In person For the v Respondent — 2021

Mr Khakimov had been employed by the respondent from 1 January 2013, latterly as Product Management Director, UK, and had been off work on sick leave from 17 April 2019. The respondent dismissed him on 13 January 2021 on capability grounds. In this hearing, the tribunal was dealing with his application for interim relief in the Second Claim, together with issues about whether the claim form pleaded automatic unfair dismissal for protected disclosures and whether amendment should be allowed.

The tribunal held that the Second Claim did not plead a dismissal because of protected disclosures. It found that the references in the claim form to the earlier protected disclosure claim were background only, and that the claimant had initially framed the application as if Steer v Stormsure could support interim relief for a discriminatory dismissal. Applying the Selkent approach to amendment, the tribunal refused permission to amend to add a s103A ERA 1996 claim and additional protected disclosures. It said the proposed amendment was insufficiently particularised, was outside the primary time limit, had poor prospects on the merits, and would prejudice the respondent.

On the merits of the proposed s103A claim, the tribunal said the claimant had not shown a reasonable prospect of establishing that protected disclosures were the sole or principal reason for dismissal, as required by s103A ERA 1996 and the authority of Dahou v Serco Ltd. It considered that the evidence pointed to capability following a long period of sickness absence and a refusal to cooperate with the capability process unless conditions were met. Because the amendment was refused, the tribunal held that it had no jurisdiction to consider interim relief and dismissed the application.

The respondent applied for costs of resisting the interim relief application. The tribunal held that the Rule 76 threshold was met because the claimant had acted unreasonably in pursuing a misconceived application after his misunderstanding of Steer v Stormsure had been identified. It also noted that the respondent had produced a costs schedule totalling £25,248.27 and accepted that any order should be capped at £20,000, but the tribunal did not make a final costs order at this stage. Instead, it directed the claimant to provide evidence of his financial means and any further submissions, after which the costs application would be determined on the papers.