Mr Duncan Ndegwa v Vista Care Limited and 3 others — 2020

At the preliminary hearing in Birmingham on 7 January 2020 before Employment Judge Coghlin QC sitting alone, the tribunal clarified the claimant's pleaded claims and considered the respondent's applications to strike them out or, alternatively, for a deposit order. It applied the strike-out approach summarised in Mechkarov v Citibank NA and treated the claimant's case at its highest for that purpose.

The tribunal struck out the victimisation claim under section 27 Equality Act 2010. It held that the claimant's 7 November 2018 email to Emma Macavoy did not mention discrimination or any other breach of the Act, and it could not be read as an express or implied allegation of a contravention of the Equality Act. The email was therefore not a protected act for section 27 purposes.

On the protected disclosure issue, the tribunal held that at least some parts of the claimant's 6 September 2018 letter about David Oguntuase were capable of amounting to protected disclosure(s), including allegations that he was asleep on duty, manipulated hand-over notes, and was holding onto or locking away keys so others could not escape in an emergency. It therefore rejected the respondent's argument that the whistleblowing claims had no reasonable prospect of success for want of a protected disclosure.

The tribunal also rejected the respondent's wider strike-out arguments on the discrimination and whistleblowing detriment claims. It said that, viewed holistically, the claimant's allegations included suspension soon after the protected disclosure, dismissal without a disciplinary hearing, different treatment of his own complaint, and the conduct alleged against Carlene Perkins, and that it could not safely conclude at the preliminary stage that these claims had no reasonable prospect of success. It noted that the fact that some alleged decision-makers shared protected characteristics with the claimant did not justify strike out, and it declined to strike out the remaining claims or make a deposit order. No remedy was awarded because the substantive claims were not determined.