Case 2201866/2020 · Employment Tribunal
Mr M Macken v Skanska plc — 2021
- Case reference
- 2201866/2020
- Decision date
- 16 March 2021
- Jurisdiction
- England & Wales
- Judge
- Employment Judge A James Representation
Parties
2 namedClaimant
Mr M Macken
Respondent
Key findings
Tribunal's reasoningAt the preliminary hearing on 26 February 2021, the tribunal dealt with three claim forms from Mr M Macken against Skanska UK plc. It held that Claim 2201866/2020 and Claim 2202604/2020 were not to be rejected despite errors in the Acas early conciliation numbers on the forms, applying Rule 12(1)(da) ETR 2013 and finding that it would not be in the interests of justice to reject them. The tribunal also allowed the amended particulars to stand as further particulars of the surviving claims, except for whistleblowing detriment allegations.
The tribunal held that Claim 2204321/2020 was out of time. It found that the effective dismissal date was 20 March 2020, that the ordinary time limit expired on 19 June 2020, and that even taking the first Acas early conciliation period into account the ET1 was one day late when filed on 17 July 2020. The tribunal accepted that it was reasonably practicable to present the claim in time, noting that Mr Macken knew of the three-month limit, did not speak to solicitors until 3 July 2020, and had obtained earlier advice through his union; it therefore held that it had no jurisdiction to hear Claim 2204321/2020.
On the amendment application, the tribunal allowed the trade union, health and safety and dismissal claims in Claims 1 and 2 to be further particularised, but refused to allow whistleblowing detriment allegations to be added. It struck out the allegations about selecting the claimant for redundancy and about failing to change the redundancy matrix score as detriment claims because those matters were bound up with the redundancy selection and dismissal process, while refusing strike out or deposit orders for the remaining detriment allegations. The tribunal also refused to strike out the whistleblowing allegations, holding that whether the EWC speech and the grievance amounted to a disclosure of information under s.43B ERA 1996, and who knew what about the confidential meeting, required a full hearing of the evidence.
Claims and outcomes
4 findings recorded| Claim type | Issue or finding | Outcome | Protected characteristic | Award |
|---|---|---|---|---|
| Unfair dismissal | Ordinary unfair dismissal claim under s.98 ERA 1996 was carried forward from Claim 2 and allowed to proceed; the tribunal made no merits finding. | Other | — | — |
| Trade union | Trade union-related detriment and dismissal claims under ss.146, 152 and 153 TULRCA 1992 were allowed to proceed in substance; the allegations about selecting the claimant for redundancy and about failing to change the redundancy matrix score were struck out as detriment claims because they formed part of the dismissal and selection process. | Other | — | — |
| Other | Health and safety detriment claims under s.44 ERA 1996 were allowed to proceed; the tribunal refused strike out and deposit orders on the remaining allegations. | Other | — | — |
| Whistleblowing | Whistleblowing dismissal claim under s.103A ERA 1996 was not struck out. The tribunal refused to add whistleblowing detriment allegations by amendment, but held that whether the EWC speech and grievance were protected disclosures under s.43B ERA 1996 needed a full hearing. | Other | — | — |
Legal tests applied
7 references- Rule 12(1)(da) ETR 2013 interests of justice test
- reasonably practicable test
- Selkent amendment balancing exercise
- Cocking v Sandhurst hardship test
- Rule 37 no reasonable prospect of success
- Rule 39 deposit order test
- Cavendish Munro / Kilraine disclosure of information test
Official outcome judgment PDF
Gov.uk primary recordThe official judgment PDF on gov.uk contains the tribunal's outcome, reasoning, and any remedy details. Where this page does not yet show extracted outcomes for every claim, use the PDF as the authoritative source.
Published on gov.uk under the Open Government Licence v3.0.
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