Claimant v The Financial Reporting Council Ltd — 2023

At the preliminary hearing on 12 September 2023, Employment Judge A Stewart sitting alone refused the claimant's request for postponement. The tribunal noted that the claimant, who was in person, had received the respondent's case authorities shortly before the hearing, but treated that as disproportionate grounds for adjournment and proceeded on the basis of oral argument about the legal issues.

The claim concerned an allegation that the claimant had been dismissed on 15 September 2022 because he made a protected disclosure on 9 August 2022. The respondent applied under Rule 37 of the ET Rules 2013 to strike out the complaint on the basis that the claimant had no reasonable prospect of showing that he made a qualifying disclosure within section 43B(1)(b) of the Employment Rights Act 1996. The tribunal refused strike out, holding that, taking the claimant's case at its highest, it could not say there was no reasonable prospect of success.

In reaching that view, the tribunal noted that 'legal obligation' is not defined in the statute and has been interpreted broadly by the courts, and that the categories are not closed. It also observed that strike out is a draconian sanction and that the issue needed detailed legal argument on the evidence.

The tribunal nevertheless found that, on the material before it, the claim had little reasonable prospect of success and therefore granted the respondent's alternative Rule 39 application for a deposit order. The deposit was set at the maximum sum of £1,000 as a condition of the claim proceeding.