in person For the v Respondent — 2023

This was an open preliminary hearing on the Respondent's application to strike out part of the proceedings. The Claimant had presented complaints of whistleblowing detriment under s.47B ERA, unjustifiable discipline under ss.64 and 65 TULRCA, and automatically unfair dismissal under s.103A ERA. The judgment determined only the s.103A claim; the other complaints were left for a separate judgment.

The Claimant's s.103A ERA claim was based on the case that he had been dismissed from the Chair of Council role either when he was excluded from the nomination process closing on 22 November 2021 or, alternatively, when that fixed term would have expired on 31 December 2021. The Tribunal recorded, however, that the Claimant accepted he was not an employee of the Respondent at either of those dates, and that he had not been an employee from 13 July 2021 when he stood down as Chair of Council.

Applying the strike-out jurisdiction under Rule 37 of the Employment Tribunals Rules 2013, the Tribunal held that this admission was fatal to the s.103A claim because an employee is required for the right not to be unfairly dismissed under s.94 ERA 1996 and for s.103A to apply. The Tribunal also referred to the general strike-out authorities, including Tayside Public Transport v Reilly, Anyanwu, Ezsias, Soo Kim v Yong, Hassan v Tesco Stores and Mbuisa v Cygnet Healthcare. The claim was therefore struck out as having no reasonable prospect of success.

For completeness, the Tribunal noted that the Claimant did not allege automatically unfair dismissal before 13 July 2021, when he said he had been pressured to stand down, and that the alleged protected disclosures were said to have occurred later, in late August and early or mid-September 2021. No monetary remedy was awarded in this judgment.