Mr. Mark Sutton KC For the v Respondent — 2023

This was a preliminary hearing in Mr Martyn Pitman's whistleblowing detriment claim against Hampshire Hospitals NHS Foundation Trust and Ms Lara Alloway. The tribunal had to decide whether the claimant could rely on three disputed protected disclosures, whether any part of the claim should be struck out under Rule 37, and whether a deposit order should be made under Rule 39.

Employment Judge Rayner held that the pleaded case, read fairly, already contained facts capable of being re-labelled as the disputed disclosures, so no technical amendment was required. If an amendment had been necessary, the judge would have granted it in any event, applying the Selkent and Vaughan v Modality Partnership balancing exercise, because refusing it would have caused the claimant significant prejudice and the respondent still had time to adjust its case and evidence.

On strike out, alleged disclosure 2 was struck out. That allegation concerned a verbal suggestion to Alex Whitfield on 7 November 2019 that a committee should be set up to consider the validity of complaints against doctors before a formal investigation. The judge held that, even taking the claim at its highest, it had no reasonable prospect of amounting to a qualifying disclosure on the grounds advanced under s.43B ERA 1996.

The respondent's strike-out application was refused in relation to the 4 September 2020 letter and the 26 February 2021 email. The tribunal considered that, in context, and after hearing evidence, those communications might be capable of amounting to protected disclosures. The time-limit point was left for the final hearing, and the application for a deposit order was dismissed for the remaining alleged disclosures.