Mr M Clements v Secretary of State for Justice and 1 other — 2023

The tribunal heard a preliminary hearing on Mr Clements' claim that he suffered unlawful detriments on health and safety grounds after leaving work on 30 January 2021 to take a COVID test. It recorded four alleged detriments: an unresolved grievance said to have been filed on 30 January 2021, two later grievances said to have been ignored on 15 February and 22 March 2021, and a later allegation of a COVID-related absence threat on 4 July 2021.

The tribunal held that the first two grievance-related complaints were out of time. Mr Clements accepted in evidence that nothing prevented him from presenting those complaints within the normal three-month time limit, so there was no basis to extend time. His continuing-act argument failed because the grievance allegations were not sufficiently particularised and were not shown to form an ongoing state of affairs.

The remaining allegations were struck out under Rule 37(1)(a) of the Employment Tribunal Rules 2013. Applying s.44(1A)(a) and (b) ERA 1996, the tribunal found no reasonable prospect of Mr Clements showing a circumstance of danger that was serious and imminent, no reasonable prospect of establishing the required causation, and no credible basis for saying that leaving work with permission to take a COVID test amounted to protected action on the facts pleaded. The tribunal also found his conduct unreasonable and said strike out would have been proportionate under Rules 37(1)(b) and (c) if necessary.