reasonably have been expected to do the failed act if it was to be done. One-off acts, acts extending ‘over a period’ and ;a series of similar acts’[11]Time starts to run for a whistleblowing detriment claim from the date of the last act (or failure to act) on which the complaint is based, not from the date the employee becomes aware of that act or failure to act (McKinney v Newham London Borough Council [2015] ICR 495, EAT. In McKinney, HHJ Peter Clark also concluded that, in terms of limitation, there was no material difference between the detriment provisions in section 48 above and time limits for claims for discriminatory detriment under the Equality Act 2010.[12]Where the acts or failures constituting the detriment complained of include acts or failures occurring outside the three-month limitation period, as well as one or more occurring within that period, they may all be treated as forming part of a single claim in one of two ways under section 48:12.1 if they all comprise an act extending over a period under section 48(4), or,12.2 if they are all part of a series of similar acts or failures under s 48(3)(a).[13]A “connecting rule, practice, scheme or policy” under which a claimant is subjected to continuing or repeated acts of detriment would amount to an act extending over a period, the Court of Appeal held in Arthur v London Eastern Railway Ltd [2006] EWCA Civ 1358, [2007] IRLR 58, [2007] ICR 193, at para 31. If such a continuing act cannot be shown, and reliance is placed on s 48(3)(a), the claimant must, according to Mummery LJ in Arthur, show that there is some relevant connection between the acts in the three-month period and those outside it which makes it just and reasonable for them to be treated as in time and for the claimant to be able to rely on them, the necessary connections being that they were part of a 'series', and that they were acts which were 'similar' to one another. Mummery LJ also held that a Tribunal should usually hear evidence before deciding such issues and, whilst it is possible to hold a preliminary hearing, this is rarely going to save time and costs, and it may be better to hear all the evidence at a final hearing and include any limitation questions as part of the overall decision.[14]The focus of the Tribunal must be on the date of the act(s) giving rise to a detriment, not the consequences that follow (see: Unilever UK plc v Hickinson and another UKEAT/0192/09) – one-off decision to remove a guard from a site; Vivian v Bournemouth Borough Council UKEAT/0254/10 – one-off decision to place employee in a redeployment pool; Ikejiaku v British Institute of Technology Ltd UKEAT/0243/19 – imposition of a new contract purporting to remove the claimant's 4 of 23 employment status was a one-off event with continuing consequences, not an act which "extend[ed] over a period").[15]Tribunals must identify with precision the act or deliberate failure to act that is alleged to have caused detriment when considering whether an act/omission extended over a period of time. It is a mistake in law to focus on the detriment and whether the detriment continued: a continuing detriment is not to be confused with a continuing cause (see Flynn v Warrior Square Recoveries Ltd [2014] EWCA Civ 68, [2014] All ER (D); Royal Mail Group Ltd v Jhuti UKEAT/0020/16 (19 March 2018, unreported)).[16]By contrast, the suspension of an individual does not occur just at the time they are suspended, but will continue over the period of the suspension (Kilraine v London Borough of Wandsworth UKEAT/0260/15; Tait v Redcar and Cleveland Borough Council UKEAT/0096/08).[17]The above is consistent with the authorities on discrimination complaints and continuing acts (see McKinney above): Barclays Bank plc v Kapur [1991] IRLR 136, [1991] ICR 208, HL, the critical distinction is between a one-off decision which has continuing consequences (and is not 'conduct extending over a period') and a continuing act or continuing state of affairs, where time will therefore run from the end of the period in question (see: Sougrin v Haringey Health Authority [1992] IRLR 416, [1992] ICR 650, CA, ongoing loss of pay was merely the consequence of the earlier one-off decision re-grading the claimant; Okoro and another v Taylor Woodrow Construction Ltd and others [2012] EWCA Civ 1590 – ban on workers attending a site was a one-off decision; c.f. Owusu v London Fire and Civil Defence Authority [1995] IRLR 574 - persistent failure to regrade or offer the opportunity to act up amounted to a prima facie case of a continuing act ‘in the form of maintaining a practice which, when followed or applied, excluded [him] from regrading or opportunities to act up'; Rovenska v General Medical Council [1997] IRLR 367, [1998] ICR 85, CA at [92]; Pennine Acute Hospitals NHS Trust v Power and others UKEAT/0019/11 - EAT remitted the question of whether the substance of the claimant's age discrimination claim concerned the employer's one-off decision to regrade her (in which case, the claim was out of time) or a continuing age discriminatory failure to pay her at a higher rate each time she was paid. On remittal, the Tribunal found it was a continuing failure each time the claimant was paid, not a one-off act)).[18]Evidentially, it is possible for a Tribunal to infer the existence of a continuing act even though the claimant has not in terms alleged the existence of a policy, rule or practice and the respondent has not given evidence about it (Kells v Pilkington plc [2002] IRLR 693, EAT, at para 22, per Lindsay J). Extending time – the ‘not reasonably practicable test[19]The question of whether or not it was reasonably practicable for a claimant to have presented their claim in time is to be considered having regard to the following authorities. 5 of 23[20]In Wall’s Meat Co v Khan [1978] IRLR 499, Lord Denning, (quoting himself in Dedman v British Building and Engineering Appliances [1974] 1 All ER 520) stated ‘it is simply to ask this question: has the man just cause or excuse for not presenting his complaint within the prescribed time?’[21]The burden or onus of proving that presentation in time was not reasonably practicable rests on the claimant. ‘That imposes a duty upon him to show precisely why it was that he did not present his complaint’ — Porter v Bandridge Ltd [1978] ICR 943, CA. In addition, the tribunal must have regard to the entire period of the time limit (Wolverhampton University v Elbeltagi [2007] All E R (D) 303 EAT).[22]In Palmer and anor v Southend-on-Sea Borough Council [1984] ICR 372, CA, the Court of Appeal held that ‘reasonably practicable’ did not mean reasonable, which would be too favourable to employees, and did not mean physically possible, which would be too favourable to employers, but meant something like ‘reasonably feasible’.[23]The following factors were identified in Palmer as being relevant:23.1 the substantial cause of the claimant's failure to comply with the time limit;23.2 whether there was any physical impediment preventing compliance, such as illness, or a postal strike;23.3 whether, and if so when, the claimant knew of his rights;23.4 whether the employer had misrepresented any relevant matter to the employee; and23.5 whether the claimant had been advised by anyone, and the nature of any advice given; and whether there was any substantial fault on the part of the claimant or his adviser which led to the failure to present the complaint in time.[24]Lady Smith in Asda Stores Ltd v Kauser EAT 0165/07 held that ‘the relevant test is not simply a matter of looking at what was possible but to ask whether, on the facts of the case as found, it was reasonable to expect that which was possible to have been done’.[25]Ignorance of a fact, the existence of which was fundamental to the right to complain, could mean that it had not been reasonably practicable to bring a claim. While it would be uncommon for the discovery of a fact for the first time to reveal a cause of action not previously thought to exist, if such a case arose, a Tribunal could hold that it had not been reasonably practicable to present a claim in time (Churchill v A Yeates & Sons Ltd [1983] IRLR 187; Machine Tool Industry Research Association v Simpson [1988] IRLR 212; Marley (UK) Ltd v Anderson [1996] IRLR 163).[26]Only if a claimant satisfies a tribunal that presentation in time was not reasonably practicable, must the tribunal then go on to decide whether the claim was presented ‘within such further period as the tribunal considers reasonable’. In James W Cook & Co (Wivenhoe) Ltd v Tipper [1990] IRLR 386, when eight dismissed employees were told by management that they would be re-employed when work picked up again they did not submit claims for unfair dismissal. After the time limit had expired, the shipyard closed down. Some employees made their complaints to the tribunal 6 of 23 a few days after discovering the closure, some a month later. The Court of Appeal held that a reasonable period in the circumstances was two weeks and dismissed the claims made after that time. Serco v Wells – changes to previous case management orders[27]In Serco Ltd v Wells [2016] UKEAT 0330/15, the EAT held that a Tribunal judge should be sparing in the exercise of its power to vary or revoke an order under Rule 29 of the Tribunal Rules 2013. The fact that an order should be varied if it is "necessary in the interests of justice" should be interpreted narrowly. Variation or revocation of an order or decision will be necessary in the interests of justice:27.1 where there has been a material change of circumstances since the order was made; or27.2 where the order has been based on a misstatement (usually of fact, misstatement of law being more likely to give rise to an appeal) or where there has been an omission to state a relevant fact; or27.3 in other rare and out of the ordinary cases. Abuse of process – Henderson v Henderson[28]The modern approach to the Henderson v Henderson principle was set out by Lord Bingham in the following terms in Johnson v Gore Wood & Co [2002] 2 AC 1: “The bringing of a claim or the raising of a defence in later proceedings may, without more, amount to abuse if the court is satisfied (the onus being on the party alleging abuse) that the claim or defence should have been raised in the earlier proceedings if it was to be raised at all…… It is, however, wrong to hold that because a matter could have been raised in earlier proceedings it should have been, so as to render the raising of it in later proceedings necessarily abusive. That is to adopt too dogmatic an approach to what should in my opinion be a broad, merits-based judgement which takes account of the public and private interests involved and also takes account of all the facts of the case, focusing attention on the crucial question whether, in all the circumstances, a party is misusing or abusing the process of the court by seeking to raise before it the issue which could have been raised before.”[29]In Virgin Atlantic Airways Ltd v Zodiac Seats UK Ltd [2013] 4 All ER 715, at paragraph [18], Lord Sumption said, of the Henderson v Henderson principle: “…where a given matter becomes the subject of litigation in, and of adjudication by, a Court of competent jurisdiction, the Court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case.”[30]In James v Public Health Wales NHS Trust UKEAT 0170/14 the EAT said: 7 of 23 “32. … the question of whether there has been an abuse is not a matter of discretionary decision. It has to be based properly on evidence and approached not only by recognising but by applying the right law [and] … [r]eading the Tribunal Judgment as a whole … to place it in context. …”[31]The EAT in James said that consideration needs to be given to the claimant’s reasons for not pursuing the claim earlier (para 33) and to consider whether evidence in support of the claim alleged to be an abuse would in any event have to be considered in determining a claim not alleged to give rise to such abuse (para 34).[32]In London Borough of Haringey v O Brien [UKEAT/0004/16/LA], HHJ Eady QC (as she then was) held at [59] that there was “no rule of law stating it could not be a Henderson abuse for a party to fail to amend to include all issues live between the parties prior to the full merits determination of the initial claim” and it was an error of law for the Tribunal to state that the principle in Henderson v Henderson did not apply following the submission of the claimant’s second ET1. She went on to hold that on the facts of that case the claimant had the opportunity at a pre-hearing review to apply to amend her claim to add matters occurring after she had presented her first ET1. Considering the Tribunal’s conclusions on the Henderson point with respect to the matters arising prior to the submission of the first ET1 the same reasoning would apply with respect of the events occurring after that and prior to the full merits hearing “(or, at least, sufficiently prior to have allowed for an amendment of the claim)”, i.e. it was a Henderson abuse to pursue complaints in the second ET1 related to such events.[33]In Franked Income Investment Group Litigation v Revenue and Customs Commissioners [2020] UKSC 47 Lord Reed and Lord Hodge (with whom Lord Lloyd-Jones and Lord Hamblen agreed) stated that determining issues as to abuse of process did not involve the exercise of a discretion, saying that: “75 ……..If the court, on making the broad, merits based judgment of which Lord Bingham spoke, concludes that a claim, a defence, or an amendment of a claim or of a defence involves an abuse of process or oppression of the opposing party, it must exclude that claim, defence or amendment. A finding of abuse of process operates as a bar.”
Lord Reed and Lord Hodge continued: “76 ……it is clear that for the courts to uphold a plea of abuse of process as a bar to a claim or a defence it must be satisfied that the party in question is misusing or abusing the process of the court by oppressing the other party by repeated challenges relating to the same subject matter. It is not sufficient to establish abuse of process for a party to show that a challenge could have been raised in a prior litigation or at an earlier stage in the same proceedings. It must be shown both that the challenge should have been raised on that earlier occasion and that the later raising of the challenge is abusive.” 8 of 23 Relevant background to issues 1.1 and 1.2
[35]The claimant was employed as a Sales Executive by the respondent from 6 April 1998.[36]He contends in the present claim:36.1 that he made disclosures to the respondent at a meeting on 22 June 2021 about the respondent informing employees returning from furlough that any commission that they had earned prior to this was lost.36.2 that he told the respondent that he believed that their conduct amounted to a potential fraud on HMRC, abuse of its position against employees and was also an abuse of the Coronavirus Job Retention Scheme.36.3 that on 1 August 2021 the respondent introduced an enhanced commission scheme but did not invite him to participate in it because he had made the disclosures.36.4 that the respondent informed his colleagues not to tell him about their involvement in the commission scheme, which created a negative working environment for him in that people would have hushed conversations behind closed doors and change the subject if he approached him. He says that this resulted in him feeling isolated within the team.[37]For the avoidance of doubt, I do not make any findings on the matters above for the purposes of the present decision. The claimant’s previous Tribunal claim[38]The claimant presented his first claim against the respondent on 15 February 2022. That claim was about a change in the respondent’s commission structure and he said in it that he had also challenged the lawfulness of that structure, which he said amounted to whistleblowing.[39]In May 2022, solicitors instructed at the time on behalf of the claimant withdrew the whistleblowing compliant, which was dismissed by the Tribunal on 31 May 2022.[40]The claimant’s remaining claim for unlawful deduction of wages, in respect of the changes to commission, proceeded to a final one-day hearing on 25 November 2022, and that claim was dismissed by way of reserved judgment dated 15 December 2022.[41]The four-page judgment contained a brief and passing reference in the findings to one factual matter which formed part of the factual background to the present claim, at 4.12: 4.12 In May 2021 the Claimant formally raised his concerns about the commission scheme and on 21 May 2021 a formal meeting was held with the Claimant [65-67].[42]It is not in dispute that the matters set out in paragraph 4.12 of the judgment took place. Otherwise, that judgment concerned issues of contractual interpretation of a commission scheme which pre-dated the enhanced scheme about which the 9 of 23 claimant complains in the present case, and there was no discernible overlap with the present proceedings, factually or legally. The presentation of the present claim and the case management hearing[43]Meanwhile, on 26 September 2022, the claimant sent an email to the Tribunal as follows, as he was by this stage considering the present claim: At the start of the year, the legal representative, who was acting on my behalf at the time, advised me to Include a Whistle Blowing element as part of my ET1 submission. Subsequently they later advised me to withdraw this element as they were unsure of how to proceed and/or what outcome could be achieved. The Employment Tribunal Judgement dated 31st May 2022 refers. However, significant new information came to light in June of this year, and in my opinion, the Respondent has acted in a way that violates both their own Staff Handbook and wider laws covering the Public Interest Disclosure Act. With this in mind, I would like to know whether it is appropriate and possible to re-instate the Whistle Blowing element of my original ET1 submission. I have supplied my proposed disclosure documentation to the Respondent's representative, and am still currently awaiting the final hearing bundle from them. Therefore, I believe there would still be time to make necessary amendments if the above request to re-instate Whistle Blowing is granted.[44]On 3 October 2022, the Tribunal replied as follows: The claimant's email below dated 26 September 2022 has been referred to Employment Judge Smail who has responded as follows: If the Public Interest Disclosure claims the claimant wishes to restore are the same as that he withdrew then no, you cannot withdraw a withdrawal. Any new claim would have to be the subject of a fresh claim/amendment. It would meet time limits objections.[45]On 16 October 2022, the claimant commenced Acas Early Conciliation for the present claim. The certificate was issued on 7 November 2022 and on 29 November 2022, the claimant submitted the present claim online.[46]In the ET1, he relied upon alleged disclosures made in June 2021 and the main detriment complaint concerned an enhanced commission scheme, introduced in mid-2021, which he said specifically excluded him. He said he first learned of the new scheme in June 2022 and that it had resulted in ‘considerable detriment’, financially and emotionally. In the compensation section of the ET1, in response to how much he was seeking, he simply said ‘ongoing hence not yet known’. As part of the background to the June 2021 alleged disclosure (see para 36.1 above) he referred to the May meetings which were mentioned in passing in the Tribunal decision on the first claim (see para 41 above). 10 of 23[47]The respondent’s ET3 and Grounds of Resistance, dated 9 February 2023, included points on both the claim being out of time and an abuse of process.[48]The claimant submitted a reply to the Grounds of Resistance on 21 February 2023. This document included the following assertions (emphasis added):48.1 “The Current Claim is for the Respondent's violation of Whistleblowing protections, which has resulted in considerable detriment both financially and emotionally. The direct financial detriment alone is in excess of £20,000 to date, and is ongoing”.48.2 “Early Conciliation for the Current Claim began in mid-October 2022 — well within the 3 months beginning 26th August 2022 (the date on which it was confirmed that the enhanced commission scheme existed and was in place for all Volvo Executives with the specific exclusion of myself)”.48.3 “And here we have finally reached the crux of the matter! I was never placed, and have still not been placed, on the same enhanced monthly commission scheme as all other Volvo Sales Executives that was introduced for them on 1st August 2021. Instead, I have been paid on a punitive commission scheme, (that was replaced by the enhanced monthly commission scheme). I believe that I was not placed on the enhanced commission scheme as a direct result, and punishment, for raising a Protected Disclosure/Whistleblowing. And this is the basis on which I have raise this Current Claim”.48.4 “As stated in Point 17 above, I was never placed, and have still not been placed, on the same enhanced monthly commission scheme as all other Volvo Sales Executives. Had I been placed on the enhanced monthly commission scheme with effect from 1st August 2021, I would've earned somewhere in the region of an additional £20,000 to date when compared to my actual earnings. This figure is for illustrative purposes only. It is the minimum financial detriment I have suffered, and is ongoing”.[49]The telephone case management preliminary hearing took place on 9 March 2023. The claimant’s detriment claims were defined by the judge as follows: 3.1 Did the Respondent do the following things:3.1.1 Exclude the Claimant from participating in the enhanced commission scheme that was introduced on 1st August 2021 which he says he ought to have been entitled to join.3.1.2 Tell colleagues not to tell him about the commission scheme, thereby creating a difficult working environment for him which included hushed conversations and people changing the subject when he approached them.[50]The claimant’s reply document mentioned above at paragraph 48 was not referred to in the 9 March 2023 CMO, and so may not have been before the Tribunal at the hearing. The CMO said: ‘on the face of it time for presentation expired on 31st October 2021. The Claimant did not present his claim to the tribunal until 29th November 2022 having made a notification to ACAS on 16th October 2022. The EC certificate was issued on 7th November 2022. Therefore the complaint is out of 11 of 23 time’. The present hearing was listed to address the time and abuse of process points, framed by the judge as set out at paragraph 1 above. The claimant’s evidence at the present hearing[51]I heard oral evidence from the claimant about the events surrounding his discovery of the enhanced commission scheme (see issue 3.1.1 set out in para 49 above) and the subsequent presentation of the present claim. The evidence for the present hearing had been prepared by both parties and proceeded to be heard on the underlying assumption, reflected in the issue at paragraph 1.1 above, that the claim was out of time on its face. It was only after the evidence was heard that I raised the point about the possibility of a continuing act and the claim not being out of time at all, as that was when that point became apparent to me.[52]The claimant discovered the enhanced commission scheme following some conversations with colleagues on 17 and 18 June 2022. He did not feel able to pursue a claim at that time based simply on what they had told him, as he regarded that as ‘hearsay’. The claimant’s evidence was that the colleagues had been reluctant to discuss this issue with him and that one of the colleagues said he was told by the respondent that his commission would be removed if he did so.[53]He had conversations with his solicitors (who were still instructed until 6 July 2022 but were in the course of withdrawing from the claim) and sought further disclosure and information from the respondent (within the proceedings relating to his first claim, which was still ongoing at that time). He said his solicitors said the claimant’s discovery was new evidence and so was a fresh matter.[54]The claimant received confirmation of the existence of the new commission scheme from the respondent on 30 August 2022. He knew that there was a threemonth time limit but that he was told by Acas that time had not started to run until 30 August 2022.[55]He said that he understood from conversations with Acas and from the direction from EJ Smail (see para 44 above) that he needed to bring a fresh claim about the enhanced commission scheme and that he could not link the first claim and the second claim together. He said that he did not mention the looming second claim to the judge at the hearing of the first claim on 25 November 2022 because he did not think he could do so.[56]The claimant was asked in cross-examination about potential similarities and crossover between the first claim and the second claim. He said that first claim was about changes to commission structures; the present claim was “purely that [he] should have had protections under whistleblowing provisions and they violated those and isolated [him] and threatened colleagues”. He said that there was “clear blue sky – a totally different case”.[57]After the conclusion of the present hearing, on 8 September 2023, I directed that the respondent inform the Tribunal whether or not the enhanced commission scheme (issue 3.1.1 in the list of issues – see para 49 above) remained in place, and, if not, when it ceased. This seemed a straightforward factual request as there 12 of 23 appeared to be no dispute between the parties about the underlying basis of issue 3.1.1 and the enhanced commission scheme.[58]In its response dated 21 September 2023, the respondent’s solicitor stated, obliquely: The additional one off advance commission offer referred to in paragraph 16 of the Respondent’s amended grounds of resistance (paragraph 15 of the original grounds of resistance) and set out at page 141 of the bundle (which we understood was the scheme covered by paragraph 3.1.1 of the issues) ended on 31 October 2021. Notwithstanding the above, we now understand from the evidence and submissions made by the Claimant at the preliminary hearing on 7 September 2023 that he was also complaining about a change that was made to the monthly commission scheme in respect of the used car percentage gross profit with effect from 1 August 2021. In terms of that aspect of the scheme, an offer was made to each Sales Executive at Volvo Helston Garages to move onto a replacement commission scheme (alongside other proposed changes to their terms and conditions of employment) with effect from 1 April 2022. The offer made to each Sales Executive was accepted by all affected employees except for the Claimant and one other employee. Accordingly, after 1 April 2022, the commission scheme with the revised used car percentage gross profit only continued to operate in respect of one employee until 5 January 2023, when he left employment so nobody remained on those terms thereafter.[59]The claimant replied as follows the same day: With all due respect, I am unsure whether the Respondent’s representative is deliberately ‘muddying the waters’, or whether they genuinely do not understand the matter in hand. The simple answer to the question asked by Judge Cuthbert in his email dated 8th September 2023, is that the commission scheme (Para 3.1.1 of the issues refers) continued to operate until 31st May 2023. For the benefit primarily of the Respondent’s representative, I will once again clarify: The ‘additional one off advance commission offer’ is irrelevant as said offer was never made to me. This point was discussed at the Preliminary Hearing on 7th September 2023, and it was made clear to the Respondent’s representative that any mention of the offer serves no purpose in the Current Claim and can be disregarded in its entirety. The ‘additional one off advance commission offer’ is of no interest to me, was not made to me, and forms no part of this Claim. With regard to paragraph 3 of the Respondent’s representative’s email below (starting with the words “Notwithstanding the above…”), the Respondent’s representative is entirely confusing two completely separate commission schemes: 13 of 23 The ‘used car percentage gross profit’ commission scheme is, in fact, the Enhanced Commission Scheme, which is the scheme mentioned in my ET1, and is at the very heart of this entire matter. The Enhanced Scheme was introduced on 1st August 2021 for all Volvo Sales Executives with the EXCEPTION of myself. With regard to the ‘replacement commission scheme …. with effect from 1 April 2022’, this was NOT a replacement commission scheme. It was not a commission scheme change, but a basic salary increment for working an extra day per fortnight. I chose not to accept this salary increment. Any colleagues who did accept this salary increment REMAINED on the Enhanced Commission Scheme (which you will recall is the scheme that I was not aware of at that point in time). This incorrectly named ‘replacement commission scheme’ is of no relevance to this Current Claim and can be disregarded in its entirety. With regard to the sentence starting ‘Accordingly, after 1 April 2022, the commission scheme with the revised used car percentage gross profit only continued to operate in respect of one employee’, this is incorrect. The Enhance Commission Scheme continued to operate for all Sales Executives (with the exception of myself) until June 2023. … For absolute clarity: the Enhanced Commission Scheme was introduced on August 1st 2021, for all Volvo Sales Executives, with the exception of myself. I was excluded from the Enhanced Commission Scheme because I had raised a Protected Disclosure under the Respondent’s Whistleblowing Process. This Current Claim is for the violation of Protected Disclosure rules, regulations and protections, and the detriment caused as a result of these violations.[60]The claimant’s position is therefore clearly that the enhanced commission scheme in issue 3.1.1 continued to operate until June 2023, well after the submission of his second ET1. The respondent’s position on the enhanced scheme is, regrettably, not at all clear from its email. The respondent’s submissions[61]Mr Ryan, on behalf of the respondent, provided a 12-page written closing skeleton argument and made oral submissions, dealing with both the time limit and abuse of process issues. I considered these in full and summarise them as follows.[62]In his written submissions, he summarised the respondent’s position on time limits as follows: R relies upon the following:a. The C’s general knowledge of the 3 month deadline. 14 of 23b. The C, acting reasonably, would at the very least have been prompted into investigating further the right course of action, no matter what misunderstanding he had (if any) about his potential claims and when the clock started to tick. The ET website also offers advice on how to make a claim and what to include. In modern times, ignorance is no excuse.c. C ought to have known of his right to claim, even though he did not in fact know of it (or at least did not know that the clock had started ticking). It is submitted (see Harvey on Industrial Relations) that with widespread public knowledge of tribunal rights it is difficult for an employee to plead ignorance successfully, or take risks with time limitations.d. The C’s position / excuse could be described as “Legal advice excuse / error” (i.e. his instructed solicitors not telling him of the dangers of failing to raise the amendment prior to the hearing in the first claim, or bringing the claim immediately upon his knowledge, even if it was a holding ET1).In terms of reasonable practicability, there are a number of authorities on this issue that the ETJ will be aware of; Dedman v British Building and Engineering Appliances Ltd [1974] 1 All ER 520; Wall's Meat Co Ltd v Khan [1978] IRLR 499; Papparis v Charles Fulton & Co Ltd [1981] IRLR 104, EAT, Trevelyans (Birmingham) Ltd v Norton [1991] ICR 488, EAT),e. As confirmed in Dedman if the C puts his case into the hands of professional advisers he cannot plead ignorance if the professional advisers are wrong. This principle was discussed further by the Court of Appeal in Williams-Ryan and the EAT in Northamptonshire County Council v Entwistle [2010] IRLR 740 (where no extension of time was granted where employee's solicitor negligently failed to spot error by employer in setting out the time limit for presenting a claim). Of course, there is no hard and fast principle to the effect that reliance upon wrong advice cannot avail the claimant under any circumstances. The question of reasonable practicability is one of fact for the tribunal that falls to be decided on the particular circumstances of the case.f. Also see NHS Foundation Trust v Zoo [2018] UKEAT/0066/18 where it was held that the claimant would not be entitled to simply rely on her confidence in what her advisers had done, the real question would then become whether the claimant's advisers had acted reasonably.g. Furthermore, the Court of Appeal in Riley v Tesco Stores Ltd [1980] IRLR 103 (incorrect advice from an adviser from the CAB) held “If you have retained a skilled advisor and he does not take steps in time, you cannot hide behind his failure. There may be circumstances of course where there are special reasons why his failure can be explained as being reasonable”. The instant case does not set out “special reasons”.h. A lack of knowledge of time limits or ignorance or faulty legal advice will rarely suffice on its own. Whilst the test to be applied by this ET is not one of just and equity, even comparing the facts of the instant case to such authorities highlight how the reasons relied upon by the C are wholly inadequate. For example, see Gloucester WMC v James (1986) ICR 603 where Popplewell J said that the EAT 15 of 23 “…would not like it to be thought that the mere fact that an applicant puts his case in the hands of a solicitor who, for one reason or another, is out of time, is a good reason for a tribunal…saying that it is just and equitable to extend the time limit. If there were the sole matters, we would have very grave doubts as to whether that was a valid reason for extending time”.i. That is, if it would not be just and equitable to extend time simply due to the fault of a legal adviser, then it is even more difficult to consider any error by advisors as reasonablej. Therefore, it may be the case that C’s proper claim is against his legal advisorsk. The position in these types of cases is best summarised (as ever) by Lord Denning:• reasonable practicability meant “what was possible”? (Dedman); and• "If [the claimant’s] advisors could reasonably have been so expected [to meet the deadline], it was his or their fault, and he must take the consequences” (Wall's Meat - at page 501 of the report – endorsing the view in O'Regan – (the TU advice case) a “decision with which I agree", said Lord Denning). 12. Also the C did not act reasonably or swiftly once he had further evidence of the enhanced commission scheme (July); he did not engage ACAS until October. That further evidence was not necessary for him to submit a claim/amendment. There is no good reason to delay submitting a claim or making the amendment.[63]In oral submissions on time limits, Mr Ryan said that:63.1 the claimant’s case was based on him having been denied the new commission scheme from 1 October 2021. That was when he says he should have been placed on the scheme. There was no other claim for the Tribunal to deal with. It was a one-off act and the focus should be on the pleaded case.63.2 The claimant did not say he considered the detriment to have continued – it was a one-off decision with continuing consequences. Issue 3.1.1 in the list of issues [from the previous CMO] was framed as a decision to exclude the claimant from the commission scheme – there was no suggestion that there was a further act. The Tribunal should not step into the arena. The Tribunal should look at the legal pleading and the case management order.63.3 The claimant had said he did not become aware he had suffered detriments until 17 June 2022 and claimed he did not have sufficient evidence until the end of August 2022. The respondent’s case was that the claimant was refusing to be on monthly commission and the benefits were implemented because of his concerns. The claimant did not wish to be involved. That was the background.63.4 By the time the claimant had knowledge on 17 – 18 June, the Tribunal should conclude that the claimant should have been fully aware of the dangers of dragging his feet. He still had legal advice available for 2.5 weeks at that time.63.5 In that time, it appeared that the claimant was informed that he should bring a new claim and was not informed that he should act promptly and to make sure he raised all his complaints in one set of proceedings.63.6 Time runs from the act. But it would have been difficult to bring a claim if the claimant did not know of the detriment. In the eyes of the law the claim was clearly out of time. 16 of 2363.7 The respondent says it was reasonably practicable for the claimant to bring the claim promptly. He was very concerned on 17 - 18 June – he thought he had an idea of what was going on.63.8 His legal advisers and did not tell him what they should have done – they should have said ‘you had better act promptly’. The claimant was not told this. The claimant’s case rests against his previous solicitors.63.9 The claimant did not act promptly when he contacted Acas on 11 October 2021 by email.63.10 The claimant had described what he was told by Acas and the Tribunal as “legal advice”. A claimant acting reasonably especially with this claimant’s knowledge would have sought further legal advice.[64]On the abuse of process issue. Mr Ryan summarised the respondent’s position as follows in his written submissions:a. In this case the tribunal is clearly dealing with the rule in Henderson v Henderson and/or whether there is an abuse of process in the bringing of the “Second Claim”.b. The very fact that an employer is faced with two claims where one could and should have sufficed will often of itself constitute oppression. It is not necessary to show that there has been harassment beyond that which is inherent in the fact of having to face further proceedingsc. The tribunal should balance all factors in this case and apply the balance of justice. A broad-brush approach is required. The tribunal should consider the facts of a case, and the private and public interests at play. The private interest at play is that of a party not being vexed twice for the same reason and the public interest is that of the state in not having issues repeatedly litigated. The focus of the exercise should be asking the crucial question of whether, in all the circumstances, the Claimant is misusing or abusing the process of the Tribunal by seeking to raise before it the issue which could have been raised befored. When considering whether a claim could and should have been brought in earlier proceedings, it has been held that it is not just claims that accrued before the presentation of the earlier claim that are liable to be dismissed as being an abuse of process but also those that accrued up to the date of the full merits hearing of the claim. According to Judge Eady QC in London Borough of Haringey v O’Brien UKEAT/0004/16 (22 December 2016, unreported), where further claims accrue between presentation and the merits hearing, they should be added to the existing proceedings by way of amendment, otherwise it may be an abuse of process to bring them in separate proceedings at a later stage. In O'Brien the claimant sought to bring disability discrimination and other claims in a second set of proceedings after similar claims had been disposed of in earlier proceedings. Some of the claims were in respect of matters that preceded the presentation of the first complaint, and these were held to have been rightly dismissed by the employment tribunal as an abuse of process under Henderson v Henderson. But some other claims accrued during the 17 of 23 period between the presentation of the first complaint (30 March 2011) and the merits hearing (December 2011), and the employment tribunal allowed them to be heard. Judge Eady held that it was wrong to do so. Given that it was possible for these to have been added by amending the first claim, there was no good reason to differentiate between these matters and the matters occurring before presentation. The cut-off date was the full merits hearing 'or, at least sufficiently prior to have allowed for an amendment of the claim' (see para 59 and 60).e. Therefore, the Henderson and Henderson point comes into play in this case. This is designed to lead to finality in litigation and to prevent the Respondent from having to deal with what would be a kind of drip, drip of related claims that should have been brought together all at the same time.f. The Claimant’s opportunity to pursue the allegations of victimisation in relation to commission was at the hearing for the First Claim or at least when he first raised the matter with the Tribunal, in advance of the hearing for the first claim - so that all the matters that were connected could be heard together. He chose not to do that and it would be an abuse to allow him to pursue that allegation through this second claim.g. The C’s potential misunderstanding over the ET’s correspondence at [122] should not have continued after he had received advice from his solicitor between 18 June and 6 July1.h. Where there is abuse, the Court has a duty, not a discretion, to prevent it: As per Hunter at p. 536, in regard to the Civil Courts.[65]The additional oral submissions from Mr Ryan on the abuse of process point were as follows:65.1 The claimant appeared to suggest he did not bring a claim because he was concerned about “hearsay” and wanted to avoid wasting Tribunal time. The bigger concern was wasting time at the first hearing which was “significantly overlapping”. The previous claim was a lost opportunity – one Tribunal dealing with the same factual circumstances. A Tribunal in future would be bound by the findings.65.2 The claimant did not raise the further claim at the start of the 25 November 2022 hearing.65.3 Had the claimant raised the further claim at the November 2022 hearing, he would potentially have been granted an amendment and time could have been saved.65.4 After receiving the Tribunal’s email on 3 October, he did not seek further legal advice. He could have spoken to other solicitors and should have sought 1 This point is based on a factual error – the correspondence at page 122 was the email from the Tribunal set out at para 44 above. This was sent on 3 October 2022 which post-dated the last involvement of the claimant’s solicitors by around three months. 18 of 23 advice. The respondent’s primary point was that the claim should have been submitted well before that date. The claimant’s submissions[66]The claimant’s oral submissions were as follows, in summary:66.1 The claim was made in a reasonable time period.66.2 The respondent went out of its way to conceal its actions – their concealing actions caused the issues in the first place.66.3 He found out about the commission scheme in mid-June from people who were threatened – he could not put them in a further situation. The delay was down to the respondent’s failure/refusal to confirm what was going on. It took them 10 weeks to supply the evidence.66.4 Once the evidence was supplied, he sought advice asked questions.66.5 He took the Tribunal’s email ‘as gospel’ – it was not relied on as legal advice.66.6 He did not follow the point about an ongoing or a one-off act. If the respondent continued the act of violating the commission process every month, which they had paid and only stopped the violation of paying in June this year – when does that start and stop?66.7 It was only in June 2022 that he heard of the new enhanced commission scheme. It was wrong to say he should have acted on the words of colleagues who had been threatened and instructed not to discuss it with him. He could not bring the claim – it would have been irresponsible – he had to get evidence.66.8 The respondent played on a claim against his previous sols – they had said the claimant needed a new claim.66.9 He asked the Tribunal what he should do next and if he could add the new element in – he had a response and was instructed to do something different.66.10 In early October, he contacted Acas They told him that the three-month window started on 30 August 2022.66.11 There was no abuse of process – he had acted on advice from the judge and from Acas There was no intention to abuse process.66.12 His first Tribunal claim had no provision of whistleblowing to be decided upon – the present claim was about violations because of whistleblowing – it was totally separate. Discussion and conclusions[67]My decisions on the two issues are as follows. The time limit issue[68]I deal firstly with the time limit issue.[69]As indicated at paragraph 4 above, the question of reasonable practicability within section 48(3)(b), set out in the issue at paragraph 1.1 above, cannot be addressed without, in the first instance, it being determined when the ‘period of three months’ specified in that same subsection has expired. The issue of reasonable practicability does not arise at all if in fact the claim was presented in time, within that ‘period of three months’ (plus any extension due to Acas early conciliation). 19 of 23[70]In either case, there must be a determination of the date on which the act, or the last act, of detriment occurred, in accordance with section 48(3(a). That date is to be determined in accordance with the caselaw set out above.[71]Whilst this issue had not been expressly identified in the CMO for consideration at the present hearing, in accordance with Serco v Wells, if any express variation of that CMO is necessary, the interests of justice plainly require the issues to be varied to include consideration of the ‘last/act/period of three months’ issue.[72]I have considered:72.1 The manner in which the claimant’s detriment claim was pleaded in his ET1 (see para 46 above). The pleading was brief and the claimant was a litigant in person.72.2 The manner in which the claimant further explained his claim in the reply to the respondent’s Grounds of Resistance (see para 48 above), which repeatedly indicated the ongoing/continuing nature of the loss of commission each month.72.3 The manner in which the issues were defined at the previous hearing (see para 49 above). I am also mindful here of the case of Moustache v Chelsea and Westminster NHS Foundation Trust [2022] EAT 204 in which the EAT cautioned that, whilst a list of issues is a helpful case management tool, it should not be slavishly adhered to, nor elevated to a formal and rigid pleading, such as to preclude a fair and just trial of the real issues in accordance with the overriding objective.72.4 The caselaw on the distinction between(i) one-off acts on the one hand and(ii) acts extending over a period or a continuing series of acts, set out above between paragraphs 11 to 18. I note, for example, that in the Pennine v Power case, the EAT recognised the possibility that monthly reductions in pay could give rise to a ‘continuing act’ situation.72.5 The comments of Mummery LJ in Arthur to the effect that it is not normally appropriate to consider the distinction between one-off acts and continuing acts at a preliminary stage but rather instead after all of the evidence has been heard.72.6 The parties’ respective submissions, set out above.72.7 That the issue of when the act, or last act, of detriment occurred had not been expressly flagged for determination at the present hearing, such that all of the potentially available evidence needed to determine it was not available.72.8 That there is evidently a significant factual dispute between the parties about when the enhanced commission scheme in issue 3.1.1 of the list of issues operated and when it ceased to operate (see paras 57 to 60 above).[73]I have concluded that the claimant’s claim may not be out of time at all. It is possible on the one hand, as the respondent contends, that the decision to exclude the claimant from the enhanced commission scheme may be found to be a one-off act which occurred in 2021, with continuing consequences and as such it would be out of time, subject to a ‘not reasonably practicable’ extension; on the other hand, it is also possible that the exclusion of the claimant each month from that commission scheme and the payment of a lesser sum, may be found to amount to a continuing state of affairs of the sort envisaged in Pennine v Power, a case under the 20 of 23 equivalent time limit provisions applicable to discrimination claims. In the latter situation, the claim would not be out of time, depending in part on when the enhanced commission scheme ended.[74]There is simply insufficient evidence available to me to determine this question at this preliminary stage, particularly in the absence of any clear evidence about the enhanced commission scheme and the apparent dispute about the scope and duration of this scheme.[75]Therefore, in terms of the issue set out at paragraph 1.1 above, my decision is simply not to dismiss the claims on the basis set out in that paragraph. This is because I am not able to determine when the act, or last act, of detriment occurred and cannot therefore determine when the ‘period of three months’ in section 48(3) expired. That issue will need to be determined at another hearing, most likely the final hearing after all of the evidence has been heard, as, if applicable, will any issues of reasonable practicability etc if the claim is found to have been presented out of time. The abuse of process issue[76]Turning to the abuse of process issue, in line with the authorities above, I must consider what were the claimant’s reasons for not pursuing the present claim earlier, taking account of the public and private interests involved and also the facts of the case. I must focus attention on the crucial question as to whether, in all the circumstances, the claimant has misused or abused the process of the Tribunal by seeking to raise, in the present claim, an issue which could have been raised before. I must reach a broad, merits-based judgment on the issue.[77]The relevant facts are as follows:77.1 The claimant brought the first claim, in February 2022, in respect of a separate commission scheme which pre-dated the scheme in issue in the present claim.77.2 He included a whistleblowing detriment complaint in that earlier claim, but the claim was withdrawn and dismissed in May 2022. There was no actual detriment identified in the first claim and it simply appears that the claimant was referring to the fact that he considered he had raised a whistleblowing disclosure. The first claim proceeded from that point until its conclusion as an unlawful deduction from wages claim only.77.3 The claimant first discovered the facts giving rise to the present claim on 17 – 18 June 2022, the existence of the enhanced commission scheme, but he did not consider that he could simply rely on what he had been told verbally by his colleagues.77.4 The claimant’s solicitors ceased to act for him on around 6 July 2022. Before doing so, they told him that the new evidence he had discovered would need a new claim. From that point onwards, he proceeded as a litigant in person.77.5 The claimant sought confirmation of the existence of the enhanced commission scheme from the respondent, which he subsequently received on 30 August 2022.77.6 The claimant wrote to the Tribunal in September 2022 and asked whether he could reinstate his whistleblowing complaint within the first claim. He 21 of 23 understood from the reply from the Tribunal that he could not do so and that he would need to bring a new claim (see para 44 above).77.7 The claimant also believed, from conversations he had with Acas in October 2022, that he would need to present a new claim.77.8 The claimant did not raise the present claim with the judge at the hearing of the first claim on 25 November 2022, because he did not believe that he could do so. There was no material overlap between the facts of the first claim and the facts of the present claim – there was one brief reference in the Tribunal’s findings to some undisputed facts that the claimant raised concerns with the respondent in May 2021, which form part of the background to the present claim (see para 41 above).77.9 He presented the present claim on 29 November 2022, for whistleblowing detriment only.[78]The claimant did make a positive effort to see if he could include the present claim as part of the first claim, in his email to the Tribunal of 26 September 2022. He understood from the Tribunal’s response that he could not do so. He was a litigant in person. The response from the Tribunal referred to a new claim being needed, which was broadly consistent with what he understood from his former solicitors and what he took from later conversations with Acas. There was a reference by the Tribunal in the emailed response of 3 October to the possibility of an amendment, but the claimant was a litigant in person and it was not unreasonable for him in the circumstances to construe that email as meaning that he needed to bring a new claim. In short, he did not bring the present claim within the first claim because he reasonably believed that he could do so.[79]The present case is distinguishable from O’Brien v Haringey. That case involved substantial overlap between the claimant’s first claim, presented in March 2011, and the claimant’s second claim, presented in April 2012, both including claims for disability discrimination, with the second claim including matters which occurred prior to the hearing of the first claim, which took place in December 2011. As the EAT found at para 58 of its decision, there was such a close link between some of the matters giving rise to the abuse of process that they would also have given rise to a cause of action estoppel point (something which was not pursued in the present case). There was considerable overlap factually and legally, which is absent here.[80]The Tribunal in O’Brien had also found that, had the claimant in that case pursued all of her complaints of discrimination arising from disability, failure to make reasonable adjustments and harassment relating to disability at the first hearing in December 2011, a key witness of the respondent would have been in a position to give evidence in relation to them2. The fact that those matters were not put before the Tribunal did not involve any genuine mistake – the claimant was represented by a trade union and solicitors and they had decided not to seek to amend. The EAT also held that the claimant could have applied to amend her first claim to include the matters occurring after its presentation (Prakash) and there had been a Pre-Hearing Review in the first claim on 22 August 2011, in good time before the final hearing in December 2011, which provided the claimant with the opportunity 2 By the time of the hearing of Ms O’Brien’s second claim, this key witness for the respondent had left the country and was not prepared to be a witness. 22 of 23 to do so. The facts of the present claim, set out above, are markedly different in various respects.[81]Turning back to the present claim, I have also considered what might have occurred, had the claimant, at the one-day hearing of the first claim on 25 November 2022, raised the issue of the present whistleblowing claim and proposed an amendment to include the present claim within the first claim. The respondent suggested that he ought to have done so. Had this occurred and had the factual and legal basis of the present claim been explained to the judge, most likely outcome is that the judge would have simply continued to hear and determine the first unlawful deductions claim only. I reach that view given the lack of commonality between the factual and legal basis of the two claims. The alternative would have been to amend the first claim to include the second claim and invariably postponing the 25 November hearing, which both parties had prepared for and attended. That would simply have wasted time and costs and would have been contrary to Rule 2.[82]I conclude that the present claim does not amount to an abuse of process. The claimant is properly entitled to pursue it.