Arshad v University of Glasgow: requiring amendment of pleaded whistleblowing claim was an inadvertent strike out

The Employment Appeal Tribunal has ruled that a tribunal effectively struck out a whistleblowing detriment claim when it directed a litigant in person to apply to amend, because the claim was already apparent on the face of her ET1.

In Arshad v The University of Glasgow [2026] EAT 156, Recorder Fraser Butlin KC allowed an appeal against a case management decision of the Glasgow employment tribunal, sent to the parties on 17 April 2026.

A claim in two parts

Miss Arshad, a disabled postgraduate research student, began part-time work at the university in September 2021 and resigned in June 2024. Her claim has two strands: events during her first period of employment, and the later failure to appoint her to a residence life welfare role. Only the first was before the appeal tribunal.

Her ET1 said she had been victimised for raising breaches of the Equality Act and other university procedures. She listed victimisation, harassment, discrimination arising from disability and a failure to make reasonable adjustments. At the end of her paper apart, under the heading "Protected disclosures", she identified two disclosures: a stressors document sent to a manager, and a letter to the principal's office. For the first she set out alleged detriments, including delay in an occupational health referral, the content of that referral, comments made in meetings and delay in implementing adjustments.

At a private preliminary hearing on 13 April 2026, Miss Arshad said her claims had been expanded to include unfair dismissal and public interest disclosure. The employment judge told her that neither appeared in the ET1 even on the most generous reading, and directed her to apply to amend within 14 days.

The appeal

Permission to appeal was granted on one ground only: that the tribunal had created a de facto strike out at a private hearing by failing to identify the protected disclosure claim. A challenge to the decision to require an amendment application for unfair dismissal was not pursued, and Miss Arshad's suggestion that constructive dismissal was also evident on the form fell outside the pleaded grounds.

The university argued that, objectively, the ET1 raised only Equality Act victimisation, and that the references to protected disclosures were a "happy accident". It pointed to Miss Arshad's own talk of "expanding" her claim as evidence that she had not meant to bring one. It accepted, however, that if a whistleblowing claim had been made, Mendy v Motorola Solutions UK Ltd [2022] ICR 9 would apply.

The Recorder rejected the university's position. He noted that Miss Arshad was a litigant in person with disabilities that might have affected her ability to cope at a hearing, and cited the observation in Cox v Adecco that a litigant pressed by a judge may "become like a rabbit in the headlights" and fail to explain a case set out in writing. In any event, subjective intention was beside the point. Following Moustache v Chelsea and Westminster Hospital NHS Foundation Trust [2025] EWCA Civ 185, the question was what emerged from an objective analysis of the statements of case.

On that analysis, the Recorder found the claim abundantly clear. Miss Arshad used the words "protected disclosures", identified the disclosures and set out the detriments said to flow from them. He also found a public interest element, noting that the letter to the principal's office alleged institutional failings affecting disabled people generally. He considered it unnecessary to look at the schedule of issues or agenda document, and doubted their relevance after Moustache. Whether the disclosures were in fact protected was not a matter for him.

Applying Mendy, he held that requiring an amendment application for a claim already pleaded amounted to a final determination, tantamount to a strike out. Because that took place at a private preliminary hearing, without the public hearing and opportunity to make representations that rule 37 of the ET Rules requires, it was an error of law.

The appeal was allowed. Paragraph 12 of the 17 April 2026 order was set aside insofar as it relates to protected disclosures, but it remains in force for any unfair dismissal claim Miss Arshad seeks to bring. No matter was remitted, so any further steps are for the tribunal.

Miss Arshad appeared in person. The university was represented by Brodies LLP.