Mr L Doherty v St Anne'S Community Services — 2019

At a preliminary hearing on 5 March 2019, Employment Judge Licorish sitting alone considered the respondent's strike-out and deposit applications. The tribunal recorded that the claimant accepted any act or omission before 4 June 2018 might be out of time and that historical matters were background only. It also noted that the claimant was no longer pursuing harassment related to race or a disability reasonable-adjustments complaint.

Applying rule 37(1)(a) of the Employment Tribunals Rules of Procedure 2013 and the authorities in Abertawe Bro Morgannwg University Health Board v Ferguson, Anyanwu, and Ezsias, the tribunal declined to strike out the direct and indirect religion or belief discrimination complaints and the detriment complaint for having made a protected disclosure. It found significant disputes of fact between the parties, said the case was not exceptional in the Ezsias sense, and noted that no undisputed contemporaneous documentation had been shown which fatally undermined the claimant's case. For the whistleblowing complaint, the tribunal also referred to section 48 Employment Rights Act 1996.

The tribunal then refused to make a deposit order under rule 39. It held that there was no proper basis for doubting the claimant's ability to establish the facts essential to the complaints in question, and that the outcome would depend on contemporaneous evidence and the credibility of witnesses. No merits findings were made beyond allowing those complaints to continue.