Mr Donskoi v Hogan Lovells International LLP — 2023

This was a Rule 37 strike-out application heard by Employment Judge Kelly on 11 April 2023. The claimant had been engaged by the respondent to provide services on a significant legal matter. The tribunal noted that there was a dispute about whether he was an employee or a worker, but said it was not necessary to resolve that point for the application.

The ordinary unfair dismissal claim had already been dismissed at a preliminary hearing on 14 July 2021. The judge said that, even if it had not already been dismissed, it would be struck out because the claimant did not have the two-year qualifying period required by s.108(1) of the Employment Rights Act 1996.

The remaining claims were for automatic unfair dismissal by reason of protected disclosure and detriment arising from protected disclosure. The claimant relied on disclosures made in early November 2020, but his engagement had ended in August 2020. The tribunal recorded that the claimant had accepted at the earlier hearing that he only formed the relevant belief about a breach some 2.5 months after termination and had not made a disclosure before dismissal. On that basis, the tribunal held that the alleged protected disclosure post-dated the dismissal and that there was no reasonable prospect of success.

On costs, the tribunal found unreasonable behaviour in the claimant's communications, the volume of material filed, and the continued pursuit of the claim after the 14 July 2021 hearing. The respondent sought £20,000, saying its total costs were £21,120 inclusive of VAT; the judge treated £17,600 as the realistic figure after removing VAT, but limited the award to post-14 July 2021 costs and ordered £4,000 by way of rough justice. The final order struck out the claim and required the claimant to pay £4,000 in costs by 9 May 2023.