Plead It or Lose It: EAT Reaffirms Limits on Tribunal Intervention in Whitaker v WRAT & LEG

In Whitaker v WRAT & LEG [2026] EAT 43, the Employment Appeal Tribunal revisits the boundaries of judicial intervention where claimants appear in person. Jessica Ashcroft reviews the judgment and considers its practical lessons for employment practitioners, particularly on raising alternative s.43K routes at the pleading stage. A link to the judgment can be accessed here.

Background

The respondents to the claim were White Rose Academies Trust (“R1”) and Luminate Education Group (“R2”). R1 is a multi-academy trust and R2 was its statutory sponsor.

R1 did not dispute that the Claimant (“C”), who was promoted to CEO of the Trust in 2019, was its employee. R2, however, asserted that he had never been engaged by it as an employee or a worker.

Between January 2024 and March 2025, the Claimant presented three claims against the respondents:

1. 23 January 2024: against both respondents for whistleblowing detriment [C was professionally represented when the claim was presented].

2. 1 July 2024: against R1 only for further whistleblowing detriments and unlawful deduction from wages [C was still professionally represented].

3. 1 March 2025: against both respondents for unfair dismissal, whistleblowing detriments, holiday pay, arrears of pay and other payments [C was unrepresented by the time this claim was presented].

C was professionally represented at the first case-management preliminary hearing (“PH”) on 20 January 2025, but acted in person at the three-day status PH before EJ Armstrong on 7 July 2025. At this hearing, it was determined that C was neither an employee nor a worker of R2 within the meaning of section 230 Employment Rights Act 1996, and dismissed all of his complaints against it.

On 1 September 2025, C issued a Notice of Appeal which raised four key issues for the EAT to decide.

Issues:

1. Could reliance on a section 43K(1)(a) Employment Rights Act 1996, which extends the meaning of “worker” for the purposes of the whilstblowing deteriment provisions, be inferred from the case as pleaded?

2. If not, did the tribunal err in failing to identify and determine a section 43K(1) case even though that was not pleaded?

3. Should the tribunal have considered section 43K(1)(a) as a matter of course?

4. Should C be permitted to run the section 43K argument as a new point in the EAT?

Appeal judgment

The appeal was dismissed.

Issue 1

The EAT concluded [at para 37]: that the pleaded case, on a fair and objective reading, was “the claimant was a section 230(3) worker, and not that he was, in the alternative, a section 43K(1)(a) worker.” The Armstrong Tribunal did not err, therefore, by failing to identify and address a component of the claimant’s pleaded case (Moustache v Chelsea and Westminster Hospital NHS Foundation Trust [2025] EWCA Civ 185 considered and applied).

The Tribunal also relied on previous authorities which held that it is not possible, simultaneously, to be both a section 230 worker and a section 43K worker of the same employer. It found C had advanced a case he was the former, but not the latter in the alternative.

Issue 2

In determining whether the Tribunal should have identified and determined a section 43K(1) component in any event, the EAT concluded that the Tribunal did not err by failing to do so as [at para 49]: “…this is not a case where the section 43K(1)(a) argument and analysis was one which “shouted out” in the McLeary sense, nor that it was for any other reason one in which, in Moustache terms, the fundamental duty of fairness meant that it was “necessary (that is to say, essential)” that the tribunal raise and consider it.”

Issue 3

This case was not in a category in which a point not advanced by a claimant should be considered by the tribunal “as a matter of course”: Langston v Cranfield University [1998] IRLR 172 considered.

[para 56]: “…None of the established examples involves a tribunal being required as a matter of course to consider separate provisions of the statute which the party concerned has not in fact relied upon, and which set out a distinct legal test from that which the case presented to the tribunal requires it to apply.”

Further, the judgment warns that the EAT should be “very circumspect before extending the list beyond those long-established and familiar categories in which the point in question is to be regarded as being ordinarily a sub-strand of the issues falling under the umbrella of the particular statutory provision the tribunal is applying …”

Issue 4

Applying the guiding principles summarised in Secretary of State for Health v Rance [2007] IRLR 665, the EAT also declined to permit the Claimant to run the point for the first time at the appeal stage.

[para 58]: “This is a case where determination of the section 43K(1)(a) issue would…at least have required further evaluative conclusions and determinations by the tribunal, which the EAT is not in a position to do in the same way that the tribunal could, and, potentially, further fact finding, which the EAT could not do at all. I do not consider that the EAT is in possession of all the material that would enable it fairly to dispose of the issue.”

Comment

I anticipate that this judgment will be a welcome clarification for Employment Judges for whom the exercise of ensuring procedural fairness for unrepresented litigants whilst maintaining the Tribunal’s independent arbitral function is often finely balanced. Certainly, the Employment Tribunal process is not perfect, and in certain circumstances there will be a need for the Judge to exercise their discretion and intervene or assist a litigant in person in clarifying the issues in accordance with the overriding objective. This discretion should, however, be treated as just that: a discretion to be used as and when it is required, as opposed to a general duty on the Tribunal to “step into the arena” and suggest or determine issues that have not been pleaded.

The EAT’s analysis as to the weight that it should attribute to the Claimant’s status as a litigant in person is interesting in this respect. The judgment appears unsympathetic to submissions highlighting this status on account of the fact that (a) he had been represented during the pleading stage and when the list of issues was agreed at the initial preliminary hearing, and (b) he appeared to have a sufficient understanding of the relevant statutory provisions, as demonstrated by the content of his pleadings and by the submissions he made at the status hearing, where he appeared without representation.

Practical Takeaways

This more stringent approach and reluctance of the EAT to extend the examples where issues are required to be considered ‘as a matter of course’ has practical implications for practitioners who become involved in such a case at an early stage. The importance of ensuring that potentially relevant arguments are articulated at the outside is clear from the judgment, and will inevitably require a degree of frontloading for both solicitors and counsel in the preparation process. In short, where there is a possible alterantive route to jurisdiction, it should be clearly pleaded as an alternative case. In tripartite arrangements, it is always likely to be sensible for those advising claimants to consider s43K(1).

Further, the relatively little weight attributed to the Claimant as a litigant in person should serve as a caution to claimants who have already received legal representation before appearing as a litigant in person, as the Tribunal’s responsibility to offset any imbalance between the parties may be correspondingly reduced in these circumstances.

Finally, and somewhat disappointingly, although the EAT acknowledged as an “important legal issue” [para 50] the doctrinal question of whether the s. 43K(1)(a) definition requires a contract with the putative employer, it declined to address this point in its judgment.

The judgment is also silent as to the duties and obligations of counsel when acting in proceedings where there is a litigant in person. It was not suggested in this case there was any duty on the respondent to have identified an alerternative claim for the Claimant. Whilst the duty on barrister is not to be impartial in the same way as a judge, the balancing exercise (some might say, tension) between a barrister’s duty to act in the best interests of the client and the overriding duty to the court to act in the interests of justice is not clear cut. However, I am sure I am not alone in saying that guidance on how represented parties should navigate the intersection of adversarial

representation and fairness to unrepresented parties would certainly be welcomed in future judgments.