Mr Nigel Lofthouse v St Cross Kitchens of Winchester Ltd — 2024

This was a reserved judgment following a preliminary hearing before Employment Judge Street (sitting alone) at Bristol by CVP on 10 July 2024. The Claimant, a former director of the Respondent company (a kitchen design and manufacture business of which he was one of four directors), brought claims of unfair dismissal, holiday pay, arrears of pay and failure to provide a written statement of particulars, and applied to amend his claim to add whistleblowing / protected disclosure claims. The preliminary issues were whether he was an employee or worker within s.230 of the Employment Rights Act 1996, and whether to permit the amendment.

The Tribunal found that the Claimant was an employee of the Respondent from March 2019 to a date of termination yet to be determined. The Tribunal also recorded that the Respondent's witness statements had been served in substantial breach of an earlier case management order limiting them to 3000 words; the Judge was satisfied a fair hearing remained possible and took care not to rely on the withdrawn longer statements.

The Tribunal refused permission to amend the claim to add the whistleblowing allegations. The Judge found that the proposed amendments amounted in practice to substantial new claims, largely unconnected with the original pleaded case, that would require significant additional disclosure and a substantially longer hearing. The explanation for the delay of approximately 21 months in articulating the allegations was described as flimsy, and the balance of hardship was held to operate in the Respondent's favour. The substantive claims of unfair dismissal, holiday pay, arrears of pay and written particulars were not adjudicated at this hearing and were listed for further case management on 5 September 2024.