Claimant v Helston Garages Group (Management) Limited — 2023

The claimant, employed by the respondent as a Sales Executive since 6 April 1998, brought whistleblowing detriment claims arising from alleged disclosures in June 2021 and the introduction of an enhanced commission scheme in August 2021. The tribunal did not make findings on the underlying detriment allegations for the purposes of this decision; the hearing was confined to limitation and abuse of process.

On limitation, the tribunal held that it could not yet determine whether the claims were out of time. It considered that the pleaded case and the evidence left open two possibilities: the exclusion from the enhanced commission scheme might have been a one-off act in 2021 with continuing consequences, or it might have been a continuing state of affairs or series of monthly acts if the claimant remained excluded from the scheme over time. Because there was insufficient evidence at the preliminary hearing to decide when the last act occurred, the tribunal refused to dismiss the claims on time grounds.

The tribunal also addressed the respondent's Henderson v Henderson argument and rejected the contention that the present claim was an abuse of process. It accepted that the claimant had brought an earlier claim in 2022 about a different commission structure, that the whistleblowing element in that earlier claim had been withdrawn and dismissed, and that the present claim was based on later-discovered facts about the enhanced scheme. The tribunal attached weight to the claimant's attempts to clarify whether he needed a new claim, his status as a litigant in person, the lack of material overlap with the first claim, and the fact that he reasonably understood from his solicitor, the tribunal's email response, and Acas that he needed to present a fresh claim.

The result was that the whistleblowing detriment claims were allowed to proceed. No compensation, basic award, or other remedy was determined in this judgment, and the tribunal said the limitation question would need to be revisited later, most likely at the final hearing, if it turned out that the claims were in fact out of time.